Bolden v. Doe (In re Adoption of J.S.) , 2014 UT 51 ( 2014 )


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  •                 This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2014 UT 51
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    ———————
    In the Matter of the Adoption of J.S., a minor child.
    ———————
    WILLIAM E. BOLDEN,
    Appellant and Intervenor,
    v.
    JOHN and JANE DOE,
    Appellees and Petitioners.
    ———————
    No. 20120751
    Filed November 4, 2014
    ———————
    Fourth District, Provo Dep‘t
    The Honorable Lynn W. Davis
    No. 114402317
    ———————
    Attorneys:
    Mark W. Wiser, Scott B. Wiser, Salt Lake City, for appellant
    Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees
    ———————
    JUSTICE LEE announced the judgment of the court and authored
    the opinion of the court as to Parts I, II.A.1, II.A.2.a–b, and II.B,
    and a plurality opinion with respect to Parts II.A.2.c and II.A.3.
    CHIEF JUSTICE DURRANT joined JUSTICE LEE‘s opinion in full.
    JUDGE ORME concurred in the judgment and joined JUSTICE LEE‘s
    opinion with respect to Parts I, II.A.1, II.A.2.a–b, and II.B.
    ASSOCIATE CHIEF JUSTICE NEHRING filed a dissenting opinion.
    JUSTICE PARRISH filed a dissenting opinion.
    Having recused herself, JUSTICE DURHAM did not participate
    herein; DISTRICT JUDGE GREGORY K. ORME sat.
    ———————
    JUSTICE LEE, opinion of the Court in part:
    ¶1 William Bolden is the putative father of a child (J.S.) born in
    2011. The case before us on appeal is an adoption proceeding in-
    In re Adoption of J.S.
    Opinion of the Court
    volving John and Jane Doe, the would-be adoptive parents of J.S.
    Bolden tried to intervene in and object to the Does‘ adoption of
    J.S. He was barred from doing so because he failed to preserve his
    legal rights as a father by filing a paternity affidavit within the
    time prescribed by Utah Code section 78B-6-121(3).
    ¶2 This provision of the Utah Adoption Act prescribes the re-
    quirements that an unwed father must meet in order to secure the
    right to assert his parental rights and object to an adoption. It is
    aimed at protecting the best interests of children born out of wed-
    lock—to ensure that such children have the benefit of a parent
    committed to preserving their well-being. Unwed mothers acquire
    parental rights—and the accompanying right to object to an adop-
    tion—as a result of the objective manifestation of the commitment
    to the child that is demonstrated by their decision to carry a child
    to term. An unwed father‘s legal obligation to file the paternity
    affidavit is a rough counterpart to the mother‘s commitment.
    When a child is born out of wedlock, the mother, the father, or
    both may assert their parental rights and thereby foreclose an
    adoption. But if the mother and father choose to waive that
    right—or, in the case of a father, fails to assert the right by filing
    the paternity affidavit in a timely fashion—then the child may be
    placed for adoption.
    ¶3 Utah law is roughly in line with the adoption laws of all
    states across the country. In every state unwed fathers are re-
    quired to fulfill legal requirements not imposed on unwed moth-
    ers—most commonly, a filing aimed at establishing the father‘s
    paternity. See infra ¶ 79 n.35. In Utah and elsewhere, the failure to
    fulfill such requirements in the timeframe required by law
    amounts to a waiver of the unwed father‘s right to object to an
    adoption. This consequence is essential to the goal of protecting
    children by facilitating adoption. Without a requirement of a time-
    ly paternity filing, adoptions would be inhibited by being left in
    limbo.
    ¶4 The affidavit requirement in Utah law takes the matter of a
    paternity filing a minor step further—by requiring the father not
    just to assert and establish paternity, but also to attest under oath
    that he is able and willing to provide for the child. UTAH CODE
    § 78B-6-121(3). But this is a simple, straightforward hurdle—one
    that countless unwed fathers have cleared, in a manner preserving
    their parental rights and their prerogative of foreclosing adoption.
    2
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                           Opinion of the Court
    ¶5 Bolden failed to fulfill this requirement, and in this case he
    challenges it as unconstitutional. We reject his constitutional chal-
    lenges and therefore affirm the district court‘s denial of his motion
    to intervene in the Does‘ adoption of J.S.
    ¶6 First, we uphold the affidavit requirement against Bolden‘s
    due process challenge. Bolden does not claim that the Adoption
    Act infringes his procedural due process right to notice and an
    opportunity to be heard; nor could he, as his failure to file the af-
    fidavit is a result of his own procedural misstep (allegedly in ac-
    cordance with the misadvice of counsel) and not some procedural
    defect in the law. And Bolden fails to establish an infringement of
    a fundamental right of substantive due process, as he fails to
    present evidence that the right he asserts (to preserve his rights as
    an unwed father without filing an affidavit) is a matter deeply
    rooted in established history and tradition.
    ¶7 Second, we also uphold the affidavit requirement against
    Bolden‘s equal protection challenge. We do so by recognizing the
    importance of the state‘s interests in protecting children by facili-
    tating the adoption process, and by concluding that those interests
    are substantially advanced by the statutory affidavit requirement.
    We likewise reject Justice Nehring‘s assertion that this require-
    ment is an indication of invidious discrimination or sex-based ste-
    reotyping. See infra ¶¶ 93-98, 111.
    ¶8 There is doubtless room for disagreement about whether
    our legislature has struck the best balance as a matter of policy.
    But we see no basis for deriding our law as a product of ―invi-
    dious gender stereotypes.‖ Infra ¶ 88. At some level all adoption
    laws discriminate against unwed fathers—by requiring of them
    some legal filing not required of unwed mothers. Such require-
    ments are not an indication of stereotype or discrimination. They
    are simply an element of a legal scheme aimed at assuring that
    any parent who would block an adoption has manifested a com-
    mitment to the child‘s best interests. And we uphold the Utah
    Adoption Act as constitutional on the basis of its advancement of
    those important interests.
    I
    ¶9 In the summer of 2010, Bolden was involved in a sexual re-
    lationship with S.B. The two were not married. S.B. eventually got
    pregnant. Approximately two weeks before the baby was born,
    3
    In re Adoption of J.S.
    Opinion of the Court
    Bolden filed a petition in the district court seeking to adjudicate
    paternity and to establish custody, parent time, and child support.
    ¶10 Bolden‘s unsigned, unverified petition asserted that he was
    ―a fit and proper parent.‖ It sought ―sole physical and legal care,
    custody, and control of [his] unborn child should [S.B.] decide not
    to raise the child and attempt to put the child up for adoption.‖ In
    the petition Bolden also asserted that ―a child support order
    should enter, effective immediately,‖ consistent with statutory
    guidelines, including an obligation to obtain health insurance for
    the child.
    ¶11 One week later, Bolden filed in Utah‘s putative father regi-
    stry a sworn and notarized notice that he had commenced pater-
    nity proceedings regarding S.B.‘s unborn child. But he did not file
    a separate affidavit asserting his willingness to assume custody of
    the child and to submit to a child support order, or disclosing his
    childcare plans, as required by Utah Code section 78B-6-121(3)(b).
    Bolden attributes his deficiency in this regard to his attorney‘s
    failure to advise him that such an affidavit was required. Though
    Bolden offered—both before and after the birth of the child—to
    pay S.B.‘s pregnancy-related medical expenses, S.B. refused to ac-
    cept anything from Bolden, believing that her insurance would
    cover all costs.
    ¶12 The child, a boy, was born on March 26, 2011. Bolden in-
    itially visited the child in the hospital twice, but was thereafter re-
    fused access and thus prevented from having any further contact.
    Three days after the birth, S.B. determined that she wanted to pro-
    ceed with an adoption and executed a consent to adoption before
    Judge Lyon of the Second District Court.1 S.B. relinquished the
    child to the prospective adoptive parents (the Does), who com-
    menced an adoption proceeding that same day. Though their
    adoption petition acknowledged that they knew the identity of
    the child‘s father and that the father had made some effort to es-
    tablish parental rights, they asserted that the father‘s failure to file
    1 The paternity and adoption actions originally proceeded sep-
    arately—the former in Second District Court before Judge Lyon,
    the latter in Fourth District Court before Judge Davis. They were
    consolidated before Judge Davis upon joint stipulation and mo-
    tion of the parties.
    4
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                           Opinion of the Court
    an affidavit along with his paternity petition was determinative of
    his rights—in short, that he had none.
    ¶13 The Does thereafter notified Bolden of their intent to adopt
    J.S. without Bolden‘s consent. Bolden moved to intervene in the
    adoption proceeding, seeking to prevent the adoption and to as-
    sert his parental rights. Between receiving the Does‘ Notice of
    Adoption Proceedings and filing his motion to intervene, Bolden
    also filed the affidavit required by section 78B-6-121(3).
    ¶14 The adoptive parents opposed Bolden‘s motion to inter-
    vene, arguing that Bolden could not prevent the adoption because
    he had not complied with the statute by filing an affidavit before
    S.B. relinquished the child. Bolden acquired new counsel and
    challenged the constitutionality of section 78B-6-121(3)‘s affidavit
    requirement, moving for summary dismissal of the adoption peti-
    tion on federal and state constitutional grounds. Bolden also
    sought dismissal on the ground that he was the undisputed father
    of J.S., that he did not consent to the adoption, and that he had
    strictly and timely complied with most of the applicable statutory
    requirements.
    ¶15 The district court heard oral argument on the motions and
    issued a memorandum decision rejecting Bolden‘s constitutional
    challenges. It concluded that Bolden had no right to contest the
    adoption because he had not filed the affidavit required under
    Utah Code section 78B-6-121(3). In rejecting Bolden‘s constitution-
    al claims, the district court found that the affidavit requirement
    related directly to the state‘s interests in requiring unwed fathers
    to demonstrate a full commitment to their parental responsibili-
    ties, in minimizing the risk of disrupting adoptions, and in pro-
    tecting the rights of unwed mothers.
    ¶16 Upon issuance of a final order dismissing Bolden‘s inter-
    vention and summary judgment motions, Bolden filed this appeal.
    Bolden‘s appeal challenges the district court‘s judgment on legal
    grounds. Our review is accordingly de novo. See Manzanares v.
    Byington (In re Adoption of Baby B.), 
    2012 UT 35
    , ¶ 41, 
    308 P.3d 382
    .
    II
    ¶17 Under our Adoption Act, the consent of an unmarried bio-
    logical father is not generally required for the adoption of a child
    who is six months of age or less at the time of placement. See
    UTAH CODE § 78B-6-121(3). Yet the statute prescribes an important
    5
    In re Adoption of J.S.
    Opinion of the Court
    exception to the general rule. An unmarried biological father‘s
    consent is required if, before the time the mother executes consent
    for adoption or relinquishes the child for adoption, the father:
    (a) initiates proceedings in a district court of Utah to
    establish paternity under Title 78B, Chapter 15, Utah
    Uniform Parentage Act;
    (b) files with the court that is presiding over the pa-
    ternity proceeding a sworn affidavit:
    (i) stating that he is fully able and willing to
    have full custody of the child;
    (ii) setting forth his plans for care of the child;
    and
    (iii) agreeing to a court order of child support
    and the payment of expenses incurred in connec-
    tion with the mother‘s pregnancy and the child's
    birth;
    (c) consistent with Subsection (4), files notice of the
    commencement of paternity proceedings, described
    in Subsection (3)(a), with the state registrar of vital
    statistics within the Department of Health, in a con-
    fidential registry established by the department for
    that purpose; and
    (d) offered to pay and paid, during the pregnancy
    and after the child‘s birth, a fair and reasonable
    amount of the expenses incurred in connection with
    the mother's pregnancy and the child‘s birth, in ac-
    cordance with his financial ability . . . .
    
    Id. § 78B-6-121(3).
      ¶18 Bolden acknowledges his failure to comply with the affida-
    vit requirement of subsection (b) above. Yet he seeks to excuse
    such failure by challenging the constitutionality of the statutory
    requirement, asserting that it violates his rights to due process,
    uniform operation of laws, and equal protection. We find no merit
    in any of Bolden‘s constitutional claims2 and accordingly affirm.
    2  Bolden does not cleanly distinguish between federal and
    state constitutional claims. He frames his arguments in terms of
    state constitutional protections, yet frequently relies on caselaw
    interpreting federal rights. E.g., Lehr v. Robertson, 
    463 U.S. 248
    (1983) (analyzing federal due process and equal protection);
    6
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                            Opinion of the Court
    A. Due Process
    ¶19 In addressing Bolden‘s due process arguments, we first cla-
    rify the distinction between procedural and substantive due
    process and identify the nature of the claim before us here. After
    classifying Bolden‘s due process challenge as substantive, we then
    establish the governing legal framework and standard of scrutiny,
    and finally proceed to reject Bolden‘s arguments under the appli-
    cable standards.
    1. Substance v. Procedure
    ¶20 The Due Process Clause has been construed to encompass
    both a procedural and a substantive component. Under the pro-
    cedural component, the courts have long recognized a general
    right to notice and an opportunity to be heard. See United Student
    Aid Funds, Inc. v. Espinosa, 
    559 U.S. 260
    , 272 (2010); Long v. Ethics &
    Discipline Comm. of the Utah Supreme Court, 
    2011 UT 32
    , ¶ 29, 
    256 P.3d 206
    . Thus, for rights the law deems subject to formal process
    (in courts or other adjudicative bodies), due process requires no-
    tice reasonably calculated to inform parties that their rights are in
    jeopardy3 and a meaningful opportunity to be heard in the course
    of such proceedings.4 See Wells v. Children’s Aid Soc. of Utah, 
    681 P.2d 199
    , 204 (Utah 1984) (explaining that procedural due process
    requirements encompass the ―notice and opportunity to be heard‖
    Thurnwald v. A.E., 
    2007 UT 38
    , 
    163 P.3d 623
    (analyzing both feder-
    al and state due process in constitutional avoidance); Wells v.
    Children’s Aid Soc’y of Utah, 
    681 P.2d 199
    (Utah 1984) (analyzing
    both federal and state due process rights). And he makes little or
    no effort to identify anything in the text or history of the Utah
    Constitution dictating an analysis that is distinct from that called
    for under federal precedent. We accordingly analyze Bolden‘s due
    process argument under federal standards and his uniform opera-
    tion of law arguments under our precedent applying equal protec-
    tion doctrines.
    3 See Mullane v. Cent. Hanover Bank & Trust Co., 
    339 U.S. 306
    ,
    314 (1950); Jackson Constr. Co. v. Marrs, 
    2004 UT 89
    , ¶ 10, 
    100 P.3d 1211
    .
    4 See Turner v. Rogers, 
    131 S. Ct. 2507
    , 2517 (2011); Chen v. Ste-
    wart, 
    2004 UT 82
    , ¶ 68, 
    100 P.3d 1177
    .
    7
    In re Adoption of J.S.
    Opinion of the Court
    that ―must be observed in order to have a valid proceeding affect-
    ing life, liberty, or property‖) (emphasis added).
    ¶21 The due process right to an opportunity to be heard may be
    lost due to a procedural misstep, however. A statute of limita-
    tions, for example, may foreclose a cause of action before it is ever
    litigated on its merits.5 A procedural bar prescribed by statute has
    a similar effect.6
    ¶22 Such limitations may be challenged on either procedural or
    substantive due process grounds. A procedural due process attack
    on a statute of limitations or procedural bar would take the form
    of an assertion that such a limitation forecloses any meaningful
    opportunity for the plaintiff to protect its rights.7 A substantive
    challenge would take a different form. It would involve a broad-
    5 See Davis v. Provo City Corp., 
    2008 UT 59
    , ¶ 27, 
    193 P.3d 86
    (right to bring an action may be foreclosed by statutes of limita-
    tions, which ―cut off the right to bring an action after a particular
    period of time‖).
    6 See UTAH CODE § 63G-7-401(2) (containing the Utah Govern-
    ment Immunity Act provision that any claimant with a right of
    action must, as a prerequisite to filing suit, file written notice of
    the claim with the government entity before maintaining the ac-
    tion).
    7   See Logan v. Zimmerman Brush Co., 
    455 U.S. 422
    , 437 (1982)
    (explaining due process requires ―an opportunity . . . granted at a
    meaningful time and in a meaningful manner . . . for [a] hearing ap-
    propriate to the nature of the case‖ (alteration in original) (internal
    quotation marks omitted)); Terry v. Anderson, 
    95 U.S. 628
    , 632–33
    (1877) (upholding a nine-month and seventeen-day statute of limi-
    tations on the ground that ―[t]his court has often decided that sta-
    tutes of limitation affecting existing rights are not unconstitution-
    al, if a reasonable time is given for the commencement of an ac-
    tion before the bar takes effect‖); Burford v. State, 
    845 S.W.2d 204
    ,
    207, 208 (Tenn. 1992) (holding that a three-year limitation on pre-
    senting post-conviction claims ―provides a reasonable opportuni-
    ty‖ for doing so, but striking the requirement as applied to a de-
    fendant whose post-conviction claim did not accrue until after the
    limitation had passed, as he was ―deprive[d] . . . of such a reason-
    able opportunity‖).
    8
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                           Opinion of the Court
    side attack on the fairness of the procedural bar or limitation, on
    the ground that the right foreclosed is so fundamental or impor-
    tant that it is protected from extinguishment.8
    ¶23 Bolden‘s claim is of the latter variety. He nowhere claims
    that the Adoption Act forecloses his meaningful access to the jus-
    tice system.9 Nor could he. The affidavit requirement is simple
    8  See Montagino v. Canale, 
    792 F.2d 554
    , 557–58 (5th Cir. 1986)
    (discussing framework for substantive due process challenge to
    statute of limitations); Crier v. Whitecloud, 
    496 So. 2d 305
    , 308–09
    (La. 1986) (upholding a medical malpractice statute of limitations
    against a due process challenge on rational basis review); Valen-
    tine v. Thomas, 
    433 So. 2d 289
    , 293 (La. Ct. App. 1983) (establishing
    framework for substantive due process challenges under state
    constitution to statute of limitations); State v. Egdorf, 
    77 P.3d 517
    ,
    521–22 (Mont. 2003) (―Substantive due process bars arbitrary go-
    vernmental actions regardless of the procedures used to imple-
    ment them . . . .‖).
    9  Applicable standards of procedural due process do not yield
    free-wheeling authority for the courts to second-guess the wisdom
    or fairness of legislative policy judgments. As the dissent indi-
    cates, the courts have long held that ―an unwed father who ‗de-
    monstrates a full commitment to the responsibilities of parent-
    hood by ‗com[ing] forward to participate in the rearing of his
    child,‘ acquires ‗substantial protection‘ under the due process
    clause.‖ Infra ¶ 123 (Nehring, J., dissenting) (quoting Lehr v. Ro-
    bertson, 
    463 U.S. 248
    , 261 (1983)). But that interest is a substantive
    interest in an inchoate fundamental right. And that inchoate right
    is perfected only when the father follows reasonable state laws re-
    gulating the manner in which he is to demonstrate his ―full com-
    mitment to the responsibilities of parenthood.‖ Infra ¶ 123 (Nehr-
    ing, J., dissenting) (internal quotation marks omitted). A failure to
    do so, moreover, means that the inchoate right is lost.
    Nothing in the cases Justice Nehring cites yields a judicial pre-
    rogative to second-guess the wisdom of state law standards for a
    father‘s perfection of his inchoate rights under the guise of proce-
    dural due process. The courts are in no position to second-guess
    the proper length of a particular statute of limitations under a
    procedural due process balancing test. And we are likewise in no
    position to second-guess the wisdom of the legislature‘s policy
    9
    In re Adoption of J.S.
    Opinion of the Court
    and straightforward. And Bolden failed to fulfill it not because it
    was difficult but because his counsel allegedly gave him bad legal
    advice. See infra ¶ 63.
    ¶24 Thus, Bolden‘s argument is framed as a substantive chal-
    lenge to the fairness of the affidavit requirement.10 Throughout his
    opening and reply briefs, Bolden repeatedly characterizes his
    claim as one challenging the statutory affidavit requirement as
    ―substantively unconstitutional‖ and as aimed at establishing a
    ―fundamental,‖ ―substantive right‖ of an unwed father as a par-
    ent.
    ¶25 Justice Nehring‘s dissent portrays Bolden‘s case differently.
    It insists that Bolden‘s arguments encompass both procedural and
    substantive due process, while conceding that Bolden briefed only
    the latter. Infra ¶¶ 114, 116. And it contends that Bolden asserts
    that the affidavit requirement may deprive him of the procedural
    right ―to be heard ‗at a meaningful time and in a meaningful
    manner.‘‖ Infra ¶ 117 (Nehring, J., dissenting) (quoting Mathews v.
    Eldridge, 
    424 U.S. 319
    , 333 (1976)). But the argument put forward
    decisions regarding statutory prerequisites to establish an unwed
    father‘s parental rights.
    The In re Baby Girl T. case cited by the dissent, infra ¶ 124, is
    not to the contrary. There we did not extend the Mathews balanc-
    ing test to a matter that the legislature placed outside the bounds
    of adjudicative process. Instead, in a matter directed precisely
    within those bounds (of an unwed father seeking to assert his sta-
    tutory right to participate in judicial proceedings), we engaged in
    standard analysis of the procedural due process question of the
    core right of notice and an opportunity to be heard. See R.C.S. v.
    A.O.L. (In re Baby Girl T.), 
    2012 UT 78
    , ¶¶ 16–32, 
    298 P.3d 1251
    .
    Thus, Baby Girl T. is not a case establishing the propriety of proce-
    dural due process analysis of a substantive limit on access to an
    adjudicative proceeding. It is a core application of procedural due
    process analysis within such a proceeding, and as such it has no
    application here.
    10  See Black v. Sec. of Health & Human Servs., 
    93 F.3d 781
    , 789
    (Fed. Cir. 1996) (rejecting a procedural due process challenge and
    declining to apply procedural analysis where ―what the petition-
    ers [really] object to is not the denial of a hearing, but the substan-
    tive rule of eligibility that has been applied to them‖).
    10
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                            Opinion of the Court
    by the dissent appears nowhere in Bolden‘s briefs. Bolden no-
    where complains of the sufficiency of the notice he was given un-
    der Utah law or of the adequacy of the opportunity he was pro-
    vided to ―‗submit evidence‘‖ or to otherwise prepare or present
    his case in court. See infra ¶ 121 (quoting Christiansen v. Harris, 
    163 P.2d 314
    , 317 (Utah 1945)). Thus, neither Mathews v. Eldridge nor
    Christiansen v. Harris is anywhere cited by Bolden on appeal. Nor
    are any of the other cases cited by Justice Nehring in support of
    his concerns regarding the ―procedural protections‖ inherent in
    the right to procedural due process. Infra ¶ 121.11
    ¶26 Bolden‘s only allusion to procedural due process in his
    briefs is in a defensive response to arguments put forward by the
    adoptive parents. In his opening brief, Bolden reiterated his claim
    to a substantive right to a fair ―opportunity to develop a relation-
    ship with his newborn and thereby convert his provisional rights
    into vested parental rights,‖ while asserting that ―this opportunity
    interest could easily be rendered illusory if the state was free to
    11  Tellingly, even Justice Nehring‘s analysis is ultimately fo-
    cused on matters of substance, not procedure. Instead of question-
    ing the extent of the notice to Bolden or of the opportunity to
    present his case, the dissent ultimately asserts—in a section of the
    opinion captioned ―Procedural Due Process‖—that the statutory
    affidavit requirement is ―so onerous and arbitrary that [it] vi-
    olate[s] . . . due process.‖ Infra ¶ 126. The basis for that conclusion,
    moreover, bears no relation to the standards of procedural due
    process outlined in the cases cited earlier in the dissenting opi-
    nion. Compare infra ¶¶ 119–20 (citing Mathews v. Eldridge for a ba-
    lancing test dictating the appropriate level of adjudicative proce-
    dure based on a weighing of the ―private interest‖ affected and
    the costs and value of additional procedures), with 
    Montagino, 792 F.2d at 557
    –58 (noting that on substantive due process challenge
    to statute of limitations the standard was one of ―whether the sta-
    tute is arbitrary‖). Instead of weighing the costs and benefits of
    additional adjudicative procedures, the dissent simply asserts that
    the statutory affidavit requirement is ―so onerous and arbitrary‖
    that it crosses a ―line‖ envisioned by the dissent as establishing
    the bounds of ―fundamental fairness.‖ Infra ¶ 126. That conclusion
    is indistinguishable from that set forth in the substantive due
    process section of the dissenting opinion—a point that reinforces
    the inherently substantive nature of the issue on appeal.
    11
    In re Adoption of J.S.
    Opinion of the Court
    impose ‗any process‘ it wanted on a father‘s ability to perfect his
    provisional interest.‖ The adoptive parents seized on this formu-
    lation in their responsive brief on appeal. To the extent Bolden
    claimed a violation of an opportunity to be heard, the adoptive
    parents quoted our cases for the proposition that ―the test for
    whether a provision of the Adoption Act‘s putative father provi-
    sions passes due process muster is whether ‗[t]he Act [] give[s]
    him a meaningful and adequate procedure to protect this inter-
    est.‘‖ R.C.S. v. A.O.L. (In re Adoption of Baby Girl T.), 
    2012 UT 78
    ,
    ¶ 20, 
    289 P.3d 1251
    . And under that standard, the adoptive par-
    ents asserted that Bolden‘s claim failed as a matter of law because
    the affidavit requirement was ―meaningful and adequate‖ and
    because Bolden admittedly failed to comply with it.
    ¶27 Bolden responded in his reply brief by repudiating any re-
    liance on procedural due process. While acknowledging the adop-
    tive parents‘ argument ―that an unwed father‘s due process rights
    are merely procedural‖ and are satisfied by ―whatever ‗process‘
    the legislature offers him,‖ Bolden emphasized the substantive na-
    ture of his due process claim. Specifically, Bolden confirmed that
    his due process challenge was to the ―substantive constitutionality
    of the affidavit requirement at issue,‖ while emphasizing that that
    claim subsisted regardless of whether the statutory limitations in
    question were ―applied in a procedurally fair manner.‖
    ¶28 Thus, in its content and its terminology, Bolden‘s claim
    sounds only in substantive due process.12 We accordingly proceed
    to establish the standard of scrutiny that applies to this claim.
    12 In any event, a procedural due process claim would fall flat
    in this case even under the cases cited by Justice Nehring‘s dis-
    sent. ―[T]he State certainly accords due process when it terminates
    a claim for failure to comply with a reasonable procedural or evi-
    dentiary rule.‖ 
    Logan, 455 U.S. at 437
    (first emphasis added); see
    also Hammond Packing Co. v. Arkansas, 
    212 U.S. 322
    , 350–51 (1909)
    (default judgment as discovery sanction for failure to produce
    evidence not a violation of due process). Bolden failed to do just
    that. He failed to present evidence (an affidavit) essential to his
    claim, and he is accordingly in no position to complain that his
    own failure amounted to a violation of procedural due process.
    The dissent‘s other cases are unavailing. This is not a case of a
    claimant who is foreclosed from protecting his interests by an ina-
    bility to comply with a procedural requirement in the first place.
    12
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                            Opinion of the Court
    2. Standard of Scrutiny
    ¶29 The right to due process is principally about process—
    procedure, not substance. Most of this court‘s caselaw in the field
    is thus about the nature and extent of the notice required by the
    constitution, and of the opportunity to be heard once such notice is
    afforded. See Wells v. Children’s Aid Soc’y of Utah, 
    681 P.2d 199
    , 204
    (Utah 1984) (noting that ―[m]ost due process cases concern proce-
    dural requirements, notably notice and opportunity to be heard‖).
    The same is true at the federal level. For the most part, the due
    process precedent in the United States Supreme Court likewise is
    aimed at clarifying the kind of notice and opportunity to be heard
    that is guaranteed by the constitution.13
    See 
    Logan, 455 U.S. at 424
    –26, 435–36 (holding that a state labor
    commission failed to convene a procedurally required hearing,
    thus depriving litigant of future hearing); People v. Germany, 
    674 P.2d 345
    , 351–52 (Colo. 1983) (involving a three-year time bar on
    all post-conviction collateral attack, the effect of which was to
    ―immediately cut off this right for all persons whose convictions
    antedate the statute by an interval of time in excess of the statuto-
    ry limitation period‖); 
    Burford, 845 S.W.2d at 208
    (three-year limi-
    tation on presenting post-conviction claims ―provides a reasona-
    ble opportunity‖ for doing so, but striking the requirement as ap-
    plied to a defendant whose post-conviction claim did not accrue
    until after the limitation had passed, as he was ―deprive[d] . . . of
    such a reasonable opportunity‖); see also 
    Lehr, 463 U.S. at 264
    (―[I]f
    qualification for notice [of an adoption] were beyond the control of
    an interested putative father, it might be thought procedurally in-
    adequate.‖ (emphasis added)); In re Baby Girl T., 
    2012 UT 78
    , ¶ 31,
    (holding filing requirement violated due process as-applied to
    putative father where he deposited notice of paternity with state
    agency, but through agency‘s negligence notice was not filed until
    after the mother had consented to an adoption).
    13 See, e.g., Swarthout v. Cooke, 
    131 S. Ct. 859
    (2011) (holding that
    prisoners up for parole received adequate process when given
    opportunity to be heard and provided reasons for denial of pa-
    role); Wilkinson v. Austin, 
    545 U.S. 209
    , 225–26 (2005) (holding that
    informal, nonadversary procedures were adequate to safeguard
    liberty interest inmates had in not being assigned to supermax fa-
    13
    In re Adoption of J.S.
    Opinion of the Court
    ¶30 On a few occasions, the courts have recognized new subs-
    tantive rights under the umbrella of due process. See, e.g., Roe v.
    Wade, 
    410 U.S. 113
    (1973); Griswold v. Connecticut, 
    381 U.S. 479
    (1965). But the Due Process Clause is not a license for the judicial
    fabrication of rights that judges might prefer, on reflection, to
    have been enshrined in the constitution. Our role in interpreting
    the constitution is one of interpretation, not common-law-making.
    Thus, the judicial recognition of new fundamental rights of subs-
    tantive due process is the exception, not the rule. See Regents of
    Univ. of Mich. v. Ewing, 
    474 U.S. 214
    , 225 (1985) (―Although the
    Court regularly proceeds on the assumption that the Due Process
    Clause has more than a procedural dimension, we must always
    bear in mind that the substantive content of the Clause is sug-
    gested neither by its language nor by preconstitutional history
    . . . .‖ (internal quotation marks omitted)).
    ¶31 That said, the principle of substantive due process is in-
    grained in both federal and state precedent. So although we pro-
    ceed cautiously in this domain, we cannot repudiate the substan-
    tive due process inquiry altogether. We should instead prescribe
    carefully the grounds and the basis for the recognition of any al-
    leged right of substantive due process. To do so, we start with
    some general background in federal precedent, proceed to more
    specific precedent as applied to parental rights of unwed fathers,
    and conclude by articulating the standard of scrutiny applicable
    here.
    a. The lesson of Lochner
    ¶32 Substantive due process reached its apex in the so-called
    Lochner era. During this period, in decisions like Lochner v. New
    York, 
    198 U.S. 45
    (1905), the United States Supreme Court routine-
    ly struck down legislation infringing on economic rights (such as
    the freedom of contract) that it deemed inherent in the guarantee
    cility); Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    , 542 (1985)
    (holding that due process protections require a hearing prior to
    discharge of employee who has constitutionally protected proper-
    ty interest in employment); Bell v. Burson, 
    402 U.S. 535
    , 542 (1971)
    (holding that except in emergency situations, due process requires
    notice and opportunity for hearing appropriate to the nature of
    the case before revocation of a driver‘s license).
    14
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                            Opinion of the Court
    of the Due Process Clause. In Lochner itself, for example, the court
    held unconstitutional a labor law restricting the number of hours
    that bakers were allowed to work in a day in New York (ten), con-
    cluding that the law was an ―unreasonable, unnecessary, and arbi-
    trary interference with the right of the individual‖ to contract. 
    Id. at 56;
    see also Adkins v. Children’s Hosp., 
    261 U.S. 525
    (1923) (strik-
    ing down federal minimum wage legislation as violative of subs-
    tantive due process).
    ¶33 Such expansive use of the Due Process Clause was hardly
    uncontroversial. Lochner-type invocations of substantive due
    process sparked now-famous dissents from the likes of Justices
    Holmes and Harlan, who decried the ―ever increasing scope‖ of
    the substantive due process rights recognized by their colleagues,
    and noted the tendency of the doctrine to ―give us carte blanche to
    embody our economic and moral beliefs in its prohibitions.‖
    Baldwin v. Missouri, 
    281 U.S. 586
    , 595 (1930) (Holmes, J., dissent-
    ing); see also 
    Lochner, 198 U.S. at 75
    (Holmes, J., dissenting) (―Some
    of these laws embody convictions or prejudices which judges are
    likely to share. Some may not. But a Constitution is not intended
    to embody a particular economic theory . . . .‖); 
    id. at 68
    (Harlan, J.,
    dissenting) (―If the end which the legislature seeks to accomplish
    be one to which its power extends, and if the means employed to
    that end, although not the wisest or best, are yet not plainly and
    palpably unauthorized by law, then the court cannot interfere.‖).
    ¶34 The dissenting view eventually carried the day. In cases
    marking the beginning of the so-called Progressive Era, the court
    began to disavow Lochner-style decisionmaking. See West Coast
    Hotel Co. v. Parrish, 
    300 U.S. 379
    (1937) (overruling Adkins, and
    upholding minimum wage legislation). And by the mid-1950s, the
    court categorically—and unanimously—concluded that ―[t]he day
    is gone when this Court uses the Due Process Clause of the Four-
    teenth Amendment to strike down state laws, regulatory of busi-
    ness and industrial conditions, because they may be unwise, im-
    provident, or out of harmony with a particular school of thought.‖
    Williamson v. Lee Optical of Okla., 
    348 U.S. 483
    , 488 (1955). Thus,
    with regard to substantive due process challenges to economic
    regulations, ―[t]he almost universal‖ standard embraced by the
    courts today is ―a rational basis test so tolerant that the substan-
    15
    In re Adoption of J.S.
    Opinion of the Court
    tive content of economic statutes rarely violates due process.‖
    
    Wells, 681 P.2d at 205
    .14
    14  Justice Nehring‘s dissent spurns the above discussion of the
    Lochner era as a ―lengthy exposition‖ that has ―no place‖ in our
    analysis. Infra ¶ 133. That critique is puzzling. Lochner is the key
    bugaboo of substantive due process jurisprudence in the twen-
    tieth century. The courts‘ experiment with Lochner-style decision-
    making has had an enormous impact on our current approach to
    this field of law. That is evident in the fact that Lochner is still often
    raised—as it is here—in both state and federal precedent as a cau-
    tionary reminder of the perils of over-exuberant invocations of the
    judicial power to recognize new fundamental rights. See 
    Wells, 681 P.2d at 205
    (citing scholarly literature and cases addressed to the
    ―almost universal opinion that substantive due process was
    abused in invalidating economic regulations in the first third of
    this century‖ under Lochner and its progeny, while suggesting that
    the judicial reaction to this era ―has culminated in a rational basis
    test so tolerant that the substantive content of economic statutes
    rarely violates due process‖); United Haulers Ass’n, Inc. v. Oneida-
    Herkimer Solid Waste Mgmt. Auth., 
    550 U.S. 330
    , 347 (2007) (describ-
    ing Lochner as ―a time when [the] Court presumed to make . . .
    binding judgments for society under the guise of interpreting the
    Due Process Clause,‖ and cautioning that it is ―[ground] we
    should not seek to reclaim‖); McDonald v. City of Chicago, 
    561 U.S. 742
    , 
    130 S. Ct. 3020
    , 3062 (2010) (Stevens, J., dissenting) (stating
    that the ―now-repudiated Lochner line of cases attests to the dan-
    gers of judicial overconfidence in using substantive due process to
    advance a broad theory of the right or the good‖); Powell v. State
    ex rel. Or. Dep’t of Land Conservation & Dev., 
    243 P.3d 798
    , 802 (Or.
    Ct. App. 2010) (beginning a substantive due process analysis by
    putting caselaw in ―historical perspective‖ and repudiating the
    ―much-maligned ‗Lochner era‘ of Supreme Court jurisprudence‖).
    We raise it with that in mind and place our understanding of the
    law of substantive due process in the historical context of the
    court‘s experiment with Lochner-style decisionmaking. This is no
    mere ―academic pursuit.‖ Infra ¶ 133. It is an attempt to explain
    our current law in light of its historical background and to add a
    continuing voice of caution regarding the enticing, yet difficult-to-
    restrain concept of substantive due process.
    16
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                           Opinion of the Court
    ¶35 That approach has not been broadly extended beyond the
    realm of economic rights. With respect to noneconomic rights, the
    court has continued to uphold certain substantive rights under the
    Due Process Clause. As noted above, for example, the court has
    struck down, as violative of due process, restrictions on access to
    contraception, see Griswold, 
    381 U.S. 479
    , and to abortion, see Roe,
    
    410 U.S. 113
    .
    ¶36 But the anti-Lochner backlash of the Progressive Era has al-
    so had an impact in the realm of noneconomic rights. See 
    Wells, 681 P.2d at 205
    (noting, in expressing reluctance to extend new
    rights of substantive due process, ―[t]he almost universal opinion
    that substantive due process was abused in invalidating economic
    regulations in the first third of [the twentieth] century‖). In recent
    decades, both this court and our federal counterparts have ex-
    pressed a diminishing appetite for the judicial recognition of new
    substantive due process rights in the social realm.
    ¶37 In Washington v. Glucksberg, 
    521 U.S. 702
    (1997), for exam-
    ple, the United States Supreme Court declined to recognize a
    substantive due process right to assisted suicide. In so doing, the
    court noted the uneasy status of the concept of substantive due
    process, expressing concern for the slipperiness of the judicial
    slope. 
    Id. at 723
    n.23 (noting the potential for judicial abuse, while
    asserting that once recognized, there is ―no principled basis‖ for
    confining the right).
    b. Substantive due process and parental rights
    ¶38 We expressed a parallel concern in In re J.P., 
    648 P.2d 1364
    (Utah 1982). In J.P. we built on federal precedent in recognizing a
    fundamental right for a mother not to lose her rights to her child
    absent proof of unfitness, abandonment, or neglect. 
    Id. at 1367.
    In
    so doing however, we first acknowledged our discomfort with the
    judicial recognition of new ―rights unknown at common law‖ and
    ―not mentioned in the Constitution,‖ particularly as to ―substan-
    tive due process innovations undisciplined by any but abstract
    formulae.‖ 
    Id. at 1375
    (citing Moore v. City of East Cleveland, 
    431 U.S. 494
    , 503, n.12 (1977)15).
    15 The Moore opinion, in turn, emphasized the crucial impor-
    tance of a limitation ―grounded in history‖ and tradition, noting
    that such limitation is much ―more meaningful than any based on
    17
    In re Adoption of J.S.
    Opinion of the Court
    ¶39 In recognizing the fundamental interest of a mother in re-
    taining her parental rights absent proof of unfitness, abandon-
    ment, or neglect, our J.P. opinion first established a narrow, limit-
    ing principle. As a predicate to establishing such a right, we first
    found that such right was ―‗deeply rooted in this Nation‘s history
    and tradition,‘ and in the ‗history and culture of Western civiliza-
    tion.‘‖ 
    Id. (citations omitted).
    In support of that conclusion, we
    cited extensive historical evidence of the ―deeply rooted‖ nature
    of this right. See 
    id. at 1374
    (―The integrity of the family and the
    parents‘ inherent right and authority to rear their own children
    have been recognized as fundamental axioms of Anglo-American
    culture, presupposed by all our social, political, and legal institu-
    tions.‖). Because the statute at issue in J.P. infringed on the fun-
    damental right recognized by this court, we found it unconstitu-
    tional. We held, specifically, that ―a mother is entitled to a show-
    ing of unfitness, abandonment, or substantial neglect before her
    parental rights are terminated,‖ and that the statute that made ―no
    provision for that showing‖ was ―unconstitutional on its face.‖ 
    Id. at 1377.
      ¶40 In reaching this conclusion, our decision in J.P. built upon
    the United States Supreme Court‘s decision in Stanley v. Illinois,
    
    405 U.S. 645
    (1972). In J.P., we cited Stanley as establishing the un-
    constitutionality of an Illinois statute ―presuming unwed fathers
    to be unfit [as] a violation of the due process 
    clause.‖ 648 P.2d at 1374
    (citing 
    Stanley, 405 U.S. at 651
    ). In the context of an unwed
    father who had lived with his children at least ―intermittently for
    18 years,‖ we noted that Stanley had upheld the fundamental right
    of ―‗a man in the children he has sired and raised,‘‖ a right that
    was deemed to ―‗warrant[] deference and, absent a powerful
    countervailing interest, protection.‘‖ Id. (quoting 
    Stanley, 405 U.S. at 651
    ).
    ¶41 Our J.P. opinion was discussed and extended in our subse-
    quent decision in Wells. In Wells, we considered the constitutional-
    ity of a statute predicating an unwed father‘s establishment of his
    parental rights on the statutory condition of the filing of an ac-
    knowledgement of paternity prior to the child‘s placement for
    
    adoption. 681 P.2d at 202
    –03 (considering the constitutionality of
    the [mere] abstract formula‖ of judicial intuition or preference.
    
    Moore, 431 U.S. at 503
    n.12.
    18
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                           Opinion of the Court
    UTAH CODE § 78-30-4 (1953)). Building on United States Supreme
    Court precedents culminating in Lehr v. Robertson, 
    463 U.S. 248
    (1983), our opinion in Wells concluded that the standard of scruti-
    ny under the federal Due Process Clause was a deferential stan-
    dard of arbitrariness. Citing In re J.P. and Lehr, we acknowledged
    the provisional right of an unwed father to parent his children
    while also recognizing the state‘s interest in ―immediate and se-
    cure adoptions for eligible newborns‖ providing ―justification for
    significant variations in the parental rights of unwed 
    fathers.‖ 681 P.2d at 203
    . And we noted that Lehr had upheld a New York pro-
    vision requiring notice of an adoption proceeding to an unwed
    father ―only if he had filed a notice of intent to claim paternity
    with the putative father registry‖ on the ground that ―‗a more
    open-ended notice requirement would . . . complicate the adop-
    tion process, threaten the privacy interests of unwed mothers,
    create the risk of unnecessary controversy, and impair the desired
    finality of adoption decrees.‘‖ 
    Id. (quoting Lehr,
    463 U.S. at 249).
    Because Lehr upheld the New York provision on the ground that it
    was not ―arbitrary,‖ we applied an arbitrariness standard in Wells
    in upholding the then-applicable requirement of Utah law of fil-
    ing an acknowledgement of paternity as a prerequisite to an un-
    wed father preserving his provisional rights as a parent. 
    Id. (hold- ing
    that the acknowledgement of paternity requirement was ―not
    ‗arbitrary‘‖ and was ―therefore constitutional under the Due
    Process Clause of the United States Constitution‖).
    ¶42 Our Wells decision adopted a different standard under the
    Utah Constitution, however. Although we upheld the acknowl-
    edgment of paternity requirement under the state constitution as
    well, we did so only after first adopting a standard of heightened
    scrutiny. 
    Id. at 206.
    That standard, we concluded, followed from
    the J.P. opinion‘s recognition of ―parental rights as ‗fundamen-
    tal,‘‖ and from a prior decision in which we had invoked heigh-
    tened scrutiny in addressing a void-for-vagueness challenge to a
    statute impinging on ―fundamental rights‖ (such as the right to
    travel). 
    Id. (citing In
    re Boyer, 
    636 P.2d 1085
    , 1087–88 (Utah 1981)).
    Thus, under the Utah Constitution‘s Due Process Clause, we con-
    cluded in Wells that ―the proponent of legislation infringing pa-
    rental rights must show (1) a compelling state interest in the result
    to be achieved and (2) that the means adopted are ‗narrowly tai-
    19
    In re Adoption of J.S.
    Opinion of the Court
    lored to achieve the basic statutory purpose.‘‖ 
    Id. (quoting Boyer,
    636 P.2d at 1090).16
    ¶43 The standard invoked in Wells, however, is in some tension
    with the standards employed in subsequent cases. Despite Wells,
    for example, our more recent cases have held that an unwed fa-
    ther‘s ―inchoate‖ right in his child may be lost if he fails to follow
    reasonable state procedures for perfecting that right. And our re-
    cent cases have done so in a manner foreclosing the sort of heigh-
    tened scrutiny prescribed in Wells.
    ¶44 In T.M. v. B.B. (In re Adoption of T.B.), 
    2010 UT 42
    , 
    232 P.3d 1026
    , for example, we emphasized that the guarantee of due
    process recognizes only ―an inchoate interest‖ of an unwed bio-
    logical father. 
    Id. ¶ 31
    n.19. And we concluded that that interest
    rises to the level of a fundamental right ―only when [the father]
    ‗demonstrates full commitment to the responsibilities of parent-
    hood by [coming] forward to participate in the rearing of his
    child.‘‖ 
    Id. (second alteration
    in original). Because the father in
    T.B. had failed to satisfy the statutory prerequisites to perfecting
    his inchoate parental rights, we held that the ―natural mother‘s
    relinquishment of [his] child‖ for adoption ―eliminate[d] his op-
    portunity to acquire constitutionally protectable parental rights.‖
    
    Id. ¶ 40.
    And we accordingly rejected the biological father‘s argu-
    ment that there was ―no compelling need for the premature ter-
    mination of [his] . . . parental rights based solely on procedural
    noncompliance,‖ concluding that the fact that he ―could have
    complied with the statutory scheme established by the Utah Leg-
    islature for acquiring the right to withhold consent to an adop-
    tion‖ foreclosed his alleged fundamental right. 
    Id. ¶¶ 28,
    41.
    16 See also Thurnwald v. A.E., 
    2007 UT 38
    , ¶¶ 28, 33, 44, 47, 
    163 P.3d 623
    (reiterating this standard in identifying a potential consti-
    tutional problem with applying the Adoption Act‘s requirement
    of a paternity petition within twenty-four hours of the birth of a
    child in a manner that would ―make it impossible for unwed fa-
    thers of children born on weekends or holidays to preserve their
    rights postbirth,‖ but interpreting the statutory filing deadline to
    be subject to extension under Utah Rule of Civil Procedure 6 and
    interpreting the statute to provide a ―minimum period of twenty-
    four hours after the child‘s birth to file a paternity claim‖ in a
    manner avoiding the constitutional question).
    20
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                            Opinion of the Court
    ¶45 We reiterated a similar standard in In re Adoption of Baby
    Girl T., 
    2012 UT 78
    . In that case, we explained that ―[u]nder both
    federal and state law, an unwed biological father has an inchoate
    interest in a parental relationship with his child that acquires full
    constitutional protection only when he demonstrates a full com-
    mitment to the responsibilities of parenthood by [coming] for-
    ward to participate in the rearing of his child.‖ 
    Id. ¶ 18
    (alteration
    in original) (internal quotation marks omitted). And we accor-
    dingly held that an ―unmarried biological father‖ must only ―be
    given an adequate opportunity to comply with the[] statutory re-
    quirements of the Adoption Act in order to assert‖ a fundamental
    interest in his parental rights. 
    Id. ¶ 19
    (alteration in original) (in-
    ternal quotation marks omitted). In addition, we again empha-
    sized that an unwed father‘s right is simply ―in the opportunity to
    develop a substantial relationship‖ with his child, and thus con-
    cluded that if the governing statute provides a ―meaningful
    chance‖ for the father to protect his interests, ―he may not com-
    plain of the termination of his interest when he fails to strictly
    comply with its procedures.‖ 
    Id. ¶ 20.
                c. The standard of scrutiny applicable here
    ¶46 The foregoing sets the stage for our statement of the appli-
    cable standard of scrutiny. It also emphasizes the difficulty of so
    doing, given the evident tension in our caselaw. Our cases have
    consistently applied a deferential standard of federal due process
    scrutiny of statutory prerequisites to the establishment of parental
    rights of unwed fathers. See 
    Wells, 681 P.2d at 206
    (provision of
    adoption statute was not ―arbitrary‖ and thus did not violate fed-
    eral due process protections); In re Adoption of T.B., 
    2010 UT 42
    ,
    ¶ 31 (adoption statute preserved ―meaningful chance‖ for puta-
    tive father to preserve opportunity to develop relationship with
    his child and thus satisfied due process). Our statement of the ap-
    plicable state constitutional standard has been inconsistent, how-
    ever. Wells calls for heightened scrutiny on the ground that a fa-
    ther‘s parental rights are 
    ―fundamental.‖ 681 P.2d at 205
    (―fun-
    damental rights of parenthood‖ require a ―higher level of scruti-
    ny‖ under Utah‘s Due Process Clause). But our subsequent cases
    apply a much more deferential standard—one in line with the
    federal standard of scrutiny. See In re Baby Girl T., 
    2012 UT 78
    , ¶¶
    11, 19 (due process requires that putative father ―have a meaning-
    ful chance‖ to preserve opportunity of relationship with child).
    21
    In re Adoption of J.S.
    Opinion of the Court
    ¶47 The standard in T.B. and Baby Girl T. runs directly counter
    to that set forth in Wells. Instead of applying a heightened stan-
    dard of scrutiny, our T.B. opinion expressly rejected the biological
    father‘s argument that showing a ―compelling‖ interest was ne-
    cessary. See In re Adoption of T.B., 
    2010 UT 42
    , ¶ 29. And it applied
    instead a standard turning only on a showing of a ―reasonable
    opportunity [of a biological father] to preserve his chance to de-
    velop a relationship with his child.‖ 
    Id. ¶ 42.
    Baby Girl T. is to the
    same effect. See In re Baby Girl T., 
    2012 UT 78
    , ¶¶ 11, 19.
    ¶48 This tension in our caselaw is nowhere reflected on the face
    of our opinions. Perhaps the parties in our more recent cases were
    unaware of the heightened standard applied in Wells; at a mini-
    mum they appear not to have called it to our attention. But the
    tension as to the state standard of scrutiny is front and center in
    this case. It is reflected clearly in the briefing. Bolden expressly
    invokes the Wells standard of heightened scrutiny. And the adop-
    tive parents cite T.B. and Baby Girl T. in support of the deferential
    ―reasonable opportunity‖ or ―meaningful chance‖ standard.
    ¶49 We are therefore faced with the question of how to resolve
    this tension—a question not directly confronted in any of our
    prior cases. And we resolve it in favor of the deferential standard
    of scrutiny set forth in our more recent cases. We do so, first, be-
    cause T.B. and Baby Girl T. are our most recent pronouncements
    on this issue. Because these cases appear to have overtaken Wells
    on this point, they should control. Litigants in Utah are entitled to
    rely on our explication of the law as definitive.17 And although
    T.B. and Baby Girl T. do not expressly overrule Wells on the state
    standard of scrutiny, the two lines of cases are unquestionably in-
    compatible. That, without more, would suggest to a litigant that
    our most recent pronouncement is the law, and has overtaken any
    prior contrary statement. See Malan v. Lewis, 
    693 P.2d 661
    , 676
    (Utah 1984) (noting ―[t]he general rule from time immemorial‖
    that an opinion from this court ―is deemed to state the true nature
    of the law both retrospectively and prospectively‖).
    ¶50 Second, and in any event, the Wells standard of scrutiny
    was unnecessary to the outcome in that case, and may thus be
    17 See Carter v. Lehi City, 
    2012 UT 2
    , ¶ 15, 
    269 P.3d 141
    (empha-
    sizing that ―[l]itigants ought to be able to rely‖ on our opinions).
    22
    Cite as: 
    2014 UT 51
                            Opinion of the Court
    viewed as over-enthusiastic dicta.18 Because the Wells decision
    upheld the then-applicable acknowledgement of paternity filing
    against a state constitutional due process challenge, the court
    could easily have reached the same conclusion under a more defe-
    rential standard. That renders the heightened standard of scrutiny
    in Wells unnecessary to the result. We accordingly read T.B. and
    Baby Girl T. as controlling. .19
    18 We use the term dicta in the sense of ―[a] court‘s stating of a
    legal principle more broadly than is necessary to decide the case,‖
    BLACK‘S LAW DICTIONARY 519 (so defining gratis dictum), or ―[a]n
    opinion by a court on a question that is directly involved, briefed,
    and argued by counsel and even passed on by the court, but that
    is not essential to the decision,‖ 
    id. (so defining
    judicial dictum). So
    the disagreement with the dissent on this point is not a matter of
    one of us speaking truth and the other falsity, see infra ¶ 140
    (Nehring, J., dissenting) (disagreeing with the court‘s understand-
    ing of obiter dictum); it is simply a matter of nuanced variations in
    terminology. Thus, we acknowledge that the standard set forth in
    the Wells opinion was not a matter of ―‗illustration, argument,
    analogy, or suggestion‘‖ that was not part of the court‘s holding.
    Infra ¶ 140. But it was dicta in the sense of being unnecessary to
    the court‘s decision.
    19  The same thing holds for our decision in Thurnwald v. A.E.,
    
    2007 UT 38
    , 
    163 P.3d 623
    , cited by the dissent as another instance
    in which we employed the strict scrutiny standard to reform a
    ―provision of the Adoption Act.‖ Infra ¶ 136 n.166 (Nehring, J.,
    dissenting). The Thurnwald opinion does include some language
    invoking the strict scrutiny standard from Wells. Thurnwald, 2007
    UT ¶¶ 28, 35. But the ultimate holding of Thurnwald is one of con-
    stitutional avoidance—of statutory interpretation of the Adoption
    Act in light of Utah Rule of Civil Procedure 6 in a manner avoiding
    a potential problem of unconstitutionality. See 
    id. ¶¶ 46–47
    (em-
    phasizing our approach of choosing one interpretation of a statute
    over another, and specifically of selecting an interpretation that
    avoided the result of striking down the Adoption Act as unconsti-
    tutional). So our invocation of strict scrutiny in Thurnwald is even
    more clearly an instance of dicta, and in any event a dictum again
    at odds with our other recent opinions.
    23
    In re Adoption of J.S.
    Opinion of the Court
    ¶51 Third, the Wells opinion offers shaky support for its heigh-
    tened standard of scrutiny, while our analysis in T.B. and Baby
    Girl T. is in line with our current understanding of the law of
    substantive due process. The linchpin of the analysis in Wells is
    the assertion that parental rights are fundamental. From that pre-
    mise the Wells court concluded that the standard was a heigh-
    tened one. Thus, the Wells court reasoned ―[b]y analogy‖ to a case
    implicating the fundamental right to travel (In re 
    Boyer, 636 P.2d at 1087-88
    ) that a statutory regulation of the right of an unwed father
    was an infringement of a ―fundamental right.‖ 
    Wells, 681 P.2d at 206
    . But that conclusion was circular, or at least a bit too facile.
    Under the universal understanding in place at the time of Wells
    (and still today), an unwed father‘s right was not necessarily fun-
    damental; it was only provisionally so, subject to being perfected
    by fulfillment of a state‘s statutory requirements for its establish-
    ment. See 
    Lehr, 463 U.S. at 261
    –62 (the ―mere existence of a biolog-
    ical link does not merit equivalent constitutional protection,‖ a
    putative father must ―grasp [the] opportunity and accept some
    measure of responsibility‖); In re Adoption of T.B., 
    2010 UT 42
    , ¶ 26
    & n.22 (putative father‘s parental rights are provisional rights he
    ―may acquire‖ by ―satisfying certain statutory requirements‖);
    
    Wells, 681 P.2d at 206
    (unwed father‘s right to a relationship with
    his newborn is ―a provisional right‖ subject to statutory perfec-
    tion). Thus, under long-settled law, the right of the unwed father
    in Wells was not properly described as ―fundamental‖ at the thre-
    shold point of identifying the applicable standard of scrutiny.
    Deeming it so was question-begging. So to be true to the settled
    understanding of the nature of the right of an unwed father, Wells
    should have carefully considered whether the unwed father in
    that case had established his fundamental right as a parent instead
    of simply assuming that he had.
    ¶52 That careful analysis, moreover, should have followed the
    approach modeled in J.P., as informed by the United States Su-
    preme Court decisions culminating in Lehr. And that approach is
    not simply to assume at the highest level of generality that an unwed
    father‘s interests are fundamental. It is to ask instead the more
    specific question whether the precise interest at stake is fundamental
    in the sense of being justified not by the mere ―abstract formula[]‖
    informed by a judge‘s instincts of fairness, but by a clear indica-
    tion that that interest is ―deeply rooted in this Nation‘s history
    and tradition and in the history and culture of Western civiliza-
    24
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                           Opinion of the Court
    tion.‖ In re 
    J.P., 648 P.2d at 1374
    –75 (internal quotation marks
    omitted); see also 
    Glucksberg¸ 521 U.S. at 728
    (statute prohibiting
    assisted suicide constitutional because assisted suicide is not a
    fundamental right deeply rooted in American tradition).
    ¶53 Absent such evidence, the right at stake is not fundamental,
    and the applicable standard of scrutiny is a highly deferential in-
    quiry into rationality or arbitrariness. That is the evident basis for
    the standards we adopted in T.B. and Baby Girl T. In the absence
    of any proof of a showing of ―deeply rooted‖ history and tradition
    sustaining the unwed father‘s interests, we simply considered on-
    ly the rationality or arbitrariness of statutory terms for an unwed
    father‘s establishment of his parental rights. And we deemed that
    deferential standard met where the statutory framework provided
    a reasonable or meaningful opportunity for a father to establish
    his rights. See In re Baby Girl T., 
    2012 UT 78
    , ¶ 11 (due process re-
    quires only that unwed father have ―meaningful chance‖); In re
    Adoption of T.B., 
    2010 UT 42
    , ¶ 31 (due process satisfied where
    ―meaningful chance‖ or ―reasonable opportunity‖ exists).
    ¶54 The required showing of ―deeply rooted‖ history and tradi-
    tion was made in J.P., but not in Wells. J.P. concerned the question
    of a mother‘s right to maintain her parental rights absent proof of
    unfitness, abandonment, or 
    neglect. 648 P.2d at 1375
    . And on that
    point the evidence of a deeply embedded history and tradition
    was powerful. Thus, as a predicate to recognizing a fundamental
    right in J.P., the court relied on widespread historical evidence of
    a longstanding tradition of respecting a parent‘s custodial rights
    except upon proof of unfitness, abandonment, or neglect. 
    Id. at 1374.
      ¶55 No such historical record was presented in Wells. The Wells
    court cited no established tradition of recognizing an unwed fa-
    ther‘s inherent right to his child without regard to any compliance
    with statutory prerequisites such as a paternity filing. Instead the
    court simply asserted, at the highest level of generality, that pa-
    rental rights and familial bonds are significant, and thus that those
    rights are ―fundamental‖ and accordingly subject to ―a more
    stringent standard.‖ 
    Wells, 681 P.2d at 202
    , 206. In so concluding,
    moreover, the Wells court also acknowledged that the rights of an
    unwed father are merely ―provisional,‖ and therefore subject to
    forfeiture absent fulfillment of the preconditions to their eventual
    fulfillment. 
    Id. at 205–08
    (citing 
    Lehr, 463 U.S. at 249
    ). And absent
    25
    In re Adoption of J.S.
    Opinion of the Court
    evidence of a specific tradition of respecting the rights of unwed
    fathers without fulfilling statutory prerequisites, the Wells opinion
    essentially assumed away the problem by simply presuming that
    the right in question was fundamental.20
    ¶56 The heightened standard in Wells was not justified by the
    record and authority presented. Absent a record of a deeply em-
    bedded tradition of protecting the unwed father‘s rights regard-
    less of the fulfillment of any preconditions prescribed by statute,
    our court was in no position to declare the right in Wells a ―fun-
    damental‖ one. We should instead have simply concluded, as we
    more recently have done in T.B. and Baby Girl T, that the standard
    was the deferential, fallback standard of rationality or arbitrari-
    ness.
    ¶57 For these reasons, we would repudiate the heightened
    scrutiny standard announced in Wells. In our view, the standard
    requires more than a broad, general assertion that parental rights
    20 The dissent commits a similar error. It broadly asserts that ―a
    father‘s right to control his children has a strong basis in Ameri-
    can and English history,‖ citing caselaw and other authority in
    support of the general respect our society has ceded to parental
    rights. Infra ¶ 134 (Nehring, J., dissenting). But that is insufficient.
    A general tradition of respect for parental rights comes nowhere
    close to establishing a fundamental right for unwed fathers to un-
    fettered control of their offspring. That proposition is thoroughly
    undermined by the United States Supreme Court‘s decisions in
    Lehr and its antecedents and in our decision in J.P., and the dis-
    sent‘s evidence of tradition and history is therefore inadequate.
    Thus, Hibbette v. Baines, 
    29 So. 80
    (Miss. 1900), does not estab-
    lish a ―deeply rooted‖ historical tradition of respecting the rights
    of unwed fathers. Infra ¶ 134. Indeed, the father in Hibbette was
    not unwed but married to the mother of his children, and the case
    established only his rights to custody upon the death of the child-
    ren‘s mother in a custody contest with ―collateral relatives‖ (a
    grandmother and 
    aunts). 29 So. at 81
    –82. So the ―presumption‖ of
    a father‘s right to his children recognized in Hibbette says nothing
    about such a right in a case of an unwed father like this one. And
    it certainly doesn‘t undermine the long-settled understanding of
    an unwed father‘s right as merely provisional.
    26
    Cite as: 
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                            Opinion of the Court
    are significant and traditionally respected. To trigger such a stan-
    dard, a party would have to make the more specific showing pre-
    sented in J.P.—to establish a specific showing that the precise in-
    terest asserted by the parent is one that is ―deeply rooted in this
    Nation‘s history and tradition and in the history and culture of
    Western civilization.‖ In re 
    J.P., 648 P.2d at 1374
    –75 (internal quo-
    tation marks omitted).21
    3. Bolden‘s Substantive Due Process Claim
    ¶58 That leaves only the question of the viability of Bolden‘s
    particular claim of an infringement of his rights of substantive due
    process. We conclude that he has failed to make the kind of show-
    ing rooted in settled history and tradition, and thus that his claim
    is subject only to review for rationality or arbitrariness. And be-
    cause we find the statutory gateway to establish his parental
    rights to be a rational, meaningful opportunity, we reject his claim
    and uphold the statute‘s constitutionality.
    ¶59 Bolden fails to present any historical basis for rooting the
    right he asserts in ―this Nation‘s history and tradition‖ or in ―the
    21 That showing, moreover, cannot be made by bare citation to
    Troxel v. Granville, 
    530 U.S. 57
    , 65 (2000), which the dissent cites in
    support of the notion that the interest of parents ―in the care, cus-
    tody, and control of their children is ‗perhaps the oldest of the
    fundamental liberty interests‘ recognized by the United States Su-
    preme Court.‖ Infra ¶¶ 86, 131 (Nehring, J., dissenting). The Troxel
    opinion comes nowhere close to establishing a generalized, fun-
    damental right of an unwed father. Instead, Troxel vindicates only
    the established right of a mother to trump the visitation rights as-
    serted by grandparents under a state statute granting such rights
    upon proof that it is in ―‗the best interest of the child.‘‖ 
    Id. at 60
    (quoting WASH. REV. CODE § 26.10.160(3)). Troxel does so, moreo-
    ver, only on the basis of established history, tradition, and
    precedent supporting the principle of a fundamental right of an
    established parent ―to make decisions concerning the care, custo-
    dy, and control of their children.‖ 
    Id. at 66.
    None of the cited his-
    tory, tradition, or precedent sustains the right asserted by Bolden
    and recognized by the dissent. Instead, for unwed fathers, the re-
    levant history, tradition, and precedent establishes only a provi-
    sional right, subject to reasonable regulation by the states.
    27
    In re Adoption of J.S.
    Opinion of the Court
    history and culture of Western civilization.‖ In re 
    J.P., 648 P.2d at 1375
    (internal quotation marks omitted). His briefs make no effort
    to identify any longstanding, widespread basis in our history and
    culture for recognizing a perfected right in unmarried biological
    fathers arising upon their mere filing of a paternity suit (and
    without following other requirements set forth by law).22 Instead,
    the right asserted by Bolden implicates the slippery slope prob-
    lems associated with ―substantive due process innovations undis-
    ciplined by any but abstract formulae.‖ 
    Id. ¶60 Bolden
    insists that his interest is ―more than a mere biolog-
    ical connection to his newborn son.‖ But he offers ―[no] principled
    basis for confining the right‖ that he asserts. 
    Glucksberg, 521 U.S. at 733
    , n.23. Endorsement of a substantive right in this case would
    inevitably lead to a series of line-drawing problems going for-
    ward, requiring the courts to make policy judgments about
    whether the biological father before the court had done enough to
    properly justify the recognition of his parental rights.
    ¶61 Those policy judgments are matters for legislative action.
    Our legislature has spoken to this question, prescribing a series of
    prerequisites to an unmarried biological father‘s perfection of his
    inchoate interest in his child. Bolden asks us to second-guess those
    requirements (at least one of them). He asks us to establish a subs-
    tantive due process right to perfect his parental rights on some-
    thing less than the grounds prescribed by the legislature—by fil-
    ing a paternity action but not the affidavit called for by statute.
    Doing so would put us in the problematic realm of making ―due
    22 The dissent complains that this formulation is not Bolden‘s.
    Infra ¶ 129 (Nehring, J., dissenting). Fair enough. Bolden has not
    deigned to frame his due process claim in these clear terms. But
    that is just because he prefers to frame it at too-high a level of ge-
    nerality, anticipating that a more general statement of his interest
    might persuade us to embrace it. The question, however, is not the
    terms that Bolden has chosen to articulate his asserted right. It is
    the actual nature of the right in question. And there is no question
    that to succeed, Bolden would have to do more than establish a
    generic interest in parenthood. He would have to establish the
    precise interest that he advocates for, which is that of assuring his
    interests in his child without complying with the statute.
    28
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                           Opinion of the Court
    process innovations‖ dictated by ―abstract formulae‖ and without
    any effective limiting principle.
    ¶62 Bolden‘s claim is thus subject only to deferential review of
    the rationality or non-arbitrariness of the statutory scheme, or in
    other words, of whether the statute preserves a meaningful op-
    portunity for him to perfect his parental rights. Under that stan-
    dard his claim fails, as he has made no attempt to suggest that the
    affidavit requirement is arbitrary or that the opportunity afforded
    to him by statute is not meaningful.
    ¶63 Instead he just claims that he ignored the statute on the
    (bad) advice of counsel. If so, that is unfortunate. But bad legal
    advice is no excuse for a failure to follow the law. For better or
    worse, our legal system treats attorneys as agents for their clients.
    And on that basis, we generally deem clients responsible for the
    decisions they make on advice of counsel.
    ¶64 There is an exception to this rule: In criminal cases, defen-
    dants convicted upon objectively deficient advice at trial may be
    entitled to a new trial as a remedy on a constitutional claim for
    ineffective assistance of counsel. See Strickland v. Washington, 
    466 U.S. 668
    , 691–92 (1984) (to prevail on ineffective assistance of
    counsel claim defendant must show deficient performance by
    counsel that was objectively unreasonable and prejudicial). But
    the exception proves the rule. Except in these limited circums-
    tances, a misstep on advice of counsel is still a misstep, and a
    client‘s recourse is simply an action for malpractice. See Jennings v.
    Stoker, 
    652 P.2d 912
    , 913 (Utah 1982) (general rule in civil cases is
    that judgment of district or trial court will stand despite incompe-
    tence or negligence of one‘s own counsel); Peterson v. Peterson,
    
    2006 UT App 199U
    , para. 9 (memorandum decision) (malpractice
    action is the ―appropriate remedy for the client whose counsel‘s
    performance falls below the standard of professional competence‖
    (internal quotation marks omitted)). That reality is less than ideal,
    particularly in cases like this one where money damages are cold
    comfort for the injury associated with the loss of parental rights.
    But that is the law—and perhaps a reminder that our system is
    imperfect, and that the remedies it affords may fall short of the
    ideal of restoring the losses suffered by the wronged.
    29
    In re Adoption of J.S.
    Opinion of the Court
    ¶65 Bolden‘s due process claim accordingly fails under the ap-
    plicable standard of scrutiny. We therefore affirm the district
    court‘s denial of this claim.
    B. Uniform Operation and Equal Protection
    ¶66 The Uniform Operation Clause of the Utah Constitution
    states that ―[a]ll laws of a general nature shall have uniform oper-
    ation.‖ UTAH CONST. art I, § 24. As we explained in State v. Canton,
    uniform operation provisions historically were understood to be
    aimed ―not at legislative classification but at practical operation.‖
    
    2013 UT 44
    , ¶ 34 & n.7, 
    308 P.3d 517
    . Thus, under this historical
    approach, the uniform operation guarantee is ―not viewed as a
    limit on the sorts of classifications that a legislative body could
    draw in the first instance, but as a rule of uniformity in the actual
    application of such classifications.‖ Canton, 
    2013 UT 44
    , ¶ 34. Bol-
    den asserts no tenable infringement of this guarantee. His com-
    plaint is with legislative classification, not practical operation.
    ¶67 Bolden‘s claim thus arises under the modern notion of
    ―uniform operation,‖ which is simply a ―state-law counterpart to
    the federal Equal Protection Clause.‖ 
    Id. ¶ 35.
    Under this formula-
    tion, we employ a three-step test wherein we assess: (1) ―what
    classifications,‖ if any, ―the statute creates,‖ (2) ―whether different
    classes . . . are treated disparately,‖ and (3) if there is disparate
    treatment, ―whether the legislature had any reasonable objective
    that warrants the disparity.‖ 
    Id. (alteration in
    original) (quoting
    State v. Angilau, 
    2011 UT 3
    , ¶ 21, 
    245 P.3d 745
    ).
    ¶68 Most classifications are presumptively permissible and
    thus subject to rational basis review. Canton, 
    2013 UT 44
    , ¶ 36 (cit-
    ing State v. Robinson, 
    2011 UT 3
    0, ¶ 22, 
    254 P.3d 183
    ). Other classi-
    fications, however, ―are so generally problematic (and so unlikely
    to be reasonable) that they trigger heightened scrutiny.‖ 
    Id. Such ―suspect‖
    classes include race, sex, and classifications implicating
    fundamental rights. See Robinson, 
    2011 UT 3
    0, ¶ 22.
    ¶69 Not all ―suspect‖ classifications are treated identically,
    however. For one thing, sex-based classifications are evaluated
    under a less-searching standard than that applied to race-based
    ones. Thus, race-based classifications are evaluated under a stan-
    dard of strict scrutiny (requiring a compelling governmental inter-
    30
    Cite as: 
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                            Opinion of the Court
    est advanced by the least restrictive means possible23), while sex-
    based classifications are evaluated as a matter of intermediate
    scrutiny (requiring only an important governmental interest that is
    substantially advanced by the legislation).24
    ¶70 Second, not all sex-based classifications implicate the same
    considerations under this intermediate standard of scrutiny. The
    notion of a ―substantial‖ relation between means and ends implies
    a threshold consideration of the nature and extent of the discrimi-
    nation at issue. For ―official action that closes a door or denies op-
    portunity to women (or to men),‖ it is difficult for the government
    to show that its discriminatory policy ―substantially‖ advances an
    important objective. United States v. Virginia, 
    518 U.S. 515
    , 532
    (1996) (concluding that Virginia failed to carry this burden in fail-
    ing to identify an ―exceedingly persuasive‖ justification for its
    policy of excluding women from Virginia Military Institute). On
    the other hand, for official action that is less imposing, the opera-
    tive standard will be easier to satisfy. See Nguyen v. I.N.S., 
    533 U.S. 53
    , 70 (2001) (explaining, in upholding federal immigration rule
    requiring unwed fathers of children born abroad to satisfy stan-
    dards not imposed on unwed mothers, that the court is ―mindful‖
    that the ―obligation‖ imposed on fathers ―is minimal‖). This is
    23   Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 
    551 U.S. 701
    , 720 (2007) (―It is well established that when the govern-
    ment distributes burdens or benefits on the basis of individual ra-
    cial classifications, that action is reviewed under strict scruti-
    ny. . . . In order to satisfy this searching standard of review, the
    [government] must demonstrate that the use of individual racial
    classifications . . . is narrowly tailored to achieve a compelling
    government interest.‖ (internal quotation marks omitted)).
    24  See Nguyen v. I.N.S., 
    533 U.S. 53
    , 60 (2001) (―For a gender-
    based classification to withstand equal protection scrutiny, it must
    be established at least that the [challenged] classification serves
    important governmental objectives and that the discriminatory
    means employed are substantially related to the achievement of
    those objectives.‖ (alteration in original) (internal quotation marks
    omitted)); State v. Hererra, 
    895 P.2d 359
    , 384 (Utah 1995) (discrimi-
    nation must ―substantially further a legitimate legislative interest‖
    to comply with Uniform Operation Clause of the Utah State Con-
    stitution).
    31
    In re Adoption of J.S.
    Opinion of the Court
    particularly true where the differential treatment of men and
    women is rooted in ―[i]nherent differences‖ between the sexes,
    and where such differences translate not into an outright bar on
    one of the sexes, see 
    Virginia, 518 U.S. at 532
    –33 (internal quotation
    marks omitted), but a regime preserving meaningful opportuni-
    ties to both sexes, see Lehr v. Robertson, 
    463 U.S. 248
    , 267 (1983)
    (holding that where a father had no established relationship with
    his child and had failed to file with the putative father registry,
    ―nothing in the Equal Protection Clause [would] preclude[] the
    State from withholding from him the privilege of vetoing the
    adoption of that child‖ (alteration in original) (internal quotations
    omitted)); Friehe v. Schaad, 
    545 N.W.2d 740
    (Neb. 1996) (holding
    that it was not a violation of equal protection to require a father to
    file with the putative father registry within five days of his child‘s
    birth or lose the right to object to an adoption).25
    ¶71 In any event, the intermediate standard of scrutiny does
    not require a precise fit between means and ends. A simple ―sub-
    stantial‖ relation will do, and that standard does not require proof
    that the official action adopted by government is the ―least restric-
    tive means‖ of accomplishing the government‘s objectives. See
    
    Nguyen, 533 U.S. at 70
    (―None of our gender-based classification
    equal protection cases have required that the statute under con-
    sideration must be capable of achieving its ultimate objective in
    every instance.‖).
    ¶72 We apply this standard to the affidavit requirement in sec-
    tion 78B-6-121(3). And we uphold it as constitutional. First, we ac-
    knowledge that the statute discriminates on the basis of sex. With-
    in the class of unmarried parents, the statute prescribes the re-
    quirement of an affidavit only for men. That is a sex-based classi-
    fication triggering an intermediate scrutiny standard of scrutiny.
    25  Our point is not to establish two distinct standards of inter-
    mediate scrutiny. See infra ¶ 148 (Parrish, J., dissenting) (noting
    that the United States Supreme Court ―has articulated only one
    definition of intermediate scrutiny applicable in sex discrimina-
    tion cases‖); infra ¶ 87 (Nehring, J., dissenting) (claiming that we
    ―fail[] to actually engage in a heightened scrutiny analysis‖). It is
    simply to note, as the United States Supreme Court has, the relev-
    ance of the degree of government discrimination in the applica-
    tion of the standard of intermediate scrutiny.
    32
    Cite as: 
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                           Opinion of the Court
    ¶73 That said, it is important to recognize the nature and extent
    of the classification at issue. This is not a statute that ―closes a
    door or denies opportunity‖ to men outright. 
    Virginia, 518 U.S. at 532
    . Instead, this provision preserves meaningful opportunities
    for both sexes, and the threshold basis for its differential treatment
    of men and women stems initially not from an outmoded stereo-
    type but from a straightforward matter of biology. It bears em-
    phasizing, moreover, that the requirement the statute imposes on
    men is straightforward and quite simple. See 
    Nguyen, 533 U.S. at 70
    (noting the relevance of the ―minimal‖ obligations imposed on
    unwed fathers under federal immigration law). And we reiterate
    that the standard of intermediate scrutiny does not require a
    closely tailored fit between means and ends. Only a ―substantial‖
    fit is required—a showing that the important ends of government
    are substantially advanced by the statute.
    ¶74 We uphold the statute under this standard. The overarch-
    ing, important governmental objective is clearly prescribed by sta-
    tute—the preservation of the ―best interests‖ of children. See
    UTAH CODE § 78B-6-102(1). That objective is among the most im-
    portant of any in our society.26
    ¶75 To make this objective a reality, moreover, the government
    has long pursued ancillary goals of great significance—of pre-
    scribing laws and procedures aimed at establishing binding con-
    nections between children and parents, either through a child‘s
    natural parents or through adoption.27 In either setting, the State
    has a twofold interest—of promptly identifying those who might
    be designated as parents, and of reliably28 ensuring that such per-
    26See Palmore v. Sidoti, 
    466 U.S. 429
    , 433 (1984) (―The State, of
    course, has a duty of the highest order to protect the interests of
    minor children . . . .‖).
    27 UTAH CODE § 78B-6-102(5)(a) (―[T]he state has a compelling
    interest in providing stable and permanent homes for adoptive
    children in a prompt manner, in preventing the disruption of
    adoptive placements, and in holding parents accountable for
    meeting the needs of children‖).
    28 Our point is emphatically not to suggest that fathers are in-
    herently unreliable or untrustworthy. Infra ¶ 87 (Nehring, J., dis-
    senting) (contending that we ―embrace the stereotype that unwed
    33
    In re Adoption of J.S.
    Opinion of the Court
    sons will fulfill their parental role.29 To further those goals, more-
    over, the state has a subsidiary interest in giving voice to those
    with a demonstrated commitment to the best interests of the
    child—to allow them to either step forward to assert their interest
    in parenting a child or, if not, to express their willingness to relin-
    quish their rights of parenthood by consenting to an adoption.30
    fathers are inherently less reliable‖ who must ―take extra steps to
    ensure the State that their desire to parent (and ability to parent) is
    reliable and genuine‖). It is simply that the affidavit requirement is
    the state‘s attempt to create a procedure that reliably does the job of
    indicating who has parental rights and standing to object to an
    adoption.
    29  See 
    Wells, 681 P.2d at 203
    (stating that the state has a ―strong
    interest in speedily identifying those persons who will assume the
    parental role‖ and promptly ascertaining whether they will ―ful-
    fill their corresponding responsibilities‖); UTAH CODE § 78B-6-
    102(5)(f) (―[T]he state has a compelling interest in requiring un-
    married biological fathers to demonstrate commitment by . . . es-
    tablishing legal paternity in accordance with the requirements of
    [the Adoption Act].‖).
    30  UTAH CODE § 78B-6-102(5)(b) (recognizing unmarried moth-
    er‘s ―right to make timely and appropriate decisions regarding
    her future and the future of the child‖ and ―to assurance regard-
    ing the permanence of an adoptive placement,‖ given that she is
    ―faced with the responsibility of making crucial decisions about
    the future of a newborn child‖); 
    id. § 102(5)(c)
    (recognizing that
    ―adoptive children have a right to permanence and stability in
    adoptive placements‖); 
    id. § 102(5)(d)
    (recognizing that ―adoptive
    parents have a constitutionally protected liberty and privacy in-
    terest in retaining custody of an adopted child‖); 
    id. § 102(5)(e)
    (recognizing that ―an unmarried biological father has an inchoate
    interest that acquires constitutional protection only when he de-
    monstrates a timely and full commitment to the responsibilities of
    parenthood, both during pregnancy and upon the child‘s birth‖);
    
    id. § 102(5)(f)
    (recognizing that ―the state has a compelling interest
    in requiring unmarried biological fathers to demonstrate com-
    mitment by providing appropriate medical care and financial
    support and by establishing legal paternity, in accordance with
    the requirements of this chapter‖); see also 
    Wells, 681 P.2d at 203
    34
    Cite as: 
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                           Opinion of the Court
    ¶76 Justice Nehring‘s dissent rejects these interests as somehow
    reflective of a ―stereotype‖ that ―exclude[s] or protect[s] members
    of one gender because they are presumed to suffer from an inhe-
    rent handicap or to be innately inferior.‖ Infra ¶ 94 (quoting Miss.
    Univ. for Women v. Hogan, 
    458 U.S. 718
    , 725 (1982)). This analysis
    misses the mark on several grounds: (a) the Adoption Act ex-
    cludes no one; it preserves an unwed father‘s right to object to an
    adoption upon fulfillment of straightforward statutory criteria;
    (b) the statute employs no presumption in favor of women, as it
    does not award custody to the mother, but establishes an orderly
    adoption proceeding in circumstances where the sole parent rec-
    ognized by law has elected to relinquish parental rights and give
    up the child for adoption (to a couple, or even a single man or
    woman); and (c) the dissent confuses the threshold question of the
    legitimacy of the state‘s interests with the secondary question of
    the degree to which the statute in question advances those inter-
    ests.31
    (recognizing state‘s strong subsidiary interest in ascertaining
    ―whether adoptive parents must be substituted‖).
    31  The Adoption Act neither elevates the status of women as
    preferred parents nor diminishes the status of men in that capaci-
    ty. It simply establishes a mechanism for facilitating adoption in
    the circumstance in which the sole legal parent of a child (an un-
    wed mother) elects to opt out of her right to parent and to waive
    that right in favor of adoption. Because the adoptive parent(s)
    may be a man, woman, or a married couple, see UTAH CODE
    §§ 78B-6-117(2)(b), the legislative decision at issue is not to favor
    mothers over fathers, but simply to clarify the framework neces-
    sary to assure that the child‘s interests will be protected by a par-
    ent of some sort.
    An unwed father‘s rights are fully protected under the Adop-
    tion Act. A father who steps forward in a timely fashion and sub-
    mits the required affidavit acquires more than just a seat at the
    adoption table. He secures the right to assert his interest as a fa-
    ther, and to preclude the planned adoption—regardless of wheth-
    er the would-be adoptive parent is male, female, or a couple. See
    
    id. § 78B-6-133
    (stating that a father in compliance with the statu-
    tory requirements to establish paternity may withhold consent to
    an adoption); 
    id. § 78B-6-117(2)(b)
    (stating that subject to some
    35
    In re Adoption of J.S.
    Opinion of the Court
    ¶77 For these and other reasons, there is no basis for Justice
    Nehring‘s assertion that the affidavit requirement is ―actually
    based on generalizations about men‘s inherent qualities as par-
    ents‖—that ―they are uninterested in their offspring and ill-suited
    or incompetent caregivers.‖ Infra ¶¶ 94–95.32 Those stereotypes
    are nowhere found in the interests set forth by statute or in the
    appellees‘ briefs in this case. Thus, we agree that the court is not
    to proceed on the basis of ―justification[s] of its own invention.‖
    Infra ¶ 93. But it is the dissent, and not the court, that commits that
    mistake. The interests we analyze are those identified in our law—
    conditions, ―any single adult‖ may adopt a child). Accordingly,
    there is no basis for the supposed ―implication . . . that fathers are
    inherently not reliable‖ or are somehow ―lesser parents.‖ Infra
    ¶ 87 (Nehring, J., dissenting). That implication is a product of the
    dissent‘s imagination. And it is thoroughly undermined by the
    above-explained structure of the adoption scheme in question.
    32 The stereotypes put forward by Justice Nehring‘s dissent are
    imported wholesale from opinions of the United States Supreme
    Court analyzing sex discrimination far removed from that at issue
    here. See infra ¶ 93 (quoting Miss. Univ. for Women v. Hogan, 
    458 U.S. 718
    (1982); United States v. Virginia, 
    518 U.S. 515
    (1996)). The
    matter of excluding men from a public nursing school (Hogan) or
    of precluding women from participating in the ―adversative‖ citi-
    zen-soldier program at Virginia Military Institute (Virginia) may
    be properly understood as rooted ultimately in stereotypes—of
    nursing as work unsuitable for men, 
    Hogan, 458 U.S. at 729
    (con-
    cluding that the school‘s policy ―tends to perpetuate the stereo-
    typed view of nursing as an exclusively woman‘s job‖), or of a
    woman being ill-suited for combat training, 
    Virginia, 518 U.S. at 550
    (noting the school‘s position that ―while some women would
    be suited to and interested in‖ the program, ―VMI‘s adversative
    method would not be effective for women as a group‖ (internal qu-
    otation marks omitted)). But no such stereotype is implicated
    here. Instead, the threshold governmental interests at stake are
    those set forth above. And these objectives implicate not a stereo-
    type but an objective distinction between unmarried parents—
    given that mothers are identified and legally designated as par-
    ents by virtue of their biological connection, but fathers require
    something more (both biologically and legally).
    36
    Cite as: 
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                            Opinion of the Court
    of protecting the best interests of children by giving voice in their
    adoption to those who have established a demonstrated commit-
    ment to their well-being prescribed clearly by statute. And those
    interests (along with their substantial advancement by the affida-
    vit requirement) are likewise echoed in the briefs filed by appel-
    lees herein.33
    33 See Brief of Appellees 21–22 (asserting that unlike an unwed
    father, a mother‘s legal commitment to her child matures at birth;
    emphasizing that it is the mother who must ―decide whether she
    will parent the child or whether an adoption plan will be pur-
    sued‖; justifying discrimination in affidavit requirement on the
    basis of these differences); 
    id. at 25–26
    (asserting that the affidavit
    requirement ―advances the state‘s strong interest in avoiding dis-
    ruptive placements and protecting the right of ‗an unmarried
    birth mother, who is faced with the responsibility of making cru-
    cial decisions about the future of the newborn child, . . . to make
    timely and appropriate decisions regarding her future and the fu-
    ture of the child‘‖) (quoting UTAH CODE § 78B-6-102(5)(b)); 
    id. at 26
    (emphasizing the ―courage‖ of a mother‘s decision to carry a
    child and ―to place her child for adoption‖ while asserting that the
    mother ―should not have to wonder whether the adoption may
    later be undone by a putative father who has not sworn under
    oath that he will ‗assume the parental role‘ and ‗fulfill the corres-
    ponding responsibilities‘‖) (quoting 
    Wells, 681 P.2d at 203
    ); 
    id. at 28
    (asserting that the requirement of an affidavit puts unwed fa-
    ther on rough par with unwed mother by indicating that father ―is
    willing to assume the parental role and fulfill . . . corresponding re-
    sponsibilities‖; also asserting that ―father who does not file an af-
    fidavit does not acquire‖ the ―weight‖ afforded to a mother, who
    have already ―assume[d] the parental role‖ by their decisions and
    conduct); 
    id. at 35–36
    (contending that affidavit requirement sub-
    stantially advances important interests and is ―‗narrowly tailored‘
    because . . . ‗compliance . . . is a very simple, easily understanda-
    ble, and narrowly tailored process‘‖). To some extent our analysis
    expands upon the justifications identified in the law and by the
    appellees, but we find nothing in the logic or terms of the govern-
    ing caselaw to limit our thinking to the precise bounds and terms
    of the parties‘ briefs. Such a restriction would be more than a little
    troubling. On a matter as significant as judging the constitutional-
    ity of a duly enacted statute, surely our judges are expected to ex-
    37
    In re Adoption of J.S.
    Opinion of the Court
    ¶78 The affidavit requirement in Utah Code section 78B-6-
    121(3) can be upheld as substantially advancing these important
    objectives. An unwed mother‘s connection to her child is objec-
    tively apparent. It is also substantial. By electing to carry the child
    to term (and not ending it by abortion or emergency contracep-
    tion), a mother gives an objective indication of her commitment to
    the best interests of her child.34 Our law has long-recognized the
    ercise independent judgment and are not slaves to the precise
    terms and analysis of the parties‘ briefs.
    34  Our point is different from the one Justice Nehring‘s dissent
    addresses. Thus, we are not suggesting that the mother‘s acts are a
    precise parallel to the unwed father‘s burden (of filing the affida-
    vit), or that either parent‘s acts provide an ironclad assurance that
    they will ―care for the child after it is born.‖ Infra ¶ 107. The degree
    of parallelism between the mother‘s and father‘s commitment
    does not exactly lend itself to precise mathematical comparison.
    But we are unwilling to denigrate the level of commitment inhe-
    rent in the decision to carry a child to term, or to gainsay the diffi-
    culty of pregnancy or the availability of measures for ending a
    pregnancy. See infra ¶ 108 (questioning whether ―a woman‘s so-
    called ‗voluntary decision‘ to carry the baby to term ‗express[es]‘
    anything about . . . her commitment to the child‘s best interest af-
    ter it is born‖). And whatever level of commitment that decision
    entails, it bears emphasizing that the unwed father‘s required
    commitment is relatively minimal; the mere signing of an affidavit
    containing a ―plan‖ for providing for a child is hardly onerous.
    It is easy to hypothesize ―examples of women who choose not
    to have an abortion but who nevertheless failed to provide the ne-
    cessary care for their children.‖ Infra ¶ 108, n.78. But again, the
    point of our analysis is not that a mother‘s decision to bring a
    child into the world is an effective guarantee. It is that the decision
    provides some useful information. And the shortcomings of the
    mother‘s commitment can also be extended to that of the father.
    We likewise do not have to look far to find examples of men who
    expressed a legal commitment to their children but nevertheless
    failed to provide the necessary care. Neither problem renders the
    attempt to secure a parent‘s commitment illegitimate. And the
    shortcomings of the mother‘s commitment are not a sufficient ba-
    sis for striking down the legal requirement for the father on
    38
    Cite as: 
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                           Opinion of the Court
    significance of that commitment. It does so by deeming a mother‘s
    parental rights and responsibilities as fully matured at the time of
    the child‘s birth, in a manner giving her a voice in the child‘s up-
    bringing—either to proceed as the child‘s parent or to relinquish
    her rights in consenting to an adoption.
    ¶79 An unwed father‘s role is inherently different than a moth-
    er‘s. His connection to his offspring may be unknown or at least
    indeterminate. And unlike the mother, the father has not necessar-
    ily given an objective manifestation of his commitment to the
    child‘s best interests, as his contribution may be only fleeting and
    incidental. This is why our law has long deemed the unwed fa-
    ther‘s rights as only inchoate or provisional—as requiring the ful-
    fillment of legal prerequisites before being granted the rights and
    responsibilities of parenthood, and before being given a concomi-
    tant voice in upbringing or a decision regarding adoption.35
    grounds of unconstitutionality. The law imposes a rough-and-
    ready tradeoff for unwed mothers and fathers. We find the mi-
    nimal imposition of the affidavit requirement to be justified by the
    substantial interests that it advances. 
    See supra
    ¶ 70 (explaining
    the applicable standard of scrutiny, and noting that this is not a
    case requiring narrow tailoring, or an ―exceedingly persuasive
    justification‖ for an outright bar to an opportunity for one of the
    sexes).
    35  Justice Nehring‘s denunciation of the statutory scheme is
    puzzling in light of the longstanding—and widespread—
    acceptance of this general construct in the law across the country.
    Our Adoption Act is hardly unique in requiring unwed fathers
    (but not mothers) to step forward to fulfill statutory prerequisites
    to the establishment of parental rights. Every state requires puta-
    tive fathers to fulfill some formal requirement that is not imposed
    on mothers, e.g., by registering with a putative father registry or
    by taking some other affirmative act such as filing a paternity suit.
    See Mary Beck, Toward a National Putative Father Registry Database,
    25 Harv. J.L. & Pub. Pol‘y 1031, 1080, (2002) (detailing putative
    father registries in 32 states, all of which place an onus on the put-
    ative father not placed on the unwed mother); Children‘s Bureau,
    U.S. Dep‘t of Health & Human Servs., The Rights of Unmarried
    Fathers                  (2014),              available             at
    https://www.childwelfare.gov/systemwide/laws_policies/statu
    39
    In re Adoption of J.S.
    Opinion of the Court
    tes/putative.pdf (detailing paternity statutes in all fifty states and
    various methods of establishing paternity whether by registration,
    paternity action, or paternity affidavit). Granted, there are differ-
    ences in the laws of the states as to the precise nature of the fa-
    ther‘s legal duty. But the uniform rule throughout the United
    States is that an unwed father is required to make a formal show-
    ing—in some manner not required of unwed mothers—to estab-
    lish his parental rights. Noticeably absent from the national legal
    landscape is a requirement of a maternity declaration for unwed
    birth mothers. And in that sense the discrimination that the dis-
    sent complains of is hardly an obscure feature of Utah law; it is a
    longstanding, well-settled element of the law across the country.
    So if our law can accurately be denigrated as a product of sex-
    based stereotyping, then the same is true of the law of essentially
    every other state throughout the country. The dissent‘s dismissive
    denigration of Utah law falls flat on that and other grounds.
    It is a fair question to ask whether the requirements of Utah
    law (in particular, the filing of an affidavit) go further than neces-
    sary. But that is at heart a policy question—a matter of line-
    drawing, as to whether a paternity filing itself is sufficient to ad-
    vance the state‘s interests, and to place an unwed father on equal
    footing with the unwed mother.
    Justice Nehring takes no issue, in either his procedural or subs-
    tantive due process analysis, with ―other requirements‖ the sta-
    tute imposes to ensure that an unwed father has accepted the re-
    sponsibilities of parenthood. See infra ¶¶ 121, 131. To that extent
    he acknowledges that unwed fathers may properly be subjected to
    requirements that unwed mothers are not. See infra ¶ 131 (con-
    cluding that the statute‘s ―other requirements . . . suffice to ensure
    that the unwed father has accepted responsibility and stepped
    forward as a parent‖). As to another requirement that further ad-
    vances this important objective, however, Justice Nehring con-
    cludes that the legislature has taken things a step too far. Reason-
    able minds can differ on the question whether that requirement
    (of an affidavit) is substantially related to ensuring the objective
    that all agree is important. But our disagreement on this matter
    can hardly justify the loaded rhetoric—of outmoded stereotypes,—
    employed by Justice Nehring infra ¶ 111.
    40
    Cite as: 
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                           Opinion of the Court
    ¶80 The fundamental differences36 between unwed mothers
    and fathers explain the basis for our statute‘s requirement of an
    affidavit for only the latter. The affidavit is defensible as an at-
    tempt to put unwed parents on equal footing. Mothers express
    their commitment to their offspring through the voluntary deci-
    sion to carry a child to term—a decision that commits them to the
    statutory responsibility of caring and providing for the child as a
    legal parent. See UTAH CODE § 78B-15-201(1) (stating that the
    mother-child relationship is established by a ―woman‘s having
    given birth to the child‖); 
    id. § 78B-12-105
    (parents have legal duty
    to ―support their children‖). With that in mind, the Adoption Act
    requires unwed fathers to express a parallel commitment in the
    form of a written affidavit. That parallelism may not be perfect or
    immune from criticism as a policy matter, but it is not unconstitu-
    tional.
    ¶81 We uphold the statutory affidavit requirement on that ba-
    sis. Thus, we hold that the requirement in Utah Code section 78B-
    6-121(3) substantially advances the important governmental inter-
    36  The relevant ―differences‖ are not mere matters of physiolo-
    gy, or of any inference that ―a woman‘s physical characteristics‖
    sustain ―generalizations about her feelings‖ sufficient to suggest a
    ―greater commitment to the best interest of her child.‖ Infra ¶ 111
    (Nehring, J., dissenting). The point is much narrower—that a
    mother‘s decision to carry a child to term is a rough parallel to the
    minimal commitment expressed in a mere affidavit. Thus, we re-
    ject the dissent‘s characterization of Utah law as ―founded in sex
    stereotypes,‖ and its attempt to paint this opinion with the brush
    of a ―long line of overruled laws and cases‖ evidencing such a
    mindset. Infra ¶ 111.
    We can properly disagree about the wisdom of the legisla-
    ture‘s policy decision to add a requirement of an affidavit to the
    nearly universal requirement of a paternity filing. And we can
    likewise disagree about whether our differences on that point rise
    to the level of a constitutional problem. But our differences go on-
    ly to the complex legal questions presented. With due respect to
    our dissenting colleague, they are not a product of any form of
    sex-based stereotyping, much less our agreement with the out-
    moded thinking expressed in the precedent cited by Justice Nehr-
    ing. Infra ¶ 111 & n.85.
    41
    In re Adoption of J.S.
    Opinion of the Court
    ests identified above. It does so by assuring that any biological
    parent who steps forward to assert an interest in a child has mani-
    fested a commitment to the child‘s best interests. In light of the
    fact that the mother does that as an objective result of her preg-
    nancy and delivery, the statute requires the father to do so by ex-
    pressing a commitment in writing and under oath.
    ¶82 Both commitments are important prerequisites to the ma-
    turation of the parental right—and to the voice that accompanies
    such a right in the context of an adoption. Where both mother and
    father have provided the commitment that is legally necessary to
    a mature parental right, they both are in a position to participate
    in the decision whether to raise the child themselves or to place it
    for adoption. If not, however, the law treats the decision as be-
    longing only to the parent whose rights have matured. That is
    constitutionally permissible, as it substantially advances the im-
    portant goal of protecting the best interests of children, who are in
    turn substantially interested in establishing binding connections
    to committed parents (natural or adopted) based on informed de-
    cisions of those who have shown to have their best interests at
    heart.37
    37 As Justice Parrish notes in her dissent, the statute does not
    hold an unwed mother to the same ―commitment‖ required of an
    unwed father—of attesting under oath ―that he is fully able and
    willing to have full custody of the child,‖ of ―set[ting] forth his
    plans for care of the child,‖ and of ―agree[ing] to a court order of
    child support and the payment of [pregnancy and child birth] ex-
    penses.‖ Infra ¶ 155 (Parrish, J., dissenting) (quoting UTAH CODE
    § 78B-6-121(3)(third alteration in original)). But this is not a basis
    for doubting the ―fit‖ between the governmental interest of pro-
    tecting the best interests of children and the means prescribed by
    statute. Infra ¶ 155 (Parrish, J., dissenting). It is simply a reflection
    of the essence of an adoption proceeding. Of course the mother
    who chooses to place her child with adoptive parents is not re-
    quired to attest to her desire and ability to retain custody of the
    child, to present a plan for its care, or to subject herself to a court
    order to pay for its needs. We are dealing here with an adoption,
    in which the mother has determined that she is not in a position to
    do any of these things. So the lack of parallelism between father
    and mother is not an indication of a lack of fit between means and
    42
    Cite as: 
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                            Opinion of the Court
    ¶83 Bolden questions the importance of these functions of the
    statutory affidavit, asserting that the statutory requirement of a
    paternity filing accomplishes approximately the same things. Jus-
    tice Nehring‘s dissent echoes this assertion. Infra ¶ 102. But Bol-
    den‘s paternity petition was unverified, and a signature under
    oath is a matter of substantial legal significance. See State v. Gutier-
    rez-Perez, 
    2014 UT 11
    , ¶¶ 14–20, 
    323 P.3d 1017
    (describing the his-
    tory and significance of the constitutional requirement of an ―oath
    or affirmation‖). And in any event the prescribed elements of the
    affidavit are not required components of a paternity petition.
    Nothing in the Parentage Act imposes an unconditional require-
    ment that a support order be entered, see UTAH CODE § 78B-15-
    616, or requires that a father state that he will accept full custody.
    Indeed, a determination of paternity may have nothing to do with
    custody. And nothing in the Parentage Act asks for a childcare
    plan.38
    ends; it is just a reflection of the very different positions of unwed
    mother and father in this setting.
    At the time of the child‘s birth, there can be no question that
    the mother‘s demonstrated commitment to the child is dispropor-
    tionate to the father‘s. And at that point, it cannot properly be said
    that the mother has provided no indication of any ―forward-
    looking commitment to her child,‖ or that the father has shown an
    ―identical level of commitment.‖ Infra ¶ 156 (Parrish, J., dissent-
    ing). Surely the mother‘s sacrifice in carrying the child to term is
    some indication of her commitment to the child‘s best interests.
    
    See supra
    ¶ 78. And without some affirmative requirement of a
    commitment by the father (through the statutory affidavit, for ex-
    ample), it cannot properly be said that the mother and father are
    on equal footing. We can disagree with the legislature about the
    best place to draw the line. But our disagreements on line-
    drawing do not establish the unconstitutionality of the statutory
    scheme under a standard that does not require a precise fit be-
    tween means and ends.
    38 Justice Nehring‘s dissent challenges the element of a child-
    care plan in the affidavit requirement, noting that there is nothing
    in a mother‘s commitment to her child that requires an explicit
    plan. Infra ¶ 107 (Nehring, J., dissenting). Yet, that concern dis-
    counts the fact that a mother‘s legal obligations as a parent neces-
    43
    In re Adoption of J.S.
    Opinion of the Court
    ¶84 Thus, the affidavit advances important functions that are
    not addressed by the paternity action alone. We uphold the sta-
    tute on that basis, and accordingly affirm the denial of Bolden‘s
    motion to intervene in the adoption proceedings herein.
    sitate some sort of plan as a practical matter. In any event, Bolden
    is in no position to complain about the particular elements of the
    affidavit requirement, as he failed to file any affidavit at all. And
    ultimately, the dissent‘s argument again misperceives the govern-
    ing legal standard. The question is not one of narrow tailoring; the
    required fit between means and ends is only a matter of substan-
    tiality, and we find the rough comparability between the mother‘s
    expression of commitment and planning and that required of the
    father to be sufficient.
    44
    Cite as: 
    2014 UT 51
                          NEHRING, A.C.J., dissenting
    ASSOCIATE CHIEF JUSTICE NEHRING, dissenting:
    INTRODUCTION
    ¶85      I dissent. First, Utah Code section 78B-6-121(3)(b) un-
    constitutionally discriminates on the basis of gender stereotypes and
    is thus repugnant to the principle of equal protection enshrined in
    both the United States Constitution and the Utah Constitution.
    Second, the majority refuses to analyze Mr. Bolden‘s claim under
    procedural due process at all. Finally, the majority fails to employ
    strict scrutiny review despite the fact that section 78B-6-121(3)(B)
    Infringes upon Mr. Bolden‘s fundamental parental rights. Al-
    though I believe the statute is unconstitutional primarily as a vi-
    olation of equal protection, I also dissent because the affidavit re-
    quirement violates the Due Process Clause where it infringes on
    Mr. Bolden‘s fundamental parental rights but is not narrowly tai-
    lored to serve a compelling government interest.
    ¶86 ―The relationship between parent and child is protected
    by the federal and state constitutions.‖1 Among the persons en-
    titled to protection are unmarried fathers.2 The liberty interest of
    parents in the care, custody, and control of their children ―is per-
    haps the oldest of the fundamental liberty interests‖ recognized
    by the United States Supreme Court.3 Mr. Bolden challenges Utah
    Code section 78B-6-121(3)(b)—the affidavit requirement—as a vi-
    olation of both due process and equal protection under the United
    States Constitution and the Utah Constitution. I would hold that
    (1) Utah Code section 78B-6-121(3)(b) unconstitutionally discrimi-
    nates on the basis of gender stereotypes and thus fails to survive
    intermediate scrutiny under the Equal Protection Clause, (2) as
    applied to Mr. Bolden, the process set forth in section 78B-6-121(3)
    is fundamentally unfair and thus a deprivation of procedural due
    process, and (3) section 121(3) infringes upon a fundamental right
    and is unconstitutional under strict scrutiny review.
    1   Wells v. Children’s Aid Soc’y, 
    681 P.2d 199
    , 202 (Utah 1984).
    2 Lehr v. Robertson, 
    463 U.S. 248
    , 261 (1983); Caban v. Mohammed,
    
    441 U.S. 380
    , 394 (1979); Stanley v. Illinois, 
    405 U.S. 645
    (1972);
    Thurnwald v. A.E., 
    2007 UT 38
    , ¶¶ 25, 28, 
    163 P.3d 623
    ; 
    Wells, 681 P.2d at 202
    .
    3 Troxel v. Granville, 
    530 U.S. 57
    , 65 (2000); see also Meyer v. Ne-
    braska, 
    262 U.S. 390
    , 399, 401 (1923).
    45
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ANALYSIS
    I. UTAH CODE SECTION 78B-6-121(3)(b)
    UNCONSTITUTIONALLY DISCRIMINATES
    ON THE BASIS OF SEX
    ¶87      I dissent because I believe the affidavit requirement vi-
    olates equal protection. It does so primarily by discriminating be-
    tween the sexes on the basis of gender stereotypes and failing to
    satisfy the heightened scrutiny standard. To its credit, the majori-
    ty acknowledges that section 78B-6-121(3)(b) discriminates on the
    basis of sex. The majority accurately explains that sex is a suspect
    class that is ―so generally problematic (and so unlikely to be rea-
    sonable)‖ that it ―trigger[s] heightened scrutiny.‖4 Unfortunately,
    the majority‘s successful application of the heightened scrutiny
    standard ends there. Though the majority pays lip service to the
    proper standard, it fails to actually engage in a heightened scruti-
    ny analysis.5 I respectfully dissent because I believe the majority
    (1) fails to conduct a searching inquiry into the actual purposes
    behind the legislation and does not ferret out the stereotypes that
    underlie it, (2) fails to require the Does to bear their burden to jus-
    tify the discriminatory classification, and (3) fails to recognize that
    the statute is not related to any important government purpose
    where it both stems from gender stereotypes and is duplicative of
    other statutory requirements.
    ¶88       The United States Constitution provides that ―[n]o State
    shall . . . deny to any person within its jurisdiction the equal pro-
    4  Supra ¶ 68; Nguyen v. I.N.S., 
    533 U.S. 53
    , 60 (2001); see also
    Utah Safe to Learn-Safe to Worship Coalition, Inc. v. State, 
    2004 UT 32
    ,
    ¶ 31, 
    94 P.3d 217
    (―Where a legislative enactment implicates a
    fundamental or critical right or creates classifications which are
    considered impermissible or suspect in the abstract, we apply a
    heightened degree of scrutiny.‖ (internal quotation marks omit-
    ted)).
    5 As adeptly explained by Justice Parrish in her dissent, the
    majority mangles the heightened scrutiny test by applying a lesser
    standard that closely resembles rational basis review. 
    See supra
    ¶ 90 (―[I]t appears to me that the majority opinion‘s formulation
    of the lower level of intermediate scrutiny it applies is, in practice,
    virtually indistinguishable from . . . rational basis review . . . .‖).
    46
    Cite as: 
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                          NEHRING, A.C.J., dissenting
    tection of the laws,‖6 and the Utah Constitution guarantees that
    ―[a]ll laws of a general nature shall have uniform operation.‖7
    ―[T]hese two constitutional provisions embody the same general
    principle: persons similarly situated should be treated similarly
    . . . .‖8 Although the uniform operation of laws provision of the
    Utah Constitution ―establishes different requirements from the
    federal Equal Protection Clause,‖ Utah‘s uniform operation of the
    laws provision is ―at least as exacting, and in some circumstances,
    more rigorous than the standard applied under the federal constitu-
    tion.‖9 Therefore, any provision that fails to meet the federal
    equal protection standard would likewise fail under article I, sec-
    tion 24 of the Utah Constitution, and some provisions that survive
    under federal law might fail under the Utah Constitution. Be-
    cause Utah Code section 78B-6-121(3)(b) (the affidavit require-
    ment) discriminates against men without adequate justification
    and on the basis of invidious gender stereotypes, I would hold
    that it violates the principles of equal protection enshrined in both
    constitutions.
    ¶89     Utah Code section 78B-6-121(3)(b) states that an unmar-
    ried father‘s infant may be adopted without his consent unless he
    files a ―sworn affidavit‖ (1) ―stating that he is fully able and will-
    ing to have full custody of the child,‖ (2) ―setting forth his plans
    for care of the child,‖ and (3) ―agreeing to a court order of child
    support and the payment of expenses incurred in connection with
    6   U.S. CONST. amend. XIV, § 1.
    7   UTAH CONST. art. I, § 24.
    8Gallivan v. Walker, 
    2002 UT 89
    , ¶ 31, 
    54 P.3d 1069
    (internal
    quotation marks omitted).
    9  Whitmer v. City of Lindon, 
    943 P.2d 226
    , 230 (Utah 1997) (em-
    phasis added) (internal quotation marks omitted); see also State v.
    Drej, 
    2010 UT 35
    , ¶ 34 n.6, 
    233 P.3d 476
    (―Rather than conforming
    to the federal rubric, we have developed two levels of scrutiny for
    our analysis of the constitutionality of a statutory scheme under
    the uniform operation of laws provision.‖); Greenwood v. City of N.
    Salt Lake, 
    817 P.2d 816
    , 821 (Utah 1991) (stating that the test under
    article I, section 24 of the Utah Constitution is ―somewhat more
    restrictive than the federal test‖).
    47
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    the mother‘s pregnancy and the child‘s birth.‖10          The unwed
    mother is not required to file an affidavit.
    ¶90     Because Utah Code section 78B-6-121(3)(b) facially dis-
    criminates on the basis of sex, it can be upheld only if the classifi-
    cation (1) serves ―important governmental objectives‖ and (2) ―the
    discriminatory means employed are substantially related to the
    achievement of those objectives.‖11 Today the court completely
    abandons this test in favor of a vision of equal protection that al-
    lows discriminatory laws to be upheld when the court believes
    that the discriminatory requirement is ―straightforward and quite
    simple,‖ ―relatively minimal,‖ and ―hardly onerous.‖12 But a con-
    sideration of the severity of the harm to the discriminated-against
    class is an improper consideration that has no role in the equal
    protection analysis.13 It does not matter how ―simple‖ or
    10 The unmarried father must also satisfy three other require-
    ments: He must (1) initiate proceedings to establish paternity in a
    Utah district court, (2) file notice of the commencement of paterni-
    ty proceedings with the Department of Health, and (3) offer to
    pay and pay (if possible) ―a fair and reasonable amount of the ex-
    penses incurred in connection with the mother‘s pregnancy and
    the child‘s birth.‖ UTAH CODE § 78B-6-121(3)(a), (c)–(d).
    11 Miss. Univ. for Women v. Hogan, 
    458 U.S. 718
    , 724 (1982) (in-
    ternal quotation marks omitted); 
    Nguyen, 533 U.S. at 60
    ; United
    States v. Virginia, 
    518 U.S. 515
    , 533 (1996).
    12 Supra ¶¶ 73, 78 n.34; see also supra ¶ 4 (describing the affida-
    vit requirement as ―a minor step‖ and a ―simple, straightforward
    hurdle‖ that ―countless unwed fathers have cleared‖).
    13 See, e.g., Baskin v. Bogan, 
    766 F.3d 648
    , 656 (7th Cir. 2014)
    (―When a statute discriminates against a protected class[,] . . . it
    doesn‘t matter whether the harm inflicted by the discrimination is
    a grave harm . . . . [A] statute that imposed a $2 tax on women but
    not men would be struck down unless there were a compelling
    reason for the discrimination. It wouldn’t matter that the harm to
    each person discriminated against was slight . . . .‖(emphasis added)).
    The majority also misstates Nguyen, 
    533 U.S. 53
    , on this point. Su-
    pra ¶ 73 (citing Nguyen for the proposition that ―it bears empha-
    sizing . . . that the requirement the statute imposes on men is
    straightforward and quite simple‖). Nguyen does not support the
    48
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                          NEHRING, A.C.J., dissenting
    ―straightforward‖ a discriminatory hurdle is—under the Equal
    Protection Clause, the government may not place any hurdle in
    front of a protected class without adequate justification. The ma-
    jority also relies on an age-old justification for discrimination: that
    everyone else is doing it14 —a claim which, even if it were true,
    does not provide a legal basis for upholding an unconstitutional
    law. Even if every state discriminated against men on the basis of
    their gender, ―[m]inorities trampled on by the democratic process
    have recourse to the courts; the recourse is called constitutional
    law.‖15
    notion that the ease with which one can comply with a discrimi-
    natory requirement is somehow significant to the basic equal pro-
    tection analysis. In Nguyen, the court first found that the discrimi-
    nation was substantially related to two important governmental
    objectives and was not based on 
    stereotypes. 533 U.S. at 62
    –70.
    Only then did the Court note that the challenged requirement was
    also neither ―unnecessary,‖ ―harsh[],‖ ―rigid[],‖ nor ―inordinate.‖
    
    Id. at 70–71.
    The implication is that even if a statute were substan-
    tially related to an important government interest, it might still
    fail to pass intermediate scrutiny if the means used were overly
    harsh, rigid, or unnecessary. But the converse is not true: a statute
    does not pass the primary test of equal protection simply on the
    basis that the discriminatory requirement is easy to comply
    with—and the simplicity of the burden imposed should not affect
    the court‘s analysis of the primary questions of governmental in-
    terest and substantial relation.
    14 Supra ¶ 79 n.35 (―[T]he discrimination that the dissent com-
    plains of is hardly an obscure feature of Utah law; it is a
    longstanding, well-settled element of the law across the country.
    So if our law can accurately be denigrated as a product of unfair
    sex discrimination, then the same is true of the law of essentially
    every other state throughout the country.‖); supra ¶ 79 n.35 (―Jus-
    tice Nehring‘s denunciation of the statutory scheme is puzzling in
    light of the longstanding—and widespread—acceptance of this
    general construct in the law across the country. Our Adoption
    Act is hardly unique . . . .‖).
    15   
    Baskin, 766 F.3d at 671
    .
    49
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ¶91      The United States Constitution‘s guarantee of equal pro-
    tection of the laws is not subject to an exception for discrimination
    that is ―minimal,‖ pervasive, nor which imposes a ―rough-and-
    ready tradeoff.‖16 And the guarantee of equal protection applies
    even to laws that do not create an ―outright bar‖ against a pro-
    tected class.17 As the United States Supreme Court explained in
    Mississippi University for Women v. Hogan ―the party seeking to
    uphold a statute that classifies individuals on the basis of their
    gender must carry the burden of showing an exceedingly persuasive
    justification for the classification.‖18 The burden of justifying a
    discriminatory law is ―demanding‖ and ―rests entirely‖ on the
    party seeking to uphold it.19
    ¶92      When confronted by a statute that facially discriminates
    on the basis of sex, the court‘s equal protection analysis should
    consist of a rigorous inquiry that answers the following two key
    questions. First: What is the governmental objective actually
    served by the statute, and is it an important one? Second: If the
    governmental objective is indeed important, is the discriminatory
    classification directly and substantially related to that objective?20
    The majority fails to properly analyze either of these questions. I
    16   
    See supra
    ¶ 78 n.34.
    17  Reed v. Reed, 
    404 U.S. 71
    (1971) (striking down a law giving
    preference to men over women in administering estates); Frontiero
    v. Richardson, 
    411 U.S. 677
    (1973) (striking down a law that pro-
    vided that a woman could only claim her husband as a dependent
    if she submitted certain proof, whereas a man could automatically
    claim his wife as a dependent). Contra supra ¶ 78 n.34.
    18 
    458 U.S. 718
    , 724 (1982) (emphasis added) (internal quotation
    marks omitted); see also J.E.B. v. Alabama ex rel. T.B., 
    511 U.S. 127
    ,
    136 (1994); 
    Virginia, 518 U.S. at 533
    .
    19   
    Virginia, 518 U.S. at 533
    .
    20 Miss. Univ. for 
    Women, 458 U.S. at 725
    , 729–30 & n.16 (strik-
    ing down a nursing school‘s policy of excluding men from admis-
    sion under both parts of the equal protection test: (1) because the
    ―actual purpose underlying the discriminatory classification‖ was
    based on an archaic and overbroad stereotype and (2) ―also be-
    cause,‖ in any event, the classification was not ―substantially and
    directly related‖ to the state‘s ―proposed‖ objective).
    50
    Cite as: 
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                           NEHRING, A.C.J., dissenting
    would hold that the statute fails to survive heightened scrutiny
    under both parts of the equal protection test.
    A. The Government Objective Served by Utah Code Section
    78B-6-121(3)(b) Is Illegitimate Because it Is Based on the
    Stereotype That Men Are Inherently Inferior Parents
    ¶93     By now it is well established that legislative objectives
    based on gender stereotypes are not legitimate under any stan-
    dard of scrutiny.21 To determine whether the government objec-
    tive is important, the court must engage in a ―searching‖ in-
    quiry.22 It must take great care to ascertain ―whether the statutory
    objective itself reflects archaic and stereotypic notions.‖ 23 If it
    does, ―the objective itself is illegitimate.‖24 Yet, instead of taking
    ―[c]are‖ to ―ascertain[] whether‖ the claimed statutory objective
    ―itself reflects archaic and stereotypic notions‖25 or ―perpe-
    tuate[s]‖ stereotypes about men‘s presumed ―inferiority‖26 as ca-
    retakers, the majority not only accepts the Does‘ asserted legisla-
    tive purpose but goes so far as to provide a justification of its own
    invention.27 This is impermissible under any formulation of
    heightened scrutiny. Although under the rational basis inquiry a
    court may uphold a law based on any conceivable legitimate gov-
    ernment interest, under heightened scrutiny it is the proponent of
    the legislation‘s burden to articulate an important government in-
    terest and show a substantial relationship between the interest
    and the discriminatory means. The ―mere recitation‖28 that the
    21   
    Id., 458 U.S.
    at 725; Stanton v. Stanton, 
    421 U.S. 7
    , 17 (1975).
    22   Miss. Univ. for 
    Women, 458 U.S. at 728
    .
    23   
    Id. at 725.
       24   
    Id. (emphasis added).
       25   
    Id. 26 Virginia,
    518 U.S. at 534.
    27  
    See supra
    ¶ 75 (―[T]he state has a subsidiary interest in giving
    voice to those with a demonstrated commitment to the best inter-
    ests of the child.‖). This argument is found nowhere in the Does‘
    brief, nor can it be found in the Adoption Act‘s statement of legis-
    lative intent. UTAH CODE § 78B-6-102. See also infra Part I.B.
    28   
    Frontiero, 411 U.S. at 690
    .
    51
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    legislative objective is important is not enough. Here, the majority
    simply accepts that the government goal served by Utah Code
    section 78B-6-121(3)(b) is the ―preservation of the best interests of
    children‖ by ―establishing binding connections between children
    and parents.‖29 But this cannot simply be accepted at face value.30
    ―[B]enign justifications proffered in defense of categorical exclu-
    sions [based on sex] will not be accepted automatically; a tenable jus-
    tification must describe actual state purposes, not rationalizations
    for actions in fact differently grounded.‖31
    ¶94     I dissent because even the most minimally ―searching‖32
    inquiry reveals the impermissible stereotyping at the root of Utah
    Code section 78B-6-121(3)(b). The majority simply accepts that the
    purpose of Utah Code section 78B-6-121(3)(b) is to serve the
    State‘s ―compelling interest‖ in ―holding parents accountable for
    meeting the needs of children.‖33 But Utah Code section 78B-6-
    121(3)(b), by its plain terms, does not apply to ―parents‖—it ap-
    plies to fathers. And the reason it does this is because the statute
    is actually based on generalizations about men‘s inherent qualities
    as parents. A statutory objective that aims to ―exclude or ‗protect‘
    members of one gender because they are presumed to suffer from
    an inherent handicap or to be innately inferior‖ is an ―illegiti-
    mate‖ objective.34
    29   Supra ¶¶ 74–75 (internal quotation marks omitted).
    30
    Frontiero, 411 U.S. at 690
    ; see also supra ¶¶ 92–93 (Parrish, J.,
    dissenting).
    31 
    Virginia, 518 U.S. at 535
    –36 (emphasis added) (internal quo-
    tation marks omitted); see also Gallivan, 
    2002 UT 89
    , ¶ 37 (―[I]t is
    unconstitutional to single out one person or group of persons
    from among the larger class on the basis of a tenuous justification
    that has little or no merit.‖(internal quotation marks omitted)).
    32   Miss. Univ. for 
    Women, 458 U.S. at 728
    .
    33 UTAH CODE § 78B-6-102(5)(a); cf. 
    id. at 78B-6-102(5)(f)
    (stating
    that the Adoption Act aims to protect the compelling interest in
    children‘s welfare by ―requiring unmarried biological fathers to
    demonstrate commitment‖(emphasis added)).
    34   Miss. Univ. for 
    Women, 458 U.S. at 725
    .
    52
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                        NEHRING, A.C.J., dissenting
    ¶95      The affidavit requirement reflects a negative stereotype
    that is commonly wielded against unwed fathers: that they are
    uninterested in their offspring and ill-suited or incompetent care-
    givers. Telling language in the Does‘ brief captures this attitude:
    ―The requirement to set forth his plans for the child‘s care shows
    that [the unwed father] has at least thought through what he
    would need to do to fulfill his parental responsibilities‖ (emphasis
    added). More insight can be gleaned from the Does‘ quotation of
    In re Adoption of Baby Boy Doe for the proposition that the State has
    a legitimate interest in getting a ―glimpse into how [the unwed
    father] will meet daily care-giving responsibilities‖35 so that the
    State can be assured that the unwed father will adequately fulfill
    the parental role.36 The idea that men are inherently ill-suited for
    caregiving and at greater risk of failing to ―fulfill‖ basic parental
    responsibilities is a stereotype and thus an entirely inappropriate
    legislative objective. Indeed, this stereotype is precisely the flip
    side of the same generalization that has long been applied to
    women—i.e., that they are naturally well-suited for the responsi-
    bilities of childcare and the home.37
    35 N.T. v. Doe (In re Adoption of Baby Boy Doe), 
    2008 UT App 449
    ,
    ¶ 5, 
    199 P.3d 368
    .
    36 See also supra ¶ 83. The majority defends the plan element of
    section 78B-6-121(3)(b) by asserting that a mother has ―legal obli-
    gations as a parent‖ that ―necessitate some sort of plan as a prac-
    tical matter.‖ Supra ¶ 83 n.38. It is not clear why the majority be-
    lieves every woman—as a mother—develops a plan to care for her
    child ―as a practical matter‖ but a present, identified father who
    has filed for a declaration of paternity does not, and instead must
    set his plan out in a sworn court document. Supra ¶ 83 n.38. It is
    certainly not true that fathers are not legally liable for neglect of
    their children. See UTAH CODE § 76-5-109 (crime of ―child aban-
    donment‖ includes a ―parent[‘s]‖ ―intentional[] fail[ure]‖ to
    ―make reasonable arrangements for the safety, care, and physical
    custody of the child‖ or to ―provide the child with food, shelter, or
    clothing‖).
    37For another example of this stereotype, see Bradwell v. Illinois,
    
    83 U.S. 130
    , 141 (1872) (―[T]he domestic sphere [is] that which
    properly belongs to the domain and functions of womanhood.‖).
    53
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ¶96     The court of appeals‘ reasoning in In re Adoption of Baby
    Boy Doe is a perfect illustration of the improper stereotypes that
    infect Utah Code section 78B-6-121(3)(b). There, the court held
    that an unwed father had failed to comply with Utah Code section
    78B-6-121(3)(b)(ii)‘s requirement that he ―set[] forth his plans for
    care of the child.‖38 The court found that the father had not satis-
    fied the planning requirement because he did not provide a
    ―glimpse‖ into his plan for day-to-day life with the child.39 The
    court clarified its holding in a footnote: ―[W]e believe the legisla-
    ture intended that the putative father at least specify that he has a
    source of income and identify who will care for the child while he
    is working to earn that income.‖40 This reasoning captures the ―ac-
    tual purposes underlying‖ section 78B-6-121(3): to wit, to protect
    children on the basis of entrenched, inaccurate, and offensive ste-
    reotypes about men‘s and women‘s innate qualities and proper
    roles.41 As the United States Supreme Court has repeatedly reaf-
    firmed, government policies cannot reflect ―archaic and over-
    broad generalizations about gender,‖ ―outdated misconceptions
    concerning the role of females in the home,‖ or ―outmoded no-
    tions of the relative capabilities of men and women.‖42
    ¶97     The majority‘s own phrasing is telling: ―[T]he statutory
    affidavit requirement . . . assur[es] that any biological parent who
    steps forward to assert an interest in a child has manifested a
    38   In re Adoption of Baby Boy Doe, 
    2008 UT App 449
    , ¶ 5.
    39   
    Id. 40 Id.
    ¶ 5 n.2 (emphasis added).
    41   Miss. Univ. for 
    Women, 458 U.S. at 728
    .
    42 
    J.E.B., 511 U.S. at 135
    (internal quotation marks omitted); see
    also 
    Virginia, 518 U.S. at 533
    (explaining that the state‘s justifica-
    tion ―must not rely on overbroad generalizations about the differ-
    ent talents, capacities, or preferences of males and females‖); City
    of Cleburne v. Cleburne Living Ctr., 
    473 U.S. 432
    , 441 (1985); Wein-
    berger v. Wiesenfeld, 
    420 U.S. 636
    , 643 (1975); 
    Stanton, 421 U.S. at 14
    –15 (1975); cf. Pusey v. Pusey, 
    728 P.2d 117
    , 119–20 (Utah 1986)
    (―Discontinu[ing] our support‖ for ―gender-based preferences in
    child custody cases‖ and holding that the maternal preference
    rule ―lacks validity because it is unnecessary and perpetuates
    outdated stereotypes‖).
    54
    Cite as: 
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                          NEHRING, A.C.J., dissenting
    commitment to the child‘s best interests.‖43 Of course, because
    under the majority‘s reasoning a mother‘s commitment is simply
    assumed when the child is born,44 when the majority says ―biolog-
    ical parent,‖ it can only mean ―biological father.‖ Thus, the major-
    ity holds that the affidavit requirement is justified as a way of en-
    suring that fathers ―reliably‖ indicate their ability to ―fulfill their
    parental role.‖45 But there is no rational reason to assume that a
    father‘s ability to fulfill the parental role is any less reliable than a
    mother‘s. The only way to accept such an assumption is to em-
    brace the stereotype that unwed fathers are inherently less reliable
    parents. It is only by accepting the stereotypes underlying section
    78B-6-121(3)(b) that the majority is able to justify its conclusion
    that fathers may be required to take extra steps to ensure the State
    that their desire to parent (and ability to parent) is reliable and ge-
    nuine. For this reason, the majority‘s affirmation that an unwed
    father may be required to ―reliably‖ manifest a commitment to
    ―fulfill[ing] [his] parental role‖—via sworn affidavit containing a
    written parenting plan—perpetuates the stereotyping at the heart
    of the statute.46
    43   Supra ¶ 81.
    44 
    See supra
    ¶¶ 78, 80 (―An unwed mother‘s connection to her
    child is objectively apparent. . . . Mothers express their commit-
    ment to their offspring through the voluntary decision to carry a
    child to term . . . .‖).
    45   Supra ¶ 75 (footnote omitted).
    46 The majority states that it ―emphatically‖ does not intend to
    suggest that fathers are inherently unreliable or untrustworthy.
    Supra ¶ 75 n.28. I do not doubt that my colleagues eschew such
    beliefs. But the point remains that section 78B-6-121(3)(b) exploits
    those unfair stereotypes. The majority misses the point when it
    describes the affidavit requirement as aimed at ―indicating who
    has parental rights and standing,‖ supra ¶ 75 n.28,—as I will ex-
    plain, the affidavit requirement is not aimed at identifying fathers.
    By its own plain terms, the purpose of the affidavit requirement is
    specifically to require unwed fathers to (1) swear that they ―are
    fully able and willing to have full custody,‖ (2) ―set[] forth . . .
    plans for care of the child,‖ and (3) ―agree[] to a court order of
    55
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ¶98     The government policy represented by Utah Code sec-
    tion 78B-6-121(3) reflects the invidious and outdated stereotype
    that fathers are not only generally less interested in parenting than
    mothers, but in fact possess inferior abilities and instincts in that
    realm. I would strike down section 78B-6-121(3)(b) on that basis
    and would thereby affirm ―what, by now, should be axiomatic:
    Intentional discrimination on the basis of gender by state actors
    violates the Equal Protection Clause, particularly where, as here,
    the discrimination serves to ratify and perpetuate invidious, arc-
    haic, and overbroad stereotypes‖ about the innate characteristics
    of men and women.47
    B. The Affidavit Requirement Is Not Substantially Related
    to the Proposed Government Interest
    ¶99     Although I would strike down the statute as based on an
    illegitimate underlying purpose,48 I write further to note that the
    statute is also unconstitutional because there is no ―direct, sub-
    stantial relationship between objective and means.‖49 Thus, even
    accepting the legislative purpose in its most favorable light, the
    discriminatory classification is not substantially related to that ob-
    jective.50 I disagree with the majority‘s conclusion that the affida-
    vit requirement ―can be upheld as substantially advancing‖ im-
    portant government interests for three reasons. First, instead of
    requiring the Does to satisfy their ―demanding‖ burden to justify
    the discrimination, the majority instead supplies a justification for
    them—this is impermissible under heightened scrutiny. Second,
    the discriminatory affidavit requirement is redundant and thus
    cannot be ―substantially related‖ to the goal of ensuring a father‘s
    commitment to assuming a parental role. Third and finally, the
    child support and the payment of expenses.‖ UTAH CODE § 78B-6-
    121(3)(b).
    47   
    J.E.B., 511 U.S. at 130
    –31.
    48   
    See supra
    Part I.A.
    49   Miss. Univ. for 
    Women, 458 U.S. at 725
    .
    50 See, e.g., 
    id. at 730
    (―The policy is invalid also because it fails
    the second part of the equal protection test, for the State has made
    no showing that the gender-based classification is substantially
    and directly related to its proposed . . . objective.‖).
    56
    Cite as: 
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                          NEHRING, A.C.J., dissenting
    physical fact of pregnancy and birth does not ―express‖51 any-
    thing about a woman‘s inherent attitudes, intentions, or feelings.
    In other words, biological differences, while real, do not justify
    stereotypes and generalizations about women‘s supposedly inhe-
    rent feelings toward their infants. Biological differences cannot be
    used to perpetuate the gender stereotypes inherent in the majori-
    ty‘s notion that the mother, simply because she is the mother, has
    a special ―voice‖52 that the father lacks, to decide the fate of the
    child.53
    1. The Majority Fails to Require the Does to Bear Their Burden to
    Justify the Discriminatory Classification
    ¶100 Despite the fact that under heightened scrutiny the
    ―burden of justification is demanding and it rests entirely on the
    State‖54 (or in this case, on the proponent of the legislation, the
    Does), the majority, sua sponte, supplies a justification that the
    Does did not proffer: that the physical differences between men
    and women indicate a mother‘s inherently greater ―commitment‖
    to her child at birth and therefore justify requiring a father to ―ex-
    press a parallel‖ commitment by swearing that he has the money,
    51   Supra ¶ 80.
    52   Supra ¶ 75 (state has interest in ―giving voice to those with a
    demonstrated commitment‖); ¶ 78 (―[a] mother‘s parental rights
    . . . give[] her a voice in the child‘s upbringing‖); ¶ 82 (commit-
    ment, which mother shows simply by giving birth, is an ―impor-
    tant prerequisite[] . . . to the voice that accompanies [the parental
    right] in the context of an adoption‖).
    53  As I point out above, the stereotype that women are inhe-
    rently well-suited and competent parents implicates the mir-
    ror stereotype that men are inherently less caring, less skilled, and
    less invested parents.
    54 
    Virginia, 518 U.S. at 533
    ; Miss. Univ. for 
    Women, 458 U.S. at 724
    ; Utah Safe to Learn-Safe to Worship Coalition, Inc., 
    2004 UT 32
    ,
    ¶ 24, (stating that under Utah‘s heightened scrutiny test ―the bur-
    den of proof shifts to the State to show that a challenged provision
    actually and substantially furthers a valid legislative purpose and
    is reasonably necessary to further a legitimate legislative goal‖
    (internal quotation marks omitted)).
    57
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    the desire, and the know-how necessary to raise his child.55 In so
    doing, the majority employs a rational basis standard under the
    guise of heightened scrutiny. Under rational basis review, the
    burden is on the one ―attacking‖ the law to show that there is no
    ―conceivable‖ legitimate interest that justifies the classification,
    and thus the court will uphold the law if there is any ―conceivable
    basis which might support it.‖56 Not so for heightened scrutiny.
    Under heightened scrutiny, the burden is on the proponent of the
    legislation to show that the actual—not merely conceivable—
    underlying purpose is an important one.57
    ¶101 The majority writes that the important legislative objec-
    tive underlying Utah Code section 78B-6-121(3)(b) is the ―preser-
    vation of the best interests of children,‖ which it says is pursued
    through State efforts to establish ―binding connections between
    children and parents‖—a goal which, in turn, is accomplished by
    ―giving voice to those with a demonstrated commitment to the
    best interest of the child.‖58 The majority then reasons that be-
    cause a mother, by virtue of her physical role in the birth, has au-
    tomatically demonstrated her commitment, the government‘s fa-
    thers-only affidavit requirement is justified.59 Although the Does
    listed a number of ―compelling reasons‖ that they believe justify
    the affidavit requirement, ―biological differences between men
    and women‖ was not one of them. Nor is the majority‘s biologi-
    cal-differences justification found anywhere in the Adoption Act‘s
    55   Supra ¶ 80; UTAH CODE § 78B-6-121(3)(b).
    56   Armour v. Indianapolis, 
    132 S. Ct. 2073
    , 2082 (2012).
    57   
    Virginia, 518 U.S. at 533
    , 535–36.
    58 Supra ¶ 74–75 (internal quotation marks omitted). The ma-
    jority also describes the State‘s interest as an interest in ―giving
    voice to those with a demonstrated commitment to the best inter-
    ests of the child.‖ Supra ¶ 75.
    59 Supra ¶ 78 (―By electing to carry the child to term (and not
    ending it by abortion or emergency contraception), a mother gives
    an objective indication of her commitment . . . . giving her a voice
    in the child‘s upbringing . . . .‖).
    58
    Cite as: 
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                           NEHRING, A.C.J., dissenting
    statement of legislative intent.60 The justifications that the Does
    actually proffered are worth noting. They are:
    The State has a ―compelling interest in identifying
    unwed fathers who will actually assume the parental
    role and fulfill the corresponding responsibilities.‖
    (Emphasis added.).
    ―[I]t is usually best for the child if the mother de-
    cides soon after the child‘s birth whether she will . . .
    allow the father to raise the child . . . . To aid the mother
    in making this crucial decision, it is completely un-
    derstandable that the Legislature would require an
    unwed father to make the sworn statements.‖ (Em-
    phasis added.).
    ―[I]t is commonplace for an unwed mother to be
    lulled into deciding to parent her child by false
    promises made by the father, only to find out too
    late that she alone must shoulder the entire burden
    . . . . A mother who has the courage to place her child
    for adoption should not have to wonder whether the
    adoption may later be undone by a putative father.‖
    (Emphasis added).
    ―[I]f a man is not willing to legally commit to the
    mother and her future children by marrying her
    prior to the child‘s conception, it is not unduly harsh
    to require him to file a sworn affidavit.‖
    ―The affidavit requirement serves the further pur-
    pose of ferreting out those cases were [sic] the puta-
    tive father truly does not want to be responsible for the
    child, but has been put up to filing a paternity action
    to obstruct the adoption by someone else.‖ (Empha-
    sis added).
    Given the quality of these assertions, perhaps it is unsurprising
    that the majority chose to come up with its own justification for
    the government interest underlying the discrimination in section
    78B-6-121(3)(b). However, under heightened scrutiny, the burden
    is on the proponent of the discriminatory legislation to show the
    60   UTAH CODE § 78B-6-102.
    59
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    actual purpose behind the legislation.61 The majority cannot step
    in and attempt to relieve the Does of their burden to justify Utah
    Code section 78B-6-121(3)(b)—yet, the majority does exactly this
    by supplying the ―fundamental differences‖ rationale.62 I believe
    that the reasons proffered by the Does successfully showed the
    actual purpose of the legislation—though not in the way they in-
    tended. All of the Does‘ proffered justifications are based on
    speculation, generalization, and stereotyping. The majority im-
    properly attempts to reform the justifications put forward by the
    Does by coming up with, at best, a conceivable government objec-
    tive. Under heightened scrutiny, the majority may not do this.63
    2. Utah Code Section 78B-6-121(3)(b) Is Not Substantially Related
    to an Important Government Interest Because It Is Redundant
    ¶102 Even if one ignores the fact that the majority itself comes
    up with a government rationale justifying the discrimination and
    thus impermissibly relieves the proponents of the legislation of
    their burden to do so, and even if one accepts that the govern-
    ment‘s interest is legitimate and important, the affidavit require-
    ment is nonetheless unconstitutional because it is redundant and
    unnecessary. The affidavit requirement does not provide any
    meaningful additional assurance that the father is ―commit[ted] to
    the best interests of the child‖64 beyond what is readily ascertain-
    able by the fact that he has stepped forward, identified himself,
    paid expenses (or offered to do so), and filed a legally binding
    document in a Utah district court declaring himself the father and
    expressing a corresponding willingness to assume all of the legal
    duties and responsibilities that come with that status. The other
    requirements of Utah Code section 78B-6-121(3) already show the
    unwed father‘s commitment to his baby. Under Utah Code sec-
    tion 78B-6-121(3)(a), (c), and (d), the father must file a paternity
    petition requesting custody and explicitly expressing his com-
    mitment to his child and desire to parent that child; he must file
    61   
    Virginia, 518 U.S. at 535
    –36.
    62  Supra ¶ 80. And even if this were proper, as I explain in Part
    I.B.3 infra, the majority‘s biological differences justification fails.
    63
    Virginia, 518 U.S. at 533
    ; Miss. Univ. for 
    Women, 458 U.S. at 724
    –25.
    64   Supra ¶ 75.
    60
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                          NEHRING, A.C.J., dissenting
    notice of that petition with the Department of Health; and he must
    pay or offer to pay expenses relating to the pregnancy and birth.
    These actions indicate the father‘s commitment. Further demon-
    stration of that commitment by the discriminatory means of the
    affidavit requirement does not present an ―exceedingly persua-
    sive‖ justification for the discrimination, especially when the affi-
    davit is based entirely on invidious stereotypes about men‘s inhe-
    rent parental inferiority.65
    ¶103 It is not disputed that Mr. Bolden satisfied three of the
    four requirements of section 78B-6-121(3). The one requirement
    that he did not satisfy—the affidavit requirement—does not sig-
    nificantly contribute to the government‘s important interest in
    protecting children or ensuring that caretakers are committed to
    fulfilling their parental role.
    ¶104 In Nguyen v. I.N.S., the United States Supreme Court
    upheld an immigration statute that favored mothers over fathers
    on the basis that, due to biology, at birth the father may be un-
    known while the mother is easily identifiable.66 The majority at-
    tempts to justify section 78B-6-121(3)(b) in part by alluding to this
    identity rationale.67 But the affidavit requirement has nothing
    whatsoever to do with identifying the father, as its plain terms
    and the bulk of the majority‘s reasoning make clear—it is in-
    tended to ensure the father‘s ―commitment‖ to care for the child.
    Moreover, other provisions of the statute amply ensure that the
    father is not only identified but has indicated a desire and inten-
    tion to be a parent to his child, with all of the legal, moral, ethical,
    and practical obligations that come with that.
    ¶105 The other requirements of section 78B-6-121(3) ensure
    that the father is both identified and has ―com[e] forward to par-
    65 As explained, the father must swear that he ―at least‖ has a
    plan for how he will ―financially care‖ for the child as well as how
    he will ―meet daily care-giving responsibilities.‖ In re Adoption of
    Baby Boy Doe, 
    2008 UT App 449
    , ¶ 5 & n.2; UTAH CODE § 78B-6-
    121(3)(b).
    
    66 533 U.S. at 62
    –64.
    67 
    See supra
    ¶ 79 (―[An unwed father‘s] connection to his
    offspring may be unknown or at least indeterminate.‖).
    61
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ticipate in the rearing of his child.‖68 Thus, even if the govern-
    ment interest in ensuring a father‘s commitment is accepted, the
    affidavit requirement is unnecessary because other provisions of
    the Adoption Act already accomplish that goal.
    3. Physical Differences Cannot Be Used to Justify Discrimina-
    tion Based on Stereotypes
    ¶106 The majority‘s reference to abortion is baffling.69 The
    majority attempts to justify the discrimination wrought by section
    121(3)(b) by turning to the physical differences between men and
    women, seemingly inspired by the reasoning used by the Su-
    preme Court in Nguyen v. I.N.S.70 The majority proceeds under
    the premise that a woman‘s capacity to gestate and deliver a child
    provides ―useful information‖ about her attitude toward the child
    and commitment to its interests.71 But instead of citing any legal
    authority, the majority‘s reasoning on this issue appears to stem
    from its own beliefs about ―the fundamental differences‖ between
    men and women and what mothers ―express‖ by way of gestation
    and delivery.72 Yet the majority‘s attempt to use a woman‘s phys-
    ical experience of pregnancy to stand in for and justify assump-
    Lehr v. Robertson, 
    463 U.S. 248
    , 261 (1983) (internal quotation
    68
    marks omitted).
    69 Supra ¶ 78 (―By electing to carry the child to term (and not
    ending it by abortion or emergency contraception), a mother gives
    an objective indication of her commitment to the best interests of
    her child.‖).
    
    70 533 U.S. at 64
    (reasoning that, ―[g]iven that the mother is al-
    ways present at birth, but that the father need not be,‖ a statute
    that employed a gender classification permissibly used ―gender
    specific terms‖ because it did so merely as a way of ―tak[ing] into
    account a biological difference between the parents,‖ namely, the
    mother‘s ―unique relationship to the event of birth‖(emphasis add-
    ed)); supra ¶ 78 n.34. The reasoning in Nguyen is inapplicable to
    the statute we are faced with here because there is no inherent
    biological difference between mothers‘ and fathers‘ commitment
    to their 
    children. 533 U.S. at 64
    .
    71   Supra ¶ 78 n.34.
    72   Supra ¶ 80.
    62
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                        NEHRING, A.C.J., dissenting
    tions about her ―inherent‖ parental attitudes73 is itself founded in
    stereotypes.74
    ¶107 Carrying a child to term could—but does not necessari-
    ly—indicate a mother‘s concern for the fetus‘s interest before
    birth.75 Regardless, the successful completion of pregnancy and
    delivery says nothing about a mother‘s commitment to care for
    the child after it is born. In other words, carrying a child to term
    says nothing about a mother‘s ability or willingness to have cus-
    tody of the child post-birth. It says nothing about her ―plan‖ to
    care for the child. And it does not ensure that she is able to pay
    expenses she incurs in connection with the pregnancy and birth.
    In short, the fact that a woman carries a child to term is complete-
    ly unrelated to the goals of the affidavit requirement.76 Accor-
    73 Supra ¶ 2 (―Unwed mothers acquire parental rights—and the
    accompanying right to object to an adoption—as a result of the
    objective manifestation of the commitment to the child that is
    demonstrated by their decision to carry a child to term.‖); ¶ 78
    (―By electing to carry the child to term (and not ending it by abor-
    tion or emergency contraception), a mother gives an objective in-
    dication of her commitment to the best interests of her child‖);
    ¶ 80 (―[F]undamental differences between unwed mothers and
    fathers explain the basis for our statute‘s requirement of an affi-
    davit for only the latter.‖(footnote omitted)); ¶ 78 n.34 (―[w]e are
    unwilling to denigrate the level of commitment inherent in the
    decision to carry a child to term, or to gainsay the difficulty of
    pregnancy‖); 
    id. (―[a] mother‘s
    decision to bring a child into the
    world . . . provides some useful information‖).
    74 Cf. 
    Nguyen, 533 U.S. at 68
    (explaining that because it is ―un-
    deniable‖ that the unwed mother and father‘s circumstances are
    different in terms of their need to be present at the birth and thus
    different in terms of the state‘s ability to identify them, this dis-
    tinction ―does not result from some stereotype, defined as a frame
    of mind resulting from irrational or uncritical analysis‖).
    75It is not a difficult thought experiment to imagine a pregnant
    woman who lacks concern for her unborn child‘s best interest, or
    who, for example, is unaware that she is pregnant.
    76 See UTAH CODE § 78B-6-121(3)(b) (requiring unwed father to
    file an affidavit stating that he is ―fully able and willing to have
    63
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    dingly, I would hold that the gender discrimination effected by
    the affidavit requirement is not reasonably related to the State‘s
    objective, however that objective is framed.
    ¶108 The affidavit requirement not only requires the father to
    declare that he is ―able and willing‖ to take full custody of his
    child, but also forces him to make a written ―plan‖ for the child‘s
    care.77 These requirements are future-oriented. I fail to see how
    the mother‘s decision not to get an abortion indicates anything
    about her ability or willingness to care for her child after it is born.
    Moreover, I vehemently disagree that a woman‘s so-called ―vo-
    luntary decision‖ to carry the baby to term ―express[es]‖ anything
    about her plan for the child‘s care or her commitment to the
    child‘s best interest after it is born.78 For one thing, obtaining an
    abortion is painful, costly, time-consuming, morally and religious-
    ly fraught, and, for many women, nearly impossible or actually
    impossible due to age,79 religion, geography, employment de-
    mands, or cost. For another, the fact of being pregnant and carry-
    ing a baby to term is a physical reality that cannot rationally be
    used to surmise anything about the woman‘s internal feelings and
    intentions. In short, the majority‘s abortion rationale is not only
    based on impermissible gender stereotypes, but even taken on its
    own terms, it is absurd and illogical.
    full custody,‖ ―setting forth his plans for care of the child,‖ and
    ―agreeing to a court order of child support and the payment of
    expenses incurred in connection with the mother‘s pregnancy and
    the child‘s birth‖).
    77   
    Id. 78 The
    majority attempts to conflate a woman‘s pre-birth action
    of not aborting the fetus with a post-birth commitment to the
    child‘s care. This defies logic. Indeed, one does not need to look
    far to find examples of women who chose not to have an abortion
    but who nevertheless failed to provide the necessary care for their
    children. Regrettably, our juvenile courts are full of cases of ma-
    ternal abuse and neglect.
    79See UTAH CODE § 76-7-304.5(2)(a)–(b), (5) (prohibiting minors
    from obtaining abortions absent parental consent or judicial ap-
    proval).
    64
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                        NEHRING, A.C.J., dissenting
    ¶109 While it is of course true that a woman is inherently dif-
    ferent from a man in that she can become pregnant and theoreti-
    cally undergo an abortion, the majority improperly uses this dif-
    ference to justify a statute that is based not on biological difference
    but rather on invidious stereotypes about the parenting attitudes
    and capabilities of men and women.80
    ¶110 The majority‘s assumptions about the difference in
    ―commitment‖ between an unmarried mother and an unmarried
    father are not actually based on the physical reality of pregnancy
    and birth. This is because a difference in commitment does not
    stem from a biological reality in the way that parental identity
    under Nguyen does.81 In other words, it is a biological reality that
    a father need not be present at birth. It is not a biological reality
    that a woman is committed to the best interest of her child.
    ¶111 The majority uses a woman‘s physical characteristics to
    make generalizations about her feelings and assumes, based on
    her gender alone, that she has a greater commitment to the best
    interest of her child.82 This is a classic example of an ―overbroad
    80 
    Virginia, 518 U.S. at 533
    (stating that the State‘s justification
    for a discriminatory law ―must not rely on overbroad generaliza-
    tions about the different talents, capacities, or preferences of males
    and females‖); Caban v. Mohammed, 
    441 U.S. 380
    , 389 (1979)
    (―[M]aternal and paternal roles are not invariably different in im-
    portance . . . .‖).
    
    81 533 U.S. at 62
    –63 (―In the case of the father, the uncontesta-
    ble fact is that he need not be present at the birth. If he is present,
    furthermore, that circumstance is not incontrovertible proof of fa-
    therhood.‖).
    82  The majority claims that it merely uses a woman‘s biology as
    a ―rough parallel‖ to the affidavit requirement. Supra ¶ 80 n.36;
    see also supra ¶ 83 n.38 (―[W]e find the rough comparability between
    the mother‘s expression of commitment and planning and that
    required of the father to be sufficient.‖ (emphasis added)). But
    simply adding the word ―rough‖ does not overcome the defects in
    the majority‘s reasoning—today the court holds that a woman‘s
    mere physical biology is ―parallel‖ to a father‘s written, sworn
    statement that, among other things, he has a detailed plan to raise
    his child.
    65
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    generalization[]‖ about gender.83 Though I do not doubt my col-
    leagues‘ good intentions, the majority upholds a statute that is
    founded in sex stereotypes—which are ―fixed notions‖ the differ-
    ent genders are better or worse suited to certain tasks, such as
    nurturing.84 Such stereotypes should have no place in our law,
    our courts, or our public policy. The court today upholds a dis-
    criminatory statute on the basis of so-called innate differences be-
    tween men and women. But this reasoning ties it to a long line of
    overruled laws and cases. In other words, unfair sex discrimina-
    tion has long been perpetuated by arguments that sound in biolo-
    gy.85 True, cases like Bradwell present particularly egregious ex-
    amples of gender discrimination, but the reliance on ―nature‖ in
    such cases finds echoes in today‘s decision. The State may not use
    biology to justify ―classifying unwed fathers as being invariably
    less qualified and entitled than mothers to exercise a concerned
    83 
    Caban, 441 U.S. at 394
    (internal quotation marks omitted); see
    also 
    Virginia, 518 U.S. at 541
    (cautioning courts to take a ―hard
    look‖ at justifications for gender discrimination that rely on ―ge-
    neralizations or tendencies‖ or are ―based on fixed notions con-
    cerning the roles and abilities of males and females‖).
    84 
    Virginia, 518 U.S. at 541
    ; see also 
    id. at 533
    (describing gender
    stereotypes as “overbroad generalizations about the different tal-
    ents, capacities, or preferences of males and females‖).
    85 See, e.g., Bradwell v. Illinois, 
    83 U.S. 130
    , 141 (1872) (―[T]he civ-
    il law, as well as nature herself, has always recognized a wide dif-
    ference in the respective spheres and destinies of man and wom-
    an. Man is, or should be, woman‘s protector and defender. The
    natural and proper timidity and delicacy which belongs to the
    female sex evidently unfits it for many of the occupations of civil
    life. The constitution of the family organization, which is founded
    in the divine ordinance, as well as in the nature of things, indi-
    cates the domestic sphere as that which properly belongs to the
    domain and functions of womanhood.‖); see generally, 
    Virginia, 518 U.S. at 542
    –545 (explaining historical attitudes about the dif-
    ferent roles of men and women); 
    Frontiero, 411 U.S. at 684
    –685
    (―There can be no doubt that our Nation has had a long and un-
    fortunate history of sex discrimination. . . . [O]ur statute books
    gradually became laden with gross, stereotyped distinctions be-
    tween the sexes . . . .‖).
    66
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                         NEHRING, A.C.J., dissenting
    judgment as to the fate of their children.‖86 For this reason I dis-
    sent and would strike down Utah Code section 78B-6-121(3)(b).
    ¶112 I also take issue with the majority‘s assertion that we
    simply ―disagree about the wisdom of the legislature‘s policy de-
    cision to add a requirement of an affidavit.‖87 My disagreement
    with the majority is about the constitutionality of the statute, not
    the legislature‘s wisdom. The majority today upholds a statute
    that discriminates on the basis of gender. With all due respect,
    and as explained herein, the majority‘s decision is deeply flawed.
    The majority perpetuates the sexual stereotypes embodied in Utah
    Code section 78B-6-121(3)(b) and its decision today has allowed
    unfair discrimination to remain enshrined in the laws of our State.
    I would hold that because Utah Code section 7B-6-121(3)(b) treats
    unmarried men and unmarried women differently without justifi-
    cation, it unconstitutionally discriminates based on sex.
    II. THE AFFIDAVIT REQUIREMENT VIOLATED
    MR. BOLDEN‘S RIGHT TO THE PROTECTION OF
    PROCEDURAL AND SUBSTANTIVE DUE PROCESS
    ¶113 Mr. Bolden‘s challenge to the constitutionality of the af-
    fidavit requirement is a matter of first impression in this State.88
    86 
    Caban, 441 U.S. at 394
    ; see also 
    Frontiero, 411 U.S. at 686
    –87
    (―[S]tatutory distinctions between the sexes often have the effect
    of invidiously relegating the entire class . . . to inferior legal status
    without regard to the actual capabilities of its individual mem-
    bers.‖).
    87 Supra ¶ 80 n.36; see also supra ¶ 79 n.35 (―It is a fair question
    to ask whether the requirements of Utah law . . . go further than
    necessary. But that is at heart a policy question . . . .‖).
    88 Although Utah appellate courts have been presented with
    cases where a putative father complied with all of the require-
    ments except the affidavit requirement, each time, the constitutio-
    nality of the affidavit requirement has evaded review. See Don-
    juan v. McDermott, 
    2011 UT 72
    , ¶ 22, 
    266 P.3d 839
    (putative father
    failed to preserve constitutional argument); E.G. v. C.C.D. (In re
    Adoption of Baby Girl), 
    2010 UT App 114
    , ¶ 21 n.2, 
    233 P.3d 517
    (constitutional argument not raised or preserved); N.T. v. Doe (In
    re Adoption of Baby Boy Doe), 
    2008 UT App 449
    , ¶¶ 4–7, 
    199 P.3d 368
    (constitutional argument not raised). In his dissent in In re
    67
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    Mr. Bolden concedes that he did not comply with the affidavit re-
    quirement of Utah Code section 78B-6-121(3). He challenges that
    requirement as a violation of due process—a challenge that in-
    cludes both the procedural and substantive branches of that con-
    stitutional doctrine.
    A. Procedural Due Process
    ¶114 The majority baldly states that Mr. Bolden‘s due process
    claim ―sounds only in substantive due process‖89 I respectfully
    disagree. Mr. Bolden has squarely challenged the statute under
    the Due Process Clause, which contains both procedural and subs-
    tantive elements. The majority itself claims that the ―right to due
    process is principally about process—procedure, not substance.‖90
    However, despite this view, and despite the majority‘s professed
    suspicion of the very notion of substantive due process,91 the ma-
    jority is nevertheless unwilling to evaluate Mr. Bolden‘s claim
    through the lens of fair process.
    ¶115 ―A due process right of access to the courts exists when
    fundamental interests are present and the State has exclusive con-
    trol over the adjustment of [the] legal relationships involved.‖92
    The United States Supreme Court has held that states may not ir-
    rationally deny people access to the courts, particularly where, as
    Adoption of Baby Girl, Judge Thorne noted that the requirements of
    the current statute had not ―been expressly approved‖ by this
    court. 
    2010 UT App 114
    , ¶ 39.
    89   Supra ¶ 28.
    90   Supra ¶ 29.
    91 
    See supra
    ¶ 30 (stating that ―the Due Process Clause is not a
    license for the judicial fabrication of rights that judges might pre-
    fer, on reflection, to have been enshrined in the constitution‖ and
    citing Regents of University of Michigan v. Ewing, 
    474 U.S. 214
    , 225–
    26 (1985), for the proposition that ―[a]lthough the Court regularly
    proceeds on the assumption that the Due Process Clause has more
    than a procedural dimension, we must always bear in mind that
    the substantive content of the Clause is suggested neither by its
    language nor by preconstitutional history‖ (internal quotation
    marks omitted)).
    92   Logan v. Zimmerman Brush Co., 
    455 U.S. 422
    , 430 n.5 (1982).
    68
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                              NEHRING, A.C.J., dissenting
    here, ―resort to the judicial process‖ is, ―in a realistic sense,‖ invo-
    luntary.93 In Logan v. Zimmerman Brush Co., the Court explained
    that ―[t]he State may erect reasonable procedural requirements for
    triggering the right to an adjudication, be they statutes of limita-
    tions, or, in an appropriate case, filing fees,‖ but nevertheless
    ―what the Fourteenth Amendment does require, however, is an
    opportunity . . . granted at a meaningful time and in a meaningful
    manner, for [a] hearing appropriate to the nature of the case.‖94
    This is because ―courts, even in aid of their own valid processes,‖
    are limited by the Due Process Clause in their ability to ―dismiss
    an action without affording a party the opportunity for a hearing
    on the merits of his cause.‖95 ―[H]aving made access to the courts
    an entitlement or a necessity, the State may not deprive someone
    of that access unless the balance of . . . interests favors the gov-
    ernment scheme.‖96 Moreover, as the Court explicitly held in
    M.L.B. v. S.L.J., ―decrees forever terminating parental rights‖ fall
    in the ―category of cases in which the State may not bolt the door
    to equal justice.‖97
    ¶116 While it is true that Mr. Bolden frames his argument in
    terms of substantive due process, he has squarely challenged the
    statute under the Due Process Clause, and this court has said that
    93  Boddie v. Connecticut, 
    401 U.S. 371
    , 376–77 (1971) (holding
    that it was unconstitutional under the due process clause to deny
    indigent individuals access to the courts because of their inability
    to pay a filing fee); M.L.B. v. S.L.J., 
    519 U.S. 102
    , 107 (1996) (declar-
    ing unconstitutional a state requirement that parents pay a fee for
    preparation of the trial record in order to appeal a termination of
    custody); 
    Logan, 455 U.S. at 437
    .
    
    94 455 U.S. at 437
    (alterations in original) (citations omitted) (in-
    ternal quotation marks omitted); see also 
    id. at 430
    n.5; 
    M.L.B, 519 U.S. at 120
    ; Wilson v. Iseminger, 
    185 U.S. 55
    , 62–63 (1902) (―In all
    such cases the question is one of reasonableness, and we have,
    therefore, only to consider whether the time allowed in this sta-
    tute is, under all the circumstances, reasonable.‖); Burford v. Ten-
    nessee, 
    845 S.W.2d 204
    , 208 (Tenn. 1992).
    95   
    Logan, 425 U.S. at 429
    .
    96   
    Id. at 430
    n.5.
    
    97 519 U.S. at 124
    (internal quotation marks omitted).
    69
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    it will be ―unwilling to disregard controlling authority that bears
    upon the ultimate resolution of a case solely because the parties
    did not raise it below.‖98 The majority claims that no authority
    exists that ―yields a judicial prerogative to second-guess the wis-
    dom of state law standards . . . under the guise of procedural due
    process.‖99 But on the contrary, if the legislature has violated the
    constitution, such ―second-guessing‖ is this court‘s raison d‘être.
    Moreover, evaluating a properly presented constitutional chal-
    lenge to a given law is in no way an exercise of ―free-wheeling au-
    thority‖100—it is a proper exercise of our actual authority.101
    98   Patterson v. Patterson, 
    2011 UT 68
    , ¶ 18, 
    266 P.3d 828
    .
    99   Supra ¶ 23 n.9.
    100   Supra ¶ 23 n.9.
    101 See, e.g., 
    Burford, 845 S.W.2d at 208
    (striking down a statute
    of limitations as depriving plaintiff of a ―reasonable opportunity‖
    to have his claim heard and holding that ―before a state may ter-
    minate a claim for failure to comply with procedural requirements
    . . . due process requires that potential litigants be provided an
    opportunity for the presentation of claims at a meaningful time
    and in a meaningful manner‖); see also 
    Logan, 455 U.S. at 426
    , 428;
    Ky. Union Co. v. Kentucky, 
    219 U.S. 140
    , 156–57 (1911) (―A time not
    unreasonably short for the beginning of actions may be fixed by the
    legislature, having in view particular conditions without violating
    the due process clause.‖(emphasis added)); 
    Wilson, 185 U.S. at 62
    (―[A]ll statutes of limitation must proceed on the idea that the par-
    ty has full opportunity afforded him to try his right in the courts.
    A statute could not bar the existing rights of claimants without
    affording this opportunity; if it should attempt to do so, it would
    not be a statute of limitations, but an unlawful attempt to extin-
    guish rights arbitrarily, whatever might be the purport of its pro-
    visions.‖); Terry v. Anderson, 
    95 U.S. 628
    , 632–33 (1877) (―[S]tatutes
    of limitation affecting existing rights are not unconstitutional, if a
    reasonable time is given for the commencement of an action be-
    fore the bar takes effect.‖); Fields v. Legacy Health Sys., 
    413 F.3d 943
    ,
    956–57 (9th Cir. 2005) (analyzing a procedural due process chal-
    lenge to a statute of limitations and rejecting it because the statute
    was not ―arbitrary [or] irrational‖ and noting that ―[c]ourts will
    generally uphold a statute of limitations against a due process
    challenge as long as the plaintiff is accorded a reasonable time,
    70
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                          NEHRING, A.C.J., dissenting
    When presented with a constitutional challenge, it is our job to
    evaluate whether the legislature has overstepped its constitutional
    bounds.102 That is what Mr. Bolden has asked us to do here, and
    the majority abrogates its judicial duty by refusing to fully ad-
    dress his constitutional claim.
    ¶117 Procedural due process issues arise when an individual
    is ―claiming a right to a fair process in connection with [his] suffer-
    ing a deprivation of life, liberty, or property.‖103 The fundamen-
    tal requirement of due process is the opportunity to be heard ―at a
    meaningful time and in a meaningful manner.‖104 It is well estab-
    lished that there is a ―requirement of fair procedure before men
    are denied or deprived of rights.‖105 As Justice Frankfurter elo-
    under all the circumstances, to bring suit before the bar takes ef-
    fect‖ (emphasis added)); People v. Germany, 
    674 P.2d 345
    , 350, 353
    (Colo. 1983) (holding that statute creating an absolute time bar to
    collateral attacks by defendants on criminal convictions violated
    due process of law under the United States and Colorado Consti-
    tutions because it was not reasonable and did not provide a
    ―meaningful opportunity‖ for the litigant to be heard).
    102Marbury v. Madison, 
    5 U.S. 137
    , 177 (1803) (―It is emphatical-
    ly the province and duty of the judicial department to say what
    the law is.‖).
    103 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND
    POLICIES 579 (3d ed. 2006); see also Mathews v. Eldridge, 
    424 U.S. 319
    , 332 (1976) (―Procedural due process imposes constraints on
    governmental decisions which deprive individuals of ‗liberty‘ or
    ‗property‘ interests . . . .‖); Mullane v. Cent. Hanover Bank & Trust
    Co., 
    339 U.S. 306
    , 313 (1950) (―Many controversies have raged
    about the cryptic and abstract words of the Due Process Clause
    but there can be no doubt that at a minimum they require that de-
    privation of life, liberty, or property by adjudication be proceeded
    by notice and opportunity for hearing appropriate to the nature of
    the case.‖).
    104   
    Mathews, 424 U.S. at 333
    (internal quotation marks omitted).
    105 Joint Anti-Fascist Refugee Comm. v. McGrath, 
    341 U.S. 123
    , 165
    (1951) (Frankfurter, J., concurring); see also Lassiter v. Dep’t of Soc.
    Servs., 
    452 U.S. 18
    , 33 (1981) (―In its Fourteenth Amendment, our
    Constitution imposes on the States the standards necessary to en-
    71
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    quently stated in 1951, ―[t]he heart of the matter is that democracy
    implies respect for the elementary rights of men, however suspect
    or unworthy; a democratic government must therefore practice
    fairness.‖106
    ¶118 Utah has recognized the importance of due process since
    its founding.107 Utah‘s Due Process Clause provides a guarantee
    ―that a party shall have his day in court.‖108 Due process of law
    ―hears before it condemns, proceeds upon inquiry, and renders
    judgment only after trial.‖109
    ¶119 Due process is ―flexible,‖ and requires analysis of the
    ―given situation‖ in order to ensure that individuals facing depri-
    vation are afforded procedures that comport with fundamental
    fairness.110 ―Applying the Due Process Clause is therefore an un-
    sure that judicial proceedings are fundamentally fair.‖); Nelson v.
    City of Orem, 
    2013 UT 53
    , ¶ 28, 
    309 P.3d 237
    ; In re Worthen, 
    926 P.2d 853
    , 877 (Utah 1996) (―[T]he demands of due process rest on
    the concept of basic fairness of procedure and demand a proce-
    dure appropriate to the case and just to the parties involved.‖ (in-
    ternal quotation marks omitted)).
    106 
    McGrath, 341 U.S. at 170
    –71 (Frankfurter, J., concurring)
    (―The validity and moral authority of a conclusion largely depend
    on the mode by which it was reached.‖).
    107  See UTAH CONST. art. I, § 7 (―No person shall be deprived of
    life, liberty or property, without due process of law.‖); see also
    PROCEEDINGS & DEBATES OF THE CONVENTION ASSEMBLED TO ADOPT
    A     CONSTITUTION FOR THE STATE OF UTAH (1895),
    http://le.utah.gov/documents/conconv/utconstconv.htm.
    108   Christiansen v. Harris, 
    163 P.2d 314
    , 316 (Utah 1945).
    109 
    Id. at 316–317
    (internal quotation marks omitted) (explain-
    ing that due process requires certain ―steps essential‖ before the
    state may ―deprive a person of life, or liberty‖).
    110 Labrum v. Utah State Bd. of Pardons, 
    870 P.2d 902
    , 909, 911
    (Utah 1993); 
    Worthen, 926 P.2d at 876
    ; accord 
    Mathews, 424 U.S. at 334
    ; see also Thurnwald v. A.E., 
    2007 UT 38
    , ¶ 38, 
    163 P.3d 623
    (not-
    ing that to deprive an unwed father and his child of the possible
    benefits of their relationship simply because the unwed father
    72
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                           NEHRING, A.C.J., dissenting
    certain enterprise‖ in which the court ―must discover what ‗fun-
    damental fairness‘ consists of in a particular situation.‖111 But the
    overarching principle is that due process ―expresses the require-
    ment of fundamental fairness.‖112
    ¶120 When deciding whether a certain procedure has been
    fundamentally fair in accordance with the constitutional guaran-
    tee of due process, we begin by determining what private interest
    has been ―affected by governmental action.‖113 This is because
    ―[t]he extent to which procedural due process must be afforded
    the recipient is influenced by the extent to which he may be ‗con-
    demned to suffer grievous loss.‘‖114 Indeed, the Supreme Court
    has long held that ―the degree of potential deprivation that may
    be created by a particular decision is a factor to be considered in
    assessing the validity of any . . . decisionmaking process.‖115
    ¶121 According to the majority, Mr. Bolden could not raise a
    procedural due process claim where he failed to file the affidavit
    as a ―result of his own procedural misstep.‖116 But Mr. Bolden
    challenges the constitutionality of that very procedure. To dis-
    miss Mr. Bolden‘s constitutional challenge to section 78B-6-
    121(3)(b) by reasoning that Mr. Bolden should have complied
    with the statute he challenges is an excellent example of circular
    reasoning.117 I agree with the majority that the State ―accords due
    process when it terminates a claim for failure to comply with a
    failed to file a notice on time ―[flies] in the face of fundamental fair-
    ness and due process‖(alteration in original) (emphasis added)).
    111   
    Lassiter, 452 U.S. at 24
    –25.
    112   
    Id. at 24
    (internal quotation marks omitted).
    Goldberg v. Kelly, 
    397 U.S. 254
    , 263 (1970) (internal quotation
    113
    marks omitted).
    114   
    Id. at 262–63
    (citation omitted).
    115   
    Mathews, 424 U.S. at 341
    .
    116 Supra ¶¶ 6, 28 n.12 (claiming that Mr. Bolden is ―in . . . no
    position to complain that his own failure amounted to a violation
    of procedural due process‖).
    117   Supra ¶¶ 6, 28 n.12.
    73
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    reasonable procedural or evidentiary rule.‖118 But the majority
    fails to recognize that the given procedural requirement must be
    reasonable, and the affidavit requirement is not. Due process is not
    necessarily satisfied because a person receives some variety of no-
    tice and some opportunity, however minimal, and however arbi-
    trary, for a hearing. Instead, due process ―calls for such proce-
    dural protections as the particular situation demands.‖119 This
    court has held that the essential requirements of due process in-
    clude ―an inquiry into the merits of the question‖ and a ―fair op-
    portunity to submit evidence‖ at one‘s hearing.120 Mr. Bolden re-
    ceived neither.
    ¶122 The loss of one‘s children is rightly viewed as one of the
    most ―grievous‖121 losses a person can suffer. It is ―plain beyond
    the need for multiple citation that a natural parent‘s desire for and
    right to the companionship, care, custody, and management of his
    or her children is an interest far more precious than any property
    right.‖122 Despite the majority‘s dismissive stance toward the
    right of an unmarried biological father to raise his child, 123 a de-
    sire to parent and a fundamental interest in parenting one‘s child
    does not turn on whether a person is male or female, unmarried
    or wed.
    ¶123 The United States Supreme Court held in Lehr v. Robert-
    son that an unwed father who ―demonstrates a full commitment to
    the responsibilities of parenthood by ‗com[ing] forward to partic-
    ipate in the rearing of his child‘‖ acquires ―substantial protection
    118   Supra ¶ 28 n.12 (citing 
    Logan, 455 U.S. at 437
    ).
    119   
    Mathews, 424 U.S. at 334
    (internal quotation marks omitted).
    120   
    Christiansen, 163 P.2d at 317
    .
    121   Santosky v. Kramer, 
    455 U.S. 745
    , 758 (1982).
    122   
    Id. at 758–59
    (internal quotation marks omitted).
    123 
    See supra
    ¶ 55 n.20 (―A general tradition of respect for pa-
    rental rights comes nowhere close to establishing a fundamental
    right for unwed fathers to unfettered control of their offspring.‖);
    ¶ 60 (dismissing Mr. Bolden‘s ―insist[ence]‖ that his interest is
    ―more than a mere biological connection‖ as having ―no prin-
    cipled basis‖).
    74
    Cite as: 
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                              NEHRING, A.C.J., dissenting
    under the due process clause.‖124 Because unwed fathers are ―not
    automatically identified by virtue of their role in the process of
    birth,‖125 it is true that ―the mere existence of a biological link‖
    alone does not merit full constitutional protection.126 Yet, an un-
    wed father who has ―merely‖ a biological link to a given infant
    still benefits from constitutional protection. Even if a father has
    failed to or has not yet demonstrated a ―full commitment to the
    responsibilities of parenthood,‖ under the Due Process Clause, a
    state must still adequately protect an unwed father‘s opportunity to
    form a parental relationship.127 Of course, in Lehr, the child in
    question was over two years old and the father had done nothing
    to develop a relationship with her.128 Thus, the question of
    whether the father had made a commitment to parent her was
    much easier to answer in the negative. The situation is quite dif-
    ferent where a days-old infant is concerned, as in this case. When
    a child has just been born, no one has a substantial ―relationship‖
    with that child yet. Here, Mr. Bolden tried to ensure he would
    have a relationship with his infant daughter both before she was
    born and in the days immediately after her birth. Unlike in Lehr
    and Quilloin v. Walcott, this is a case in which the unwed father
    has at all times sought custody of his child. 129 Accordingly, our
    124 
    463 U.S. 248
    , 261 (1983) (alteration in original) (citation
    omitted). I would hold that Mr. Bolden demonstrated a full
    commitment to his parental responsibilities and was thus entitled
    to substantive due process protection, see infra Part II.B, but even
    if he did not, Mr. Bolden‘s procedural due process rights as an
    unwed father were also violated.
    125   Wells v. Children’s Aid Soc’y of Utah, 
    681 P.2d 199
    , 203 (Utah
    1984).
    126
    Lehr, 463 U.S. at 261
    . This court has characterized the un-
    wed father‘s right to parent his child as ―provisional.‖ R.C.S. v.
    A.O.L. (In re Baby Girl T.), 
    2012 UT 78
    , ¶ 11, 
    298 P.3d 1251
    .
    127   
    Lehr, 463 U.S. at 261
    –63.
    128   
    Id. at 24
    9–50.
    
    129434 U.S. 246
    , 255 (1978) (holding that natural father‘s rights
    under the Due Process Clause were not violated by application of
    the ―best interests of the child‖ standard where natural father had
    75
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    analysis of the fundamental fairness of the procedures afforded
    Mr. Bolden should be different.
    ¶124 The procedures in place in Utah Code section 78B-6-
    121(3) determine whether an unwed father has successfully as-
    serted his ―inchoate‖ parental right.130 Utah Code section 78B-6-
    121(3) thus critically affects that father‘s ―protected liberty interest
    in the opportunity to preserve a relationship with his child.‖131
    Under our caselaw, while unwed fathers may not have a ―full-
    blown‖ parental interest in their newborn children, they neverthe-
    less have a fundamental interest in their ability and opportunity
    to assert full parental status.132
    ¶125 In this case, Mr. Bolden sought to assert his opportunity
    interest in raising his biological child. This right is a remarkably
    important one, and is inextricably tied with the fundamental right
    to rear one‘s own children. The right to a relationship with one‘s
    children is one of the most precious rights known to humankind
    and thus individuals facing the loss of this right deserve ample,
    vigorous procedural protection,133 not a statutory labyrinth.
    Mr. Bolden was deprived of a relationship with his biological
    child based on a technicality—he received bad advice from his
    not petitioned for ―legitimation‖ at any time in an 11-year period
    between the child‘s birth and the filing of an adoption petition).
    130   In re Baby Girl T., 
    2012 UT 78
    , ¶ 18.
    131   
    Id. ¶ 19
    n.6; accord Thurnwald, 
    2007 UT 38
    , ¶ 28.
    132  In re Baby Girl T., 
    2012 UT 78
    , ¶ 18; Thurnwald, 
    2007 UT 38
    ,
    ¶ 28 (―[A]n unwed father‘s opportunity interest in developing a
    relationship with his newborn [is] a ‗provisional right‘ that is itself
    protected by the due process clause of the Utah Constitution.‖);
    see also 
    Lehr, 463 U.S. at 262
    ; 
    Santosky, 455 U.S. at 759
    (―A parent‘s
    interest in the accuracy and justice of the decision to terminate his
    or her parental status‖ is a ―commanding one.‖).
    133  See Stanley v. Illinois, 
    405 U.S. 645
    , 651 (1972) (―It is plain
    that the interest of a parent in the companionship, care, custody,
    and management of his or her children ‗come(s) to this court
    with a momentum for respect lacking when appeal is made
    to liberties which derive merely from shifting economic arrange-
    ments.‖ (alteration in original) (citation omitted)).
    76
    Cite as: 
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                           NEHRING, A.C.J., dissenting
    lawyer and failed to submit an affidavit, though he had already
    submitted numerous other documents and complied with our un-
    iquely complex adoption statute in every other way.
    ¶126 The majority dismisses Mr. Bolden‘s due process con-
    cerns as posing the risk of leading this court to ―a series of line-
    drawing problems.‖134 Even if this were true, such a rationale
    cannot justify perpetuating a statute that is fundamentally unfair
    as applied to Mr. Bolden.135 By refusing to robustly address Mr.
    Bolden‘s constitutional challenge, the majority upholds a statutory
    regime that was created to reduce unmarried biological fathers‘
    rights to the barest minimums.136 The majority simply dismisses
    Mr. Bolden‘s procedural due process claim. It is not clear at what
    point, if any, the majority would agree that a statute‘s strict re-
    quirements become so onerous and arbitrary—so fundamentally
    unfair—that they violate procedural due process. I believe that
    the affidavit requirement, as applied to Mr. Bolden, is over the
    line and deprived him of fair process.
    ¶127 Because an unmarried father‘s liberty interest in assert-
    ing his parental status is so strong, I would hold that, as applied
    to Mr. Bolden, the affidavit requirement was fundamentally un-
    fair.137 The application of the affidavit requirement here deprived
    134   Supra ¶ 60.
    135 See 
    Stanley, 405 U.S. at 656
    –57 (―Procedure by presumption
    is always cheaper and easier than individualized determination.
    But when, as here, the procedure forecloses the determinative is-
    sues[,] . . . when it explicitly disdains present realities in deference
    to past formalities, it needlessly risks running roughshod over the
    important interests of both parent and child.‖).
    136 A statutory regime, indeed, that gleefully set out to ―test the
    bounds of Constitutional protection for . . . biological fathers.‖
    Brent J. Clayton, Note, A Day Late & A Dollar Short: Should Utah’s
    Unmarried Dads Get One More Chance to Claim Their Newborns?,
    10 J.L. & FAM. STUD. 249, 260 (2007) (quoting sponsoring Senator
    Charles H. Stewart‘s 1994 drafting instructions for the Utah Adop-
    tion Act). It has certainly succeeded on that account.
    137
    Lassiter, 452 U.S. at 24
    –25 (―[T]he phrase [due process] ex-
    presses the requirement of ‗fundamental fairness,‘ a requirement
    whose meaning can be as opaque as its importance is lofty. Ap-
    77
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    Mr. Bolden, who complied with section 78B-6-121(3) in every oth-
    er way, of his right to a meaningful hearing138 before he lost the
    opportunity to be a father to his son. It was thus fundamentally
    unfair, and under these circumstances I cannot agree that
    Mr. Bolden received the protection of the United States and Utah
    Constitutions‘ guarantee of due process of the law.
    ¶128 Accordingly, I would hold that Mr. Bolden was denied
    adequate procedural due process and that his consent to the adop-
    tion was required.
    B. Substantive Due Process
    ¶129 Mr. Bolden claims that his interest in parenting his bio-
    logical child is a fundamental right and as such deserves protec-
    tion under the Due Process Clause. The majority mischaracterizes
    Mr. Bolden‘s claim, stating that he has asserted the ―right to per-
    fect his parental rights on something less than the grounds pre-
    scribed by the legislature‖ and ―a perfected right in unmarried
    biological fathers arising upon their mere filing of a paternity
    suit.‖139 This is not the right that Mr. Bolden has asserted. This
    misstatement cannot be traced to anything contained in
    Mr. Bolden‘s briefs or oral argument. Instead, Mr. Bolden expli-
    citly stated that the right he is asserting for protection under the
    Due Process Clause is ―an unwed father‘s provisional right to
    raise his newborn.‖ And we have clearly announced the proper
    framework for such a challenge: ―the proponent of legislation in-
    fringing parental rights must show (1) a compelling state interest
    plying the Due Process Clause is therefore an uncertain enterprise
    which must discover what ‗fundamental fairness‘ consists of in a
    particular situation by first considering any relevant precedents
    and then by assessing the several interests that are at stake.‖).
    138 
    Worthen, 926 P.2d at 876
    (―[A]n opportunity to be heard in a
    meaningful way [is] at the very heart of procedural fairness.‖ (in-
    ternal quotation marks omitted)); see also 
    id. at 876
    & n.14 (―em-
    phasiz[ing]‖ that the opportunity to be heard in a meaningful way
    is a ―minimum requirement[]‖ and noting that due process ―calls
    for the procedural protections that the given situation demands‖
    (internal quotation marks omitted)).
    139   Supra ¶¶ 59, 61.
    78
    Cite as: 
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                           NEHRING, A.C.J., dissenting
    in the result to be achieved and (2) that the means adopted are
    narrowly tailored to achieve the basic statutory purpose.‖140
    ¶130 The majority dismisses Mr. Bolden‘s clear invocation of
    his parental right as ―fram[ed] at too-high a level of generality‖
    and, even more strangely, claims that his assertion of a so-called
    ―generic interest in parenthood‖ is not ―precise‖ enough.141 This
    position cannot be squared with Supreme Court precedent, which
    has long recognized that the private interest of a father in the cus-
    tody of his children is both ―cognizable and substantial.‖142
    Mr. Bolden is not required to claim any more precise an interest
    than the fundamental, if provisional, right to raise his child, and
    the majority‘s requirement that he provide something more ap-
    pears to avoid the issue. First, the court claims that Mr. Bolden
    did not and cannot raise a procedural due process challenge, but
    then it refuses to acknowledge that he has a protected substantive
    due process right. This rhetorical ploy gives the impression that
    the court is unmotivated to engage in a robust treatment of the
    issues.
    ¶131 Contrary to the plurality‘s143 assertion that Mr. Bolden‘s
    substantive due process claim rests on an ―innovation[] undiscip-
    lined by any but abstract formula[],‖144 Mr. Bolden‘s claim rests
    upon ―perhaps the oldest of the fundamental liberty interests‖
    recognized by the Supreme Court145 and a right that has been rec-
    140 
    Wells, 681 P.2d at 206
    (internal quotation marks omitted); see
    also Thurnwald, 
    2007 UT 38
    , ¶¶ 28–35.
    141   Supra ¶ 59 n.22.
    
    142Stanley, 405 U.S. at 652
    ; 
    Lehr, 463 U.S. at 262
    –63 (discussing
    an unwed father‘s due process right, stemming from his inchoate
    parental right, to the ―opportunity to form‖ a full parental rela-
    tionship with his child).
    143 Because Judge Orme concurred in the judgment and did not
    join Part II.A.2.c or Part II.A.3 of Justice Lee‘s opinion, throughout
    this section I will refer alternatively to either the ―plurality‖ or the
    ―majority‖ opinion, depending on whether the section was or was
    not joined by Judge Orme.
    144   Supra ¶ 59.
    145   Troxel v. Granville, 
    530 U.S. 57
    , 65 (2000).
    79
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ognized by this court.146 The plurality fails to appreciate that our
    1982 case Wells v. Children’s Aid Society explicitly recognized an
    unwed father‘s fundamental, ―provisional right‖ to raise his
    children and held that a statute that interferes with such a right is
    subject to strict scrutiny.147 There, we stated very clearly that un-
    der the Utah Constitution, ―an unwed father‘s right to his relation-
    ship with his newborn is a provisional right . . . . [and] [w]e meas-
    ure the statutory specifications for the termination of that provi-
    sional right against the tests of compelling state interest and nar-
    rowly tailored means.‖148 The plurality goes to great lengths in its
    attempt explain Wells away, but it ultimately fails to convincingly
    to do so. Instead of following Wells as precedent under the prin-
    ciple of stare decisis, the plurality instead (1) spuriously labels it
    ―dicta,‖ (2) claims that it has been effectively overruled by later
    cases, and finally (3) simply asserts that the court today would
    have decided the case differently—maligning the decision as hav-
    ing ―shaky‖ support and a ―bit too facile‖ conclusion. 149 The plu-
    rality asserts that the Wells court relied on an ―abstract formula‖
    when it deemed an unwed father‘s parental interest fundamen-
    tal.150 But one does not need to rely on any formula to conclude
    that a father has a deep, personal interest in his child, and if he
    steps forward at the child‘s birth, that right should not be taken
    away by the government absent a compelling reason.151
    146 See, e.g., Thurnwald, 
    2007 UT 38
    , ¶ 33; 
    Wells, 681 P.2d at 206
    –
    07; In re J.P., 
    648 P.2d 1364
    , 1373–74 (Utah 1982).
    
    147 681 P.2d at 206
    –07.
    148   
    Id. at 206.
       149   Supra ¶¶ 50, 51.
    150   Supra ¶ 52.
    151 Cf. 
    Lehr, 463 U.S. at 256
    (―The intangible fibers that connect
    parent and child have infinite variety. They are woven throughout
    the fabric of our society, providing it with strength, beauty, and
    flexibility.‖); 
    id. at 26
    1 (―When an unwed father demonstrates a
    full commitment to the responsibilities of parenthood by com[ing]
    forward . . . his interest in personal contact with his child acquires
    substantial protection under the due process clause.‖(first altera-
    tion in original) (internal quotation marks omitted)).
    80
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                         NEHRING, A.C.J., dissenting
    ¶132 Despite this court‘s decisions in Wells, Thurnwald, and
    the bulk of United States Supreme Court authority to the con-
    trary,152 the plurality proceeds as though unmarried biological fa-
    thers have no substantive due process rights, provisional or oth-
    erwise.153 Without justification, the majority describes Mr. Bol-
    den‘s asserted right to the custody of his biological child as a re-
    quest that this court recognize a ―new‖ right of substantive due
    process.154 The right of an unwed father to assert his parental sta-
    tus is not new, and the majority‘s approach constitutes a dramatic
    departure from our jurisprudence.
    ¶133 The majority begins its discussion with a lengthy exposi-
    tion of the United States Supreme Court‘s Lochner era.155 This
    152Michael H. v. Gerald D., 
    491 U.S. 110
    , 128–29 (1989) (Scalia, J.,
    plurality opinion); 
    Lehr, 463 U.S. at 261
    ; 
    Santosky, 455 U.S. at 746
    ;
    Stanley, 
    405 U.S. 645
    at 657–58.
    153  Supra ¶¶ 38–39, 51–53, 57. The plurality asserts that the Su-
    preme Court‘s longstanding exaltation of the fundamental interest
    of parents in the care, custody, and control of their children, see,
    e.g., 
    Troxel, 530 U.S. at 65
    , ―comes nowhere close to establishing a
    . . . fundamental right of an unwed father.‖ Supra ¶57 n.21 (em-
    phasis added). Instead, the plurality goes on, unwed fathers have
    only a ―provisional right, subject to reasonable regulation.‖ 
    Id. Thus, the
    plurality envisions an unwed father‘s interest in his
    child as utterly separate and distinct from any historical right of
    parents to care for their children, and instead classifies the paren-
    tal right of unwed fathers as subject to the lowest level of constitu-
    tional protection.
    154Supra ¶ 34 n.14 (explaining the court‘s view that the Lochner
    era cases provide a ―cautionary reminder of the perils of over-
    exuberant invocations of the judicial power to recognize new fun-
    damental rights‖ (emphasis added)); ¶ 6 (Mr. Bolden ―fails to
    present evidence that the right he asserts (to preserve his rights as
    an unwed father without filing an affidavit) is a matter deeply
    rooted in established history and tradition‖).
    155  A majority of this court has disapproved of opinions that
    contain ―length[y]‖ writing on topics that do ―not affect the reso-
    lution‖ of the case. State v. Walker, 
    2011 UT 53
    , ¶ 21, 
    267 P.3d 210
    ;
    see also Utah Safe to Learn-Safe to Worship Coal., Inc. v. State, 
    2004 UT 81
                              In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    discussion has no place in the analysis. Even post-Lochner, the
    United States Supreme Court and this court have consistently
    upheld substantive due process concerning certain non-economic
    rights, including ―parents‘ inherent right and authority to rear
    their own children.‖156 While placing the law in ―historical con-
    text‖ may be a proper academic pursuit, I believe such verbosity
    is best curtailed, particularly in what is already a lengthy opinion.
    While extended historical analysis may occasionally be called for,
    it should be used sparingly and with restraint. In my view, the
    court should be reluctant to include dicta indicating its opinions
    about the history of the law.157 The truth is, it is well established
    under the law of both the United States and Utah that an unwed
    father‘s interest in asserting custody of his infant child or retain-
    ing custody of his older children is ―cognizable and substan-
    tial.‖158
    ¶134 Moreover, though the plurality claims that there is no
    ―historical basis‖ for a deeply rooted fatherly parental right,159 in
    32, ¶ 19, 
    94 P.3d 217
    (―The courts are not a forum for hearing aca-
    demic contentions . . . .‖).
    156 
    Stanley, 405 U.S. at 651
    ; In re J.P., 
    648 P.2d 1365
    , 1373 (Utah
    1982) (recognizing and upholding ―parents‘ inherent right and au-
    thority to rear their own children‖ under a substantive due
    process analysis).
    157 Compare supra ¶ 30 (―the Due Process Clause is not a license
    for the judicial fabrication of rights that judges might prefer, on
    reflection, to have been enshrined in the constitution‖), and ¶¶ 32–
    37 (explaining the ―lesson of Lochner‖), with ¶ 31 (―That said, the
    principle of substantive due process is ingrained in both federal
    and state precedent. So although we proceed cautiously in this
    domain we cannot repudiate the substantive due process inquiry
    altogether.‖).
    158   
    Stanley, 405 U.S. at 652
    ; 
    Wells, 681 P.2d at 202
    , 206–07.
    159 Supra ¶¶ 59, 54. Indeed, the majority itself unwittingly ac-
    knowledges this, stating that ―[t]he integrity of the family and the
    parents‘ inherent right and authority to rear their own children
    have been recognized as fundamental axioms of Anglo-American
    culture, presupposed by all our social, political, and legal institu-
    tions.‖ Supra ¶ 39.
    82
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                          NEHRING, A.C.J., dissenting
    fact the recognition of the parental rights of fathers has a strong
    basis in American and English history. As this court explained in
    1982, the ―parental right . . . is rooted . . . in nature and human in-
    stinct. . . . [T]he parent‘s right, as well as duty, to care for a child
    may be termed natural, as well as legal and moral.‖160 The histor-
    ical importance of fathers is well captured in a Mississippi Su-
    preme Court case from 1900:
    Undoubtedly, the father has primarily, by law as
    by nature, the right to the custody of his children. .
    . . Nature and the law ratifying nature assume that
    the author of their being feels for them a tender-
    ness which will secure their happiness more cer-
    tainly than any other tie on earth. Because he is the
    father, the presumption naturally and legally is
    that he will love them most, and care for them
    most wisely.161
    Or, as we stated in In re J.P.,
    Men and women in most cultures have long viewed
    their offspring as somehow being an extension of
    themselves, and as more than mere ‗property.‘ The
    bearing and raising of children has probably
    brought people into contact with some sense of the
    Infinite, the mysteries of the universe, or Nature—
    however one may express it—more than any other
    human experience. Thus, it is not surprising that
    common law judges refer to parental interests as
    ‗sacred,‘ ‗natural,‘ or ‗fundamental‘ rights, espe-
    160In re 
    J.P., 648 P.2d at 1374
    –75 (internal quotation marks
    omitted).
    161 Hibbette v. Baines, 
    29 So. 80
    , 81 (Miss. 1900). While it is true
    that much has changed in our society‘s view of children and mar-
    riage since 1900, the point is that fatherhood has long been exalted
    and recognized as a right deserving of the utmost protection. So-
    cietal changes since 1900 have erased the stigma of illegitimacy
    and drastically increased the number of children born outside of
    wedlock. Cases like Hibbette merely illustrate what should go
    without saying—that fathers‘ parental rights have long been con-
    sidered of fundamental importance.
    83
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    cially when the constitutional standard for a ‗fun-
    damental‘ right is whatever judges find when they
    look to the traditions and (collective) conscience of
    our people to determine whether a principle is so
    rooted (there) . . . as to be ranked as fundamen-
    tal. . . .162
    ¶135 It is true that, historically, out-of-wedlock births were
    relatively rare and socially inappropriate, exposing both father
    and child to social and legal stigma. In the twenty-first century,
    however, cultural attitudes toward out-of-wedlock births have
    shifted. In 2012, over 40 percent of births in the United States
    were to unmarried women.163 As we noted in In re Baby Girl T.,
    ―policies predicated on the notion that unwed fathers are univer-
    sally uninterested in their offspring or unwilling to embrace pa-
    renthood—even when unwed mothers on occasion are not—are
    being overtaken by stark . . . changes in public attitudes toward
    marriage.‖164
    ¶136 Due to the nature of the birth process, the identity of the
    father of an unmarried woman‘s baby is not immediately ob-
    vious.165 While on that basis the United States Supreme Court and
    this court have held that an unmarried father‘s parental right is
    ―provisional‖ or ―inchoate‖—we have never held that it is no
    
    162 648 P.2d at 1376
    –77 (alterations in original) (emphasis add-
    ed) (internal quotation marks omitted).
    163Joyce A. Martin et. al, Births: Final Data for 2012, NATIONAL
    VITAL STATISTICS SYSTEM, CENTERS FOR DISEASE CONTROL &
    PREVENTION,          2            (Dec.           30,         2013),
    http://www.cdc.gov/nchs/data/nvsr/nvsr62/nvsr62_09.pdf.
    164 
    2012 UT 78
    , ¶ 18 n.5; see also George A. Akerlof & Janet L.
    Yellen, An Analysis of Out-Of-Wedlock Births in the United States,
    BROOKINGS              INSTITUTE,           (Aug.            1996),
    http://www.brookings.edu/research/papers/1996/08/childrenf
    amilies-akerlof (stating that ―[b]efore 1970, the stigma of unwed
    motherhood was so great that few women were willing to bear
    children outside of marriage‖ but ―out-of-wedlock childbearing
    no longer results in social ostracism‖).
    165   Nguyen v. I.N.S., 
    533 U.S. 53
    , 62 (2001).
    84
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                           NEHRING, A.C.J., dissenting
    right at all.166 Indeed, this court has said that an unmarried fa-
    ther‘s opportunity to assert parental rights demands protection
    from governmental infringement through the use of strict scruti-
    ny.167 I would recognize the importance of an unwed father‘s
    provisional right by applying strict scrutiny to legislation that in-
    fringes upon it. The plurality denies that Mr. Bolden has any pro-
    tected substantive due process interest in his newborn, fails to
    employ strict scrutiny, and thereby abandons decades of
    precedent. In short, the court fails to protect the parental rights of
    unmarried fathers, to say nothing of the children who will grow
    up without ever knowing them.
    ¶137 The court acknowledges that our decision in Wells v.
    Children’s Aid Society ―adopted a different standard [of scrutiny]
    under the Utah Constitution.‖168 The court explains, correctly,
    that ―we concluded in Wells that the proponent of legislation in-
    fringing parental rights must show (1) a compelling state interest
    in the result to be achieved and (2) that the means adopted are
    narrowly tailored.‖169 Despite this, the plurality nevertheless dis-
    regards Wells on the basis that the standard employed there ―is in
    some tension with . . . subsequent cases‖ and is ―in any event . . .
    dicta.‖170 It is neither.
    166 In re Baby Girl T., 
    2012 UT 78
    , ¶¶ 18–20; Thurnwald, 
    2007 UT 38
    , ¶ 28; 
    Wells, 681 P.2d at 206
    .
    167 
    Wells, 681 P.2d at 207
    (―We measure the statutory specifica-
    tions for the termination of [an unwed father‘s] provisional right
    against the tests of compelling state interest and narrowly tailored
    means.‖); Thurnwald, 
    2007 UT 38
    , ¶ 28.
    168   Supra ¶ 42.
    169   Supra ¶ 42 (internal quotation marks omitted).
    170  Supra ¶¶ 43, 47–48, 50. Additionally, in our 2007 case
    Thurnwald v. A.E., we cited and employed the Wells standard.
    
    2007 UT 38
    , ¶¶ 32–33. There, we held that a provision of the
    Adoption Act that cut off unwed fathers‘ ability to file on holidays
    and weekends was ―not necessary to achieve the state’s compelling
    interests‖ nor was it a ―narrowly tailored means of achieving those in-
    terests.‖ 
    Id. ¶ 35
    (emphasis added). Because we recognized that
    strict scrutiny was the proper standard there, and because the re-
    levant statute would not survive that scrutiny, we engaged in a
    85
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    ¶138 The plurality explains that it would overrule Wells171 in
    part because it claims that two later cases, In re Adoption of T.B.
    and In re Baby Girl T., control as the ―most recent pronounce-
    ments‖ on the issue of the standard of scrutiny.172 But the plurali-
    ty fails to note that there is an obvious reason that the Wells-
    Thurnwald line of cases was not used in In re Adoption of T.B. and
    In re Baby Girl T—it is because the putative father in those cases
    did not bring a claim under the Utah Constitution.173 This omission is
    glaring and deeply undercuts the plurality‘s justification for pro-
    ceeding as though Wells and Thurnwald were overridden.174 It is
    true that In re Baby Girl T, the court states that ―due process re-
    constitutional avoidance analysis and instead read into the statute
    a caveat that a father‘s rights could not be cut off simply because
    the birth occurred on a weekend. Thurnwald, thus, was a case
    where this court emphasized that the Wells standard applied, even
    if it was ultimately not needed on the basis of constitutional
    avoidance.
    171  Because Judge Orme has remained silent on these issues
    and has provided no opinion on the proper standard of scrutiny
    or the nature of Mr. Bolden‘s asserted right, the court today issues
    no holding concerning the level of scrutiny that should be applied
    to Mr. Bolden‘s substantive due process claim. A majority of the
    court believes that the Wells standard is ―in some tension‖ with
    later cases, supra ¶ 43, but without a third vote, the court is unable
    to provide a solution to the asserted conflict. Supra ¶¶ 46–57 (Lee,
    J., plurality opinion). As a result, the status of the law in this area
    appears to be unsettled.
    172Supra ¶ 49; R.C.S. v. A.O.L. (In re Baby Girl T.), 
    2012 UT 78
    ,
    
    298 P.3d 1251
    ; T.M. v. B.B. (In re Adoption of T.B.), 
    2010 UT 42
    , 
    232 P.3d 1026
    . The plurality would also abrogate Thurnwald, which
    approved of and used the Wells strict-scrutiny standard as part of
    a constitutional avoidance analysis. 
    2007 UT 38
    , ¶¶ 28, 32–33, 35.
    173 In re Adoption of T.B., 
    2010 UT 42
    , ¶¶ 16, 17 (citing 
    Mathews, 424 U.S. at 339
    –50); see also 
    id. ¶ 24
    (―[T]he putative father asserts
    that [the adoption code‘s] application to him is unconstitutional,
    both under the Due Process and Equal Protection clauses of the
    United States Constitution.‖).
    174   Supra ¶ 50.
    86
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                           NEHRING, A.C.J., dissenting
    quires only that an unwed father have ‗a meaningful chance to
    preserve his opportunity to develop a relationship with his
    child,‘‖ but this statement was made in the context of a procedural
    due process analysis175—not a substantive due process analysis as
    in Wells and Thurnwald. Moreover, in Baby Girl T., the father nev-
    er ―expressly articulated‖ his constitutional challenge and failed
    to even use the words ―due process‖ in bringing his claim176—
    thus, in Baby Girl T., the court was not addressing a claim brought
    squarely under the Utah Constitution‘s Due Process Clause. Simi-
    larly, In re Adoption of T.B. involved a constitutional challenge
    brought solely under the United States Constitution, not the Utah
    Constitution.177
    ¶139 The plurality also claims that ―in any event, the Wells
    standard of scrutiny was unnecessary to the outcome in that case,
    and may thus be viewed as over-enthusiastic dicta.‖178 I disagree.
    A court‘s reasoning is not ―dicta‖ just because the court ―could
    easily have reached the same conclusion‖ by using a different
    standard.179 A court‘s holding stems from the reasoning it actual-
    ly used, and such reasoning cannot be dismissed as mere ―dicta.‖
    The majority‘s concept of obiter dictum flouts the basic meaning
    of that term. Obiter dictum is a ―judicial comment made while
    delivering a judicial opinion, but one that is unnecessary to the
    decision.‖180 In other words, it is an ―‗extrajudicial expression[] of
    legal opinion‘‖ given by way of ―‗illustration, argument, analogy,
    175 In re Baby Girl T, 
    2012 UT 78
    , ¶¶ 11, 16, 20 (―[Unwed fa-
    ther‘s] private interest therefore is in the opportunity to develop a
    substantial relationship with [his infant]. The Act must give him a
    meaningful and adequate procedure to protect this interest.‖)..
    
    Id. ¶¶ 33,
    36 (unwed father ―repeatedly made due process
    176
    arguments, although they were not labeled as such‖).
    177   
    2010 UT 42
    , ¶¶ 16, 24.
    178   Supra ¶ 50.
    179   Supra ¶ 50.
    180   BLACK‘S LAW DICTIONARY 1177 (9th ed. 2007).
    87
    In re Adoption of J.S.
    NEHRING, A.C.J., dissenting
    or suggestion.‘‖181 The rule of law used by a court as the basis of
    its legal conclusion is fundamentally and squarely not obiter dic-
    tum. That was the role of the strict scrutiny standard in Wells. In
    Wells, the court explicitly measured a statute‘s infringement of an
    unwed father‘s rights against ―the tests of compelling state inter-
    est and narrowly tailored means,‖ and found that the statute
    passed strict scrutiny.182 Thus, very simply, the court applied
    strict scrutiny to reach its conclusion, and that application was not
    ―unnecessary to the outcome.‖183 Under the plurality‘s approach,
    if a court could have reached an outcome in a different way, the
    court‘s actual analysis can later be dismissed wholesale as ―dic-
    ta.‖184
    ¶140 Wells established the standard of scrutiny for a legisla-
    tive infringement of parental rights—and more specifically, the
    parental rights of unwed fathers—under the Utah Constitution,185
    and the plurality‘s reasons for abrogating it fall flat.186 I agree that
    litigants in Utah should be ―entitled to rely on our explication of
    the law as definitive.‖187 But today the court has, at best, cast
    181Id. (citing William M. Lile et al., BRIEF MAKING AND THE USE
    OF LAW BOOKS 304 (3d ed. 1914)). For an example of this, see the
    majority‘s discussion of Lochner, supra ¶¶ 32–36.
    182   
    Wells, 681 P.2d at 206
    –07.
    183   Supra ¶ 50.
    184   Supra ¶ 50.
    185 Supra ¶ 42 (acknowledging that ―[o]ur Wells decision
    adopted . . . a standard of heightened scrutiny . . . under the Utah
    Constitution‖).
    186 See, e.g., Vorher v. Henriod, 
    2013 UT 10
    , ¶ 13, 
    297 P.3d 614
    (―Under the doctrine of stare decisis, a party asking us to overturn
    prior precedent has a substantial burden of persuasion. . . . [L]ong
    standing precedent should not be overruled except for the most
    compelling reasons.‖ (second alteration in original) (internal quo-
    tation marks omitted)).
    187Supra ¶ 49 & n.17. Contra supra ¶¶ 51–52 (asserting that the
    analysis in 
    Wells, 681 P.2d at 206
    –07, was ―shaky‖ and ―should
    have‖ been done differently).
    88
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                           NEHRING, A.C.J., dissenting
    doubt upon the precedential value of Wells,188 a case that has been
    the law in Utah for thirty years.
    ¶141 In sum, I would evaluate Mr. Bolden‘s claim using strict
    scrutiny and would find that section 78B-6-121(3)(b) fails to satisfy
    that demanding standard because it is not narrowly tailored, nor
    does it achieve a compelling government interest. The affidavit
    requirement violates due process because (1) it is fundamentally
    unfair to irrevocably foreclose an unwed father‘s parental rights
    without affording him robust procedural protection; (2) the State
    does not have a compelling interest in legislating based on gender
    stereotypes, nor is the statute narrowly tailored to any compelling
    interest; and (3) other requirements—which Mr. Bolden satis-
    fied—suffice to ensure that the unwed father has accepted respon-
    sibility and stepped forward as a parent as required by Lehr.189
    CONCLUSION
    ¶142 The court‘s decision today represents an indefensible
    departure from this court‘s and the United States Supreme
    Court‘s constitutional jurisprudence. I would first and foremost
    hold that Utah Code section 78B-6-121(3)(b) is a violation of Equal
    Protection under both the Utah Constitution and the United States
    Constitution. In my view, it impermissibly discriminates on the
    basis of outdated, offensive, and harmful gender stereotypes.
    Second, by refusing to engage in a procedural due process analy-
    sis, the majority unfairly sidesteps this important issue without an
    adequate justification for doing so. Finally, the court distorts and
    essentially abandons the time-honored constitutional law of subs-
    tantive due process by holding that an unwed father‘s right to as-
    sert himself as the parent of his child is deserving of the lowest
    level of protection. The Utah and United States Constitutions
    strictly protect the fundamental right to parent one‘s own child-
    ren; a right that is inextricably linked to the unwed father‘s oppor-
    tunity to step forward and assume his parental role. I would hold
    that section 78B-6-121(3)(b) is fundamentally unfair as applied to
    Mr. Bolden and deprived him of a meaningful chance for a hear-
    ing before he lost his rights as a father. Alternatively, I would
    hold that section 78B-6-121(3)(b) violated Mr. Bolden‘s substantive
    188   Wells, 
    681 P.2d 199
    .
    189   
    Lehr, 463 U.S. at 262
    .
    89
    In re Adoption of J.S.
    JUSTICE PARRISH, dissenting
    due process rights because it infringed his opportunity interest in
    asserting the fundamental right to parent his newborn son and
    was not narrowly tailored to serve a compelling government in-
    terest.
    JUSTICE PARRISH, dissenting:
    ¶143 I agree with Justice Nehring that the affidavit requirement
    of the Utah Adoption Act (the Act), Utah Code section 78B-6-
    121(3)(b), unconstitutionally discriminates against unwed fathers
    on the basis of their gender. But I find the tenor of his dissent re-
    grettable. In my view, the constitutional validity of the affidavit
    requirement presents a close issue on which reasonable minds can
    legitimately disagree. I therefore write separately on the narrow
    issue of equal protection. I would strike the affidavit requirement
    as violative of the Equal Protection Clause of the United States
    Constitution. As a result, I would not address Mr. Bolden‘s claim
    that the affidavit requirement violates his right to due process or
    the uniform operation of laws.
    ¶144 As both the majority opinion and Justice Nehring‘s dissent
    explain, the affidavit requirement discriminates on the basis of
    sex.1 In order for an unwed father to perfect his parental rights, he
    must
    file[] with the court . . . a sworn affidavit:
    (i) stating that he is fully able and willing to
    have full custody of the child;
    (ii) setting forth his plans for care of the child;
    and
    (iii) agreeing to a court order of child support
    and the payment of expenses incurred in connec-
    tion with the mother‘s pregnancy and the child‘s
    birth.2
    An unwed mother is not required to file a similar affidavit; her
    parental rights are perfected by default.
    1   
    See supra
    ¶ 72; infra ¶ 87.
    2   UTAH CODE § 78B-6-121(3)(b).
    90
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                           JUSTICE PARRISH, dissenting
    ¶145 This is facially disparate treatment on the basis of sex. Ac-
    cordingly, to pass muster under the Equal Protection Clause of the
    United States Constitution,3 the affidavit requirement must with-
    stand intermediate scrutiny.4 To satisfy this standard, the propo-
    nent of the requirement, in this case the Does, must demonstrate
    that the disparate treatment of an unwed mother and an unwed
    father is ―substantially related‖ to achieving an important go-
    vernmental objective.5 Phrased another way, ―[t]he fit between
    the means and the important end [must be] ‗exceedingly persua-
    sive.‘‖6 In my view, the Does have not satisfied their burden.
    I. INTERMEDIATE SCRUTINY
    ¶146 The majority correctly recognizes that legislative classifica-
    tions that discriminate on the basis of gender are evaluated under
    a standard of intermediate scrutiny. In my view, however, the
    majority unfairly distinguishes controlling precedent from the
    United States Supreme Court by implying that there are actually
    two categories of intermediate scrutiny and then evaluating the
    affidavit requirement under the less stringent standard.
    ¶147 The majority would apply a higher level of scrutiny to
    those cases of ―‗official action that close[] a door or den[y] oppor-
    tunity to women (or men).‘‖7 In cases of this nature, the majority
    says that the standard is ―difficult‖ to satisfy because it requires
    ―an ‗exceedingly persuasive‘ justification.‖8 The majority says the
    standard is ―easier to satisfy‖ in all other ―less imposing‖ cases of
    discrimination on the basis of sex.9 In particular, when ―differen-
    tial treatment of men and women stems initially . . . from a
    straightforward matter of biology,‖ the majority would require
    3   U.S. CONST. amend. XIV, § 1.
    4   Nguyen v. I.N.S., 
    533 U.S. 53
    , 60 (2001).
    5   
    Id. 6 Id.
    at 70.
    7 Supra ¶ 70 (quoting United States v. Virginia, 
    518 U.S. 515
    , 532
    (1996)).
    8   Supra ¶ 70 (quoting 
    Virginia, 518 U.S. at 532
    ).
    9   Supra ¶ 70.
    91
    In re Adoption of J.S.
    JUSTICE PARRISH, dissenting
    only a ―substantial fit‖ between the legislative objective and the
    discriminatory means at issue.10
    ¶148 But the United States Supreme Court has not recognized
    the distinction suggested by the majority. It has articulated only
    one definition of intermediate scrutiny applicable in sex discrimi-
    nation cases. In fact, it has defined an ―exceedingly persuasive
    justification‖ as one in which the discriminatory scheme is ―sub-
    stantially related‖ to the ends it seeks to achieve.11 I therefore am
    not persuaded that the United States Supreme Court cases strik-
    ing sex-based classifications for failure to advance an exceedingly
    persuasive justification are distinguishable.12 And while I ac-
    knowledge that the United States Supreme Court‘s precedent in
    this area is far from clear, it appears to me that the majority opi-
    nion‘s formulation of the lower level of intermediate scrutiny it
    applies is, in practice, virtually indistinguishable from the rational
    basis review applicable in cases that involve no discriminatory
    classification.
    II. THE DOES HAVE FAILED TO MEET THEIR BURDEN
    OF ESTABLISHING AN EXCEEDINGLY PERSUASIVE
    JUSTIFICATION FOR THE DISCRIMINATORY
    AFFIDAVIT REQUIREMENT
    ¶149 In my view, application of the established standard of in-
    termediate scrutiny to the affidavit requirement leads to the con-
    clusion that the Does have failed to meet their burden of establish-
    ing that the Act‘s disparate treatment of unwed fathers and un-
    wed mothers is substantially related to achieving an important
    10   Supra ¶ 73.
    11  In Nguyen, Justice Kennedy, with Justices Rehnquist, Ste-
    vens, Scalia, and Thomas joining, recognized a single standard for
    evaluating claims of sex discrimination under the Equal Protec-
    tion Clause, ―explain[ing] that an ‗exceedingly persuasive justifi-
    cation‘ is established ‗by showing at least that the classification
    serves important governmental objectives and that the discrimina-
    tory means employed are substantially related to the achievement
    of those 
    objectives.‘‖ 533 U.S. at 70
    (quoting Miss. Univ. for Women
    v. Hogan, 
    458 U.S. 718
    , 724 (1982) (internal quotation marks omit-
    ted)).
    12   See, e.g., 
    Virginia, 518 U.S. at 523
    –24; 
    Hogan, 458 U.S. at 724
    .
    92
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                           JUSTICE PARRISH, dissenting
    governmental objective. The starting point of the analysis is to
    identify the objectives that the Act is intended to promote.
    ¶150 The Act sets forth a variety of governmental objectives. It
    declares that ―[i]t is the intent and desire of the Legislature that in
    every adoption the best interest of the child should govern.‖13
    The Act further declares that ―the state has a compelling interest
    in requiring unmarried biological fathers to demonstrate com-
    mitment‖ to the responsibilities of parenthood.14 While the Legis-
    lature may prefer that we simply accept what is set out in the
    ―Legislative intent and findings‖ section of the Act,15 intermediate
    scrutiny requires a more searching analysis. This is particularly
    true in cases such as this, where one of the stated legislative objec-
    tives is itself discriminatory—that of requiring that only unmar-
    ried biological fathers demonstrate commitment to the responsi-
    bilities of parenthood. Therefore, while the Legislature has de-
    fined the purpose of the Act as requiring only unmarried biologi-
    cal fathers to demonstrate commitment to parenthood, we must
    ask why it has no similar objective with regard to unmarried bio-
    logical mothers. And while the Act purports to further the broad
    objective of advancing the best interest of the child, we must con-
    front why only biological fathers—and not biological mothers—
    must express a future commitment to accept full custody of their
    biological child before they may have any say in the child‘s fu-
    ture.16
    13   UTAH CODE § 78B-6-102(1).
    14   
    Id. § 78B-6-102(5)(f).
       15   See 
    id. § 78B-6-102.
       16  In practice, the Act defines the best interest of the child as a
    commitment by the biological father to ―have full custody,‖ to de-
    velop ―plans for care,‖ and to ―agree[] to a court order of child
    support and payment of [pregnancy and birth] expenses.‖
    
    Id. § 78B-6-121(3)(b).
    And this forward-looking commitment is
    required before an unwed father can have any say regarding the
    future of his child, whether he intends to consent to a proposed
    adoption, consent to adoption by others of his choosing, place the
    child with a close family member, or raise the child himself. No
    such forward-looking commitment is required on the part of an
    unwed biological mother.
    93
    In re Adoption of J.S.
    JUSTICE PARRISH, dissenting
    ¶151 Because we cannot allow a discriminatory legislative ob-
    jective to justify a discriminatory legislative requirement, we must
    conclude that the Act‘s objective is to secure a forward-looking
    commitment by a parent to raise a child before allowing that par-
    ent to have any say in the child‘s future. And if that is the objec-
    tive, we must ask why such a forward-looking commitment is re-
    quired of only unwed fathers.
    ¶152 The majority maintains that the Act serves two purposes.
    First, the majority posits that it provides a mechanism of promptly
    identifying those who might be designated as parents.17 Second,
    it ensures that such persons will fulfill their parental role.18 I ac-
    knowledge that biological differences between men and women
    justify their disparate treatment with respect to the identification
    of unwed fathers. But I fail to see how such biological differences
    justify treating men and women differently when it comes to their
    forward-looking commitment to fulfill their parental role. Be-
    cause the affidavit requirement relates only to this second objec-
    tive, I conclude that it fails intermediate scrutiny.
    ¶153 The starting point for analyzing the Act‘s disparate treat-
    ment of men and women is the legitimate difference between a
    mother‘s and a father‘s biology. A mother‘s biological relation-
    ship with her child is readily apparent; a father‘s is not. Because
    of this biological fact, I believe it is entirely legitimate for the Act
    to provide a mechanism for prompt and reliable identification of a
    child‘s biological father. The Act accomplishes this by requiring
    an unwed biological father to ―initiate[] proceedings in a district
    court of Utah to establish paternity‖ and to ―file[] notice of the
    commencement of paternity proceedings . . . with the state regi-
    strar of vital statistics.‖19 And because the biological mother‘s
    identity is obvious, while a biological father‘s is not, the Act‘s li-
    mitation of these requirements to biological fathers has an excee-
    dingly persuasive fit with the statutory objective of parental iden-
    tification.
    ¶154 Similarly, a mother‘s biology requires her to shoulder re-
    sponsibility for the expenses of pregnancy and child birth; a fa-
    17   Supra ¶ 75.
    18   Supra ¶ 75.
    19 UTAH    CODE § 78B-6-121(3)(a), (c).
    94
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                           JUSTICE PARRISH, dissenting
    ther‘s biology does not. Based on this legitimate biological differ-
    ence, the Act provides a mechanism that is substantially related to
    achieving the important governmental objective of requiring each
    parent to pay ―a fair and reasonable amount of expenses . . . in ac-
    cordance with his [or her] financial ability.‖20 The Act accom-
    plishes this by requiring unwed biological fathers to pay a fair
    share of such expenses. Again, I find that this requirement is jus-
    tified by legitimate biological differences and is substantially re-
    lated to the legislative objective that parents share the financial
    burden of bringing a child into the world.21
    ¶155 But once a child is born and his or her parents are identi-
    fied, I do not believe that biological differences between men and
    women justify disparate treatment of unwed mothers and unwed
    fathers. The majority posits that a mother‘s biology allows her to
    show a commitment to a child by carrying the child to term.22
    And because a father‘s biology allows no similar biological ma-
    nifestation of commitment, the majority accepts the affidavit re-
    quirement as a ―defensible . . . attempt to put unwed parents on
    equal footing.‖23 Assuming that the legislative objective is to put
    unwed parents on equal footing, I do not believe that the affidavit
    requirement substantially advances that objective. Indeed, the af-
    fidavit requirement demands a commitment from unwed fathers
    that goes far beyond what a mother‘s biology necessarily implies
    about her forward-looking commitment to raise her child.24 While
    20   
    Id. § 78B-6-121(3)(d).
       21 There may be some concern that an unwed mother will, as a
    result of her biological position as a mother, be forced to raise an
    unwanted child and be burdened with postbirth expenses if the
    biological father is allowed to refuse consent to adoption but nev-
    ertheless does not take custody of the child or fulfill his financial
    responsibility. But Utah law provides a mechanism pursuant to
    which a biological mother can safely relinquish her parental rights
    and responsibilities apart from adoption. UTAH CODE §§ 62A-4a-
    802, 78A-6-504, -514.
    22   Supra ¶ 78.
    23   Supra ¶¶ 79–80.
    24 The plain language of the Act supports this conclusion. In-
    deed, in the same section of the Act that asserts the State‘s com-
    95
    In re Adoption of J.S.
    JUSTICE PARRISH, dissenting
    a father is required to swear ―that he is fully able and willing to
    have full custody of the child,‖ to ―set[] forth his plans for care of
    the child,‖ and to ―agree[] to a court order of child support and
    the payment of [pregnancy and child birth] expenses,‖ no such
    commitment is required of unwed mothers.25 In my view, the af-
    fidavit requirement provides something less than an exceedingly
    persuasive fit with the biological differences of commitment ex-
    pressed through the gestation and birthing process.
    ¶156 By carrying her child to term, an unwed mother demon-
    strates some level of commitment. But that commitment cannot
    necessarily be interpreted as a forward-looking commitment to
    raise her child. Indeed, because the affidavit requirement is found
    in the Utah Adoption Act, it will only be implicated when a biolog-
    ical mother has no commitment to ―have full custody of the
    child,‖ to develop ―plans for care of the child,‖ or to ―agree[] to a
    court order of child support and payment of [pregnancy and
    birth] expenses.‖26 So while a mother without any forward-
    pelling interest in requiring unwed fathers to demonstrate their
    commitment to the responsibilities of parenthood, the Act ex-
    plains that an unwed father ―demonstrate[s] [his] commitment by
    providing appropriate medical care and financial support and by
    establishing legal paternity.‖ UTAH CODE § 78B-6-102(5)(f). By
    fulfilling subsections (3)(a) and (3)(c) (the paternity requirements)
    and (3)(d) (the payment-of-pregnancy-expenses requirement) of
    section 78B-6-121, an unwed father has satisfied the State‘s
    mandate that he demonstrate his commitment to the responsibili-
    ties of parenthood. The affidavit requirement is therefore beyond
    what the Legislature itself has stated is necessary for an unwed
    father to demonstrate his commitment.
    25   
    Id. § 78B-6-121(3)(b).
       26  
    Id. Further, the
    Legislature has recognized that some moth-
    ers have no commitment to raise a child and has, therefore, pro-
    vided two mechanisms whereby a mother may relinquish her pa-
    rental rights and responsibilities. A mother ―may safely relin-
    quish a newborn child at a hospital . . . and retain complete ano-
    nymity‖ without fear of investigation or prosecution. 
    Id. § 62A-
    4a-802. Alternatively, she may voluntarily relinquish or consent
    to termination of her parental rights so long as a court finds that it
    is in the ―child‘s best interest.‖ 
    Id. §§ 78A-6-504,
    -514.
    96
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                           JUSTICE PARRISH, dissenting
    looking commitment to her child has standing, a father with an
    identical level of commitment does not.
    ¶157 In my view, the fit between the Act‘s objective of securing
    a specific, forward-looking commitment to raise a child and the
    affidavit requirement is simply too imprecise to justify the dispa-
    rate treatment of unmarried biological mothers and unmarried
    biological fathers. While biology may demonstrate a biological
    mother‘s commitment to bring a child into the world, it does not
    necessarily demonstrate a commitment to raise her child. But the
    Act requires that an unwed biological father unequivocally ex-
    press his forward-looking commitment to raise his child. In my
    view, such a disparate advancement of the State‘s stated objective
    in securing parental commitment is not a close enough fit to with-
    stand intermediate scrutiny.
    CONCLUSION
    ¶158 Because the affidavit requirement of the Utah Adoption
    Act results in the disparate treatment of unwed fathers and un-
    wed mothers, the Does have the burden of showing that the re-
    quirement satisfies intermediate scrutiny. In other words, they
    must establish that the affidavit requirement is substantially re-
    lated to achieving an important governmental objective.28 I do not
    believe that they have satisfied their burden. The affidavit re-
    quirement goes one step too far by requiring unwed fathers, but
    not unwed mothers, to make forward-looking commitments to
    child rearing. In so doing, the affidavit requirement tips the bal-
    ance against the unwed father by requiring him to demonstrate
    more than the unwed mother demonstrates by the sheer fact of
    her biology. I would therefore hold that the affidavit requirement
    of the Utah Adoption Act, Utah Code section 78B-6-121(3)(b), vi-
    olates the Equal Protection Clause of the United States Constitu-
    tion.
    28   Nguyen v. I.N.S., 
    533 U.S. 53
    , 60 (2001).
    97