dissenting.
I respectfully dissent, adopting the reasoning of the dissenting opinion in In Interest of T.E.T., 603 S.W.2d 793 (Tex.1980). I find the majority opinion in T.E.T. and the majority opinion in this case to be inconsistent with the constitutional principles expressed in the cases of Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) and Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).
In Caban, the Supreme Court declared unconstitutional sec. Ill of the New York State Domestic Relations Law (McKinney 1977), which permitted an unwed mother, but not an unwed father, to block the adoption of their child simply by withholding consent. Justice Powell, writing for the majority, said:
The State’s interest in providing for the well-being of illegitimate children is an important one. We do not question that the best interests of such children often may require their adoption into new families who will give them the stability of a normal, two-parent home. Moreover, adoption will remove the stigma under which illegitimate children suffer. But the unquestioned right of the State to further these desirable ends by legislation is not in itself sufficient to justify the gender-based distinction of sec. 111. Rather, under the relevant cases applying the Equal Protection Clause it must be shown that the distinction is structured reasonably to further these ends. As we repeated in Reed v. Reed, 404 U.S. [71], at 76, 92 S.Ct. [251], at 254 [30 L.Ed.2d 225 (1971)], such a statutory ‘classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstances shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, [40 S.Ct. 560, 561, 64 L.Ed. 989] (1920).’
We find that the distinction in sec. Ill between unmarried mothers and unmarried fathers, as illustrated by this case, does not bear a substantial relation to the State’s interest in providing adoptive homes for its illegitimate children. It may be that, given the opportunity, some unwed fathers would prevent the adoption of their illegitimate children. This impediment to adoption usually is the result of a natural parent interest shared by both genders alike; it is not a manifestation of any profound difference between the affection and concern of mothers and fathers for their children. Neither the State nor the appellees have argued that unwed fathers are more likely to object to the adoption of their children than are unwed mothers; nor is there any self-evident reason why as a class they would be.
Id. 441 U.S. at 391-92, 99 S.Ct. at 1767-68.
The Court limited its decision to older children and not newborns, saying:
*490Even if the special difficulties attendant upon locating and identifying unwed fathers at birth would justify a legislative distinction between mothers and fathers of newborns, these difficulties need not persist past infancy.
Id. at 392, 99 S.Ct. at 1768.
The Court then proceeded to discuss, in the context of the older child, whether the State’s interest in proceeding with adoption cases can he protected by means that do not draw such an inflexible gender-based distinction. The Court said:
In those eases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Indeed, under the statute as it now stands the surrogate may proceed in the absence of consent when the parent whose consent otherwise would be required never has come forward or has abandoned the child. See, e.g., In re Orlando F., 40 N.Y.2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711 (1976). But in cases such as this, where the father has established a substantial relationship with the child and has admitted his paternity, a State should have no difficulty in identifying the father even of children born out of wedlock. Thus, no showing has been made that the different treatment afforded unmarried fathers and unmarried mothers under sec. Ill bears a substantial relationship to the proclaimed interest of the State in promoting the adoption of illegitimate children.
In sum, we believe that sec. Ill is another example of “overbroad generalizations” in gender-based classifications. See Califano v. Goldfarb, 430 U.S. 199, 211, 97 S.Ct. 1021, 1029 51 L.Ed.2d 270 (1977); Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975). The effect of New York’s classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State’s asserted interests.
Id., 441 U.S. at 392-94, 99 S.Ct. at 1768-69.
When the question of requiring an unwed father, but not an unwed mother, to establish parental status in a legitimation proceeding came before the Texas Supreme Court in the case of In Interest of T.E.T., the' majority of that Court attempted to distinguish the Caban case from the case before it on the basis that the child in T.E.T. was a newborn child with which the father only had a potential relationship, whereas the child in Caban was an older child with which the father had an established relationship. In Interest of T.E.T., 603 S.W.2d at 797-98. Justice Barrow, writing for the majority, relied on the “special difficulties” discussed in Caban. Id. The “special difficulties” discussed in Ca-ban were the special difficulties attendant upon locating and identifying unwed fathers at birth which “need not persist past infancy.” Caban v. Mohammed, 441 U.S. at 392, 99 S.Ct. at 1768. In the case before us today, the natural father not only was located and identified at birth, but, unlike the father in Caban, was actually in court seeking to exercise his full responsibility as a parent. Since the “special difficulties” referred to in Caban did not exist in this case even in infancy, there is no reason why the rule stated in Caban should not be applicable.
*491In addition to In Interest of T.E.T., the majority of this court also relies on the cases of In Interest of K., 535 S.W.2d 168 (Tex.1976) and In re Baby Girl S., 628 S.W.2d 261 (Tex.App.—Eastland 1982, writ ref’d n.r.e.).1
As noted by the dissent in T.E.T., the case of In Interest of K. was decided before the opinion announced in Caban, which established a more stringent test to be used in determining equal protection claims. In Interest of T.E.T., 603 S.W.2d at 799. The Baby Girl S. case is based on the majority opinion in T.E.T. In re Baby Girl S., 628 S.W.2d at 262-64. While the Baby Girl S. case is factually comparable to this case, I differ with its legal conclusion because of its conflict with the principles expressed in Caban.
Although this court must ordinarily defer to the opinions of the Texas Supreme Court, we are bound by the decisions of the United States Supreme Court, in questions involving the United States Constitution. See 21 C.J.S. Courts sec. 206 (1940) and cases cited therein. I would sustain appellant’s points of error dealing with equal protection.
The cases of Caban and T.E.T. were both decided based upon what is called the “intermediate standard” of equal protection analysis, which the Supreme Court of the United States has adopted in cases where the questioned classification is based on sex. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The intermediate standard examines the classification to see if it is substantially related to an important state interest. Id. at 197, 97 S.Ct. at 456. Appellant’s claim under the Texas Equal Rights Amendment must be analyzed using the “strict scrutiny” test for equal protection analysis, a more stringent standard. Mercer v. Bd. of Trust., North Forest I.S.D., 538 S.W.2d 201, 206 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). For a discussion of the equal protection analysis tests, see Annot., 60 L.Ed.2d 1188, 1190-92 (1980). Any such classification must fall unless the party defending it can show that it is required by (1) physical characteristics, (2) other constitutionally protected rights such as the right of privacy, or (3) other compelling reasons, which means that it must be established that the differential treatment is necessary to promote a compelling state interest. Mercer v. Bd. of Trust., North Forest I.S.D., 538 S.W.2d at 206; see Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). A compelling state interest is one which the state is forced or obliged to protect. Dunham v. Pulsifer, 312 F.Supp. 411, 417 (D.Vt.1970). Coleman v. Coleman, 32 Ohio St.2d 155, 291 N.E.2d 530, 534 (1972); It must further be shown that the compelling state interest may not be accomplished by other reasonable means, without the necessity of the suspect classification. Dunn v. Blumstein, 405 U.S. at 343, 92 S.Ct. at 1003.
I would find that the appellees have failed to meet their burden in showing that any compelling state interest requires the automatic deprivation of parental rights of an unwed father whose identity and location are known at the time of birth, and who from the time of birth has actively sought a custodial, personal, and financial relationship with his child. Appellees have also failed to show that there are no other reasonable means to terminate an unwed father’s parental rights as might be accomplished through a termination proceeding under Chapter 15 of the Texas Family *492Code. The opinion of the Eastland Court in In re Baby Girl S., is based on the majority opinion in T.E.T. In re Baby Girl S., 628 S.W.2d at 262-64. The Texas Supreme Court has not ruled on this question. I would sustain appellant’s point of error based upon the Texas Equal Rights Amendment.
With respect to the appellant’s due process claim, the majority opinion in Lehr v. Robertson, which was decided after In Interest of T.E.T., discusses the unwed father’s inchoate right to establish a relationship with his child. This case, if construed very strictly, is only authority for the requirement of notice of adoption to someone, such as the appellant, who has tried to establish a relationship with his child. However, the language used in Lehr also infers a right of a natural father, if he seeks to do so in a timely fashion, to establish a relationship with his child. See In re Baby Girl M., 37 Cal.3d 65, 207 Cal.Rptr. 309, 315, 688 P.2d 918, 924-25 (1984) and Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 OHIO ST.L.J. 313-382 (1984). In Lehr, the Court held that the State of New York did not violate the rights of an unwed father by failing to give him notice prior to the adoption of his child by the child’s stepfather, even though he had a visitation and paternity action pending at the time of the adoption. In the two years since the child’s birth, Lehr had not taken any legal steps to establish a parental relationship with the child and had not otherwise established such a relationship. With respect to Lehr’s due process claim, the Court held that the mere existence of a biological link does not merit equivalent constitutional protection, as compared to an unwed father who demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, by acting as a father toward his children. Lehr v. Robertson, 103 S.Ct. at 2993. Such a father’s interest in personal contact with his child acquires substantial protection under the due process clause. Id. Justice Stevens said that:
[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.... Appellant has never had any significant custodial, personal, or financial relationship with [the child], and he did not seek to establish a legal tie until after she was two years old. We are concerned only with whether New York has adequately protected his opportunity to form such a relationship.
Id. at 2993-94.
Justice Stevens then discussed the New York statutory scheme which establishes a putative father registry, a mechanism established to enable an unwed father to register his relationship with his child. Id. at 2994-95. The Court concluded the discussion of the father’s due process claim by saying that it was without merit “[s]ince the New York statutes adequately protected appellant’s inchoate interest in establishing a relationship.” Id. at 2995.
In the case at bar, the State of Texas protected appellant’s right to notice, but it prevented, rather than protected, his inchoate right to establish, on a timely basis, a relationship with his child. For that reason, I would sustain appellant’s points of error dealing with due process.
I would reverse the judgment of the trial court, render judgment that appellant is a parent of Baby Boy McLean, and remand this cause to the trial court for further proceedings consistent with this opinion.
JOE SPURLOCK II, J., joins.. The United States Supreme Court granted the father’s petition for writ of certiorari in Baby Girl S., then vacated the judgment and remanded the cause to the Eastland Court to determine whether the natural father could have obtained and might still obtain a decree designating him as the father of the child pursuant to the paternity suit provisions of the Texas Family Code (Sections 13.01-13.09), without a showing of best interest. Kirkpatrick v. Christian Homes of Abilene, 460 U.S. 1074, 103 S.Ct. 1760, 76 L.Ed.2d 337 (1983). Upon remand, the Eastland court found that it had no authority to remand an errorless judgment for proceedings under a different theory and reinstated its judgment. In re Baby Girl S., 658 S.W.2d 794, 796 (Tex.App.—Eastland 1983, writ ref'd n.r.e.). That decision was not appealed to the United States Supreme Court.