Cite as: 533 U. S. 53 (2001)
O'Connor, J., dissenting
of the sort apparently present in this case. There is no reason, other than stereotype, to say that fathers who are present at birth lack an opportunity for a relationship on similar terms. The "[p]hysical differences between men and women," Virginia, 518 U. S., at 533, therefore do not justify § 1409(a)(4)'s discrimination.
The majority later ratchets up the interest, for the sake of argument, to "the establishment of a real, practical relationship of considerable substance between parent and child in every case, as opposed simply to ensuring the potential for the relationship to begin." Ante, at 70. But the majority then dismisses the distinction between opportunity and reality as immaterial to the inquiry in this case. Ibid. The majority rests its analysis of the means-end fit largely on the following proposition: "It is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in the actual formation of that bond." Ibid. A bare assertion of what is allegedly "almost axiomatic," however, is no substitute for the "demanding" burden of justification borne by the defender of the classification. Virginia, supra, at 533.
Moreover, the Court's reasoning hardly conforms to the tailoring requirement of heightened scrutiny. The fact that a discriminatory policy embodies the good intention of "seek[ing] to foster" the opportunity for something beneficial to happen is of little relevance in itself to whether the policy substantially furthers the desired occurrence. Whether the classification indeed "has a close and substantial bearing" on the actual occurrence of the preferred result depends on facts and circumstances and must be proved by the classification's defender. Far from being a virtual axiom, the relationship between the intent to foster an opportunity and the fruition of the desired effect is merely a contingent proposition. The majority's sweeping claim is no surrogate
87
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007