dissenting.
[Filed June 30, 1993]
The question in this case is not whether a man who alleges himself to be the biological father of a child born during the marriage of the mother to another man will be entitled to parental rights to the child. The question is whether this stranger to this marriage1 has *200a constitutionally protected interest that entitles him to challenge and petition in the first instance for paternity of a child born into that marriage, despite the fact that neither the mother, the presumed father, nor the child have disputed the presumed father’s paternity. In so holding, the Court concludes that sections 11.03(a)(7) and 12.06(a) of the Texas Family Code, which do not permit a putative father to petition for paternity where the mother is not unwed, violate the due course of law guarantee of the Texas Constitution. Tex.Const.ART. I, § 19. Under the guise of denial of procedural due course of law, the Court is in fact creating a substantive due course of law interest in favor of an putative biological father to challenge paternity and obtain parental rights in derogation of the right of the marital family to protect its children from claims of illegitimacy by outsiders. With this action, I cannot agree. I dissent.
A putative biological father who claims parental rights to a child and who is also a stranger to the marriage into which the child is born does not have a common law, statutory, or constitutional interest that is protected by the Texas Constitution. At common law, a putative biological father could not bring an action for paternity. See Home of the Holy Infancy v. Kasha, 397 S.W.2d 208 (Tex.1965); L.G. v. F.O.P., 466 S.W.2d 41 (Tex.Civ.App.—San Antonio 1971, writ ref'd n.r.e.), rev’d, per curiam, Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). A putative biological father has only those rights conferred by the Texas Family Code. Section 11.03 of the Family Code provides that a putative biological father may bring a suit to establish paternity only of a child who has no presumed father, but not otherwise. Tex.Fam.Code Ann. § 11.03(a)(7). Because the putative biological father had no right at common law to maintain an action for paternity in any circumstances, the enactment of section 11.03 did not deprive him of any existing procedural remedy. Accordingly, the only question is whether a putative biological father who is a stranger to a marriage has a constitutionally created and protected interest to challenge and petition for paternity of a child born into a marriage.
The cases relied on by the Court in recognizing a constitutionally protected interest in favor of a putative biological father are not applicable. None of the cases cited by the Court involved a situation in which a stranger to a marriage sought the right to challenge and establish paternity of a child born into the marriage when neither the parties to the marriage nor the child were disputing the paternity of the child.
In reaching its decision, the Court also rejects a United States Supreme Court holding directly on point. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), the Supreme Court held that a putative biological father was not deprived of any due process rights by a state statute that prevented him from petitioning to establish his paternity of a child born into a marriage. The Court dismisses Michael H. as an “aberration.”2 872 S.W.2d at 196. To the contrary, Michael H. simply reflects a determination that not all parental-related rights are to be given the same stature and constitutional import, a distinction which this Court fails to recognize. For example, in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the United States Supreme Court afforded constitutional recognition and due process protection to a putative biological father who had “sired and raised” his children born out of wedlock. There, the Supreme Court held unconstitutional a statute that automatically placed children as wards of the state upon the death of their unwed mother without a hearing of fitness of the unwed father or proof of neglect. 405 U.S. at 658, 92 S.Ct. at 1216. The *201natural father who had lived with and raised the children claimed that the statute violated his due process rights. Although discussed in terms of the individual right of Mr. Stanley, the interest protected in Stanley is clearly an interest in preserving integrity of the family unit.3 Id. at 651, 92 S.Ct. at 1212. The interest protected in Stanley is far different from the interest claimed by a putative biological father who challenges the paternity of a child born into a marriage and who is in the eyes of the law and, in actuality, a stranger to the marriage and to the child.
Although this Court is not bound by the decisions of the United States Supreme Court in construing the due course of law provision of the Texas Constitution, I find the decisions of the United States Supreme Court, and in particular, Michael H., instructive and persuasive. See also Jack v. Jack, 796 S.W.2d 543 (Tex.App.—Dallas 1990, no writ). Even assuming that our due course of law provision is broader and protects interests not protected by the Due Process Clause of the United States Constitution, I find nothing in the jurisprudence of this State to suggest that Texas has traditionally protected and recognized the interests of an adulterous putative father to establish and obtain parental rights over the objection of the mother and presumed father and to the derogation of the marital family’s right to protect its children from claims of illegitimacy by outsiders. Accordingly, I would conclude that Larry G., the putative biological father, does not have a constitutional interest protected under Article I, section 19 of the Texas Constitution to challenge and petition for paternity of a child born into a marriage between a woman and another man, and consequently, he has not been deprived of due course of law by sections 11.03(a)(7) and 12.06(a) of the Texas Family Code.
Even if Larry G. has a constitutionally cognizable interest, the Court ignores a powerful countervailing interest, the family’s right to be free from unwanted interference and disruption by state sanctioned attempts to delegitimize the children of a marriage.4 See Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (recognizing and detailing history of constitutional protection for sanctity of family from unwanted intrusion absent compelling state interest). In Stanley, supra, the United States Supreme Court held that a putative biological father’s interest warranted due process protection “absent a powerful countervailing interest.” Stanley, 405 U.S. at 651, 92 S.Ct. at 1212. Contrary to Stanley, in which Stanley’s individual interest was synonymous with preservation of the family, the family interest in this case is a powerful countervailing interest; an interest which promotes the marital relationship, preserves intact and protects an existing family from disruption and interference by external forces, and protects the child from confusion, torn affection, and the stigma of illegitimacy. See Moore, 431 U.S. at 499-500, 97 S.Ct. at 1935-36. See A v. X, Y, and Z, 641 P.2d 1222 (Wyo.1982); Petitioner F. v. Respondent R., 430 A.2d 1075 (Del.1980).
In failing to recognize the significant countervailing constitutional interests of the family to be free from unwanted interference and attack by strangers, the Court has rendered the putative biological father’s right to peti*202tion for paternity absolute and superior to any rights of the family. To give constitutional weight to the interests of a stranger, albeit the putative biological father, without regard to the interests of the family and the state in protecting the family would invite actions by persons whose only purpose is to break up the family to satisfy a jealous or revengeful feeling.5 Where a child is born into a marriage, there are contradictory interests between the putative biological father and the family. The state cannot afford both the putative biological father and the family absolute interests. In the provisions of the Texas Family Code, the state has given preference to the interests of the family to be free from unwanted and disruptive interference.
Because the nature of the interest sought to be protected by the Court in favor of putative biological fathers is in reality a substantive due process interest rather than a procedural due process right, the interest is not absolute. Sections 11.03(a)(7) and 12.-06(a) do not impinge on a putative biological father’s substantive due process interest if they are rationally related to a legitimate state interest.6 Tex.Const.Art. I, § 19, commentary. I would hold that the legislature’s preference for the interests of the family are rationally related to the state’s interest in protecting and promoting the interests of the existing marriage and family unit and that sections 11.03(a)(7) and 12.06(a) of the Texas Family Code do not violate the due course of law guarantee of the Texas Constitution.
I would reverse the judgment of the court of appeals and affirm the trial court judgment.
. The Court suggests that Larry G. is not a stranger to the marriage because he lived with the mother briefly when she had separated from her husband. Larry is certainly a stranger to the *200marriage in the plain and simple sense that he is not a party to the marriage. The fact that Lariy may have lived with Judy for four months does not make Larry any less a stranger to the marriage. The Court’s ruling today raises a dalliance to a constitutionally protected interest.
. In the same breath that the Court rejects Michael H. as authoritative or dispositive on state Constitutional issues, the Court relies on another United States Supreme Court decision, Caban v. Mohammed, 441 U.S. 380, 389, n. 7, 99 S.Ct. 1760, 1766 n. 7, 60 L.Ed.2d 297 (1979), to support its recognition under our state’s Constitution of a constitutionally protected interest in favor of the putative father in this case.
. In Michael H., the plurality specifically noted that Stanley and Caban rested upon the sanctity traditionally accorded to relationships that develop within the unitary family. 491 U.S. at 123, 109 S.Ct. at 2341.
. The Court generally dismisses the family unit's interest in protecting its children from claims of outsiders because paternity can be determined with greater certainty through scientific testing. 872 S.W.2d at 197. I would not consider the accuracy of scientific testing to be the basis either for diminishing the family’s interests or promoting the putative biological father’s rights to constitutional proportion.
The Court specifically dismisses this family unit’s entitlement to protection of its interest because of the mother's affair with the putative biological father when the couple had separated and filed for divorce. The Court's moralistic judgment is inappropriate, but more to the point, the question presented is not whether Larry will win his claim to parental rights (e.g., custody or visitation), the question is whether he has the right to challenge paternity in the first instance. The facts of this case are irrelevant to the question because they are not developed for the record until after the challenge is permitted to be made. In any event, in this case, the mother and the presumed father reconciled before the child’s birth, have continued to live together as a married couple, and have embraced and raised the children born of their marriage as their own.
. See, e.g., Henderson v. Wietzikoski, 841 S.W.2d 101 (Tex.App. — Waco 1992, writ denied) (On application for writ of error, the record demonstrated that the putative father waited four years after the birth of the child before he sought to establish paternity and only after the mother called off the affair).
. Where, as in this case, the putative father has no relationship with the child, his biological relationship to the child alone is insufficient to give rise to a fundamental constitutional interest. See Stanley, 405 U.S. at 657-58, 92 S.Ct. at 1215-16.