MICHAEL SCOTT EVANS,                       )
                                           )
      Petitioner/Appellant,                )   Appeal No.
                                           )   01-A-01-9511-JV-00508
VS.                                        )
                                           )   Davidson Juvenile
KAREN MARIE BISSON STEELMAN,               )   No. 9419-13267
                                           )
      Respondent/Appellee.                 )

                     COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE


CLARK LEE SHAW
                                                                   FILED
2525 Lebanon Road
                                                                   October 2, 1996
Nashville, Tennessee 37214

STEVEN M. MOORE                                                Cecil W. Crowson
30 Music Square West, Suite 301                               Appellate Court Clerk
Nashville, Tennessee 37203
      Attorneys for Petitioner/Appellant

PHILLIP W. DUER
MARY ARLINE EVANS
214 Third Avenue, North
Nashville, Tennessee 37201
      Attorneys for Respondent/Appellee

CHARLES W. BURSON
Attorney General & Reporter

JENNIFER HELTON SMALL
Deputy Attorney General
1510 Parkway Towers
Nashville, Tennessee
      Intervenor



                          AFFIRMED AND REMANDED



                                               BEN H. CANTRELL, JUDGE

SEPARATE
CONCURRING OPINION:
LEWIS, J.

SEPARATE
DISSENTING OPINION:
KOCH, J.
                                 OPINION


              In this appeal we are asked to re-visit the question of whether a man

who fathers a child by a married woman may legitimate the child. The Davidson

County Juvenile Court held that the legitimation statute allowing a putative father to

legitimate a child “not born in lawful wedlock” applied only to children born to

unmarried women.         If that interpretation holds, the appellant attacks the

constitutionality of the statute on due process and equal protection grounds. We

affirm the lower court’s interpretation of the statute and reject the appellant’s

contention that the statute is constitutionally defective.



                                           I.



              On December 13, 1994, Michael Scott Evans filed a petition in the

Juvenile Court of Davidson County seeking to legitimate a male child born to Karen

Marie Bisson Steelman on November 24, 1994. The petition alleged that Mr. Evans

is the father of the child and that conception occurred while Mrs. Steelman was

married to but separated from her husband, Jamie Steelman.



              Mrs. Steelman filed an answer denying that Mr. Evans is the child’s

father and raising the affirmative defense of Mr. Evans’ standing to prosecute the

action for legitimation. The juvenile judge dismissed Mr. Evans’ petition, ruling that

under the current law in Tennessee he had no standing to legitimate the child.



                                           II.



              Proceedings to legitimate children were unknown at common law. “In

the absence of statutory authorization, an illegitimate child cannot be legitimated by



                                          -2-
judicial proceedings.”    See 14 C.J.S. Children Out-of-Wedlock § 2B (1991).

Cunningham v. Golden, 652 S.W.2d 910 (Tenn. App. 1983). In Tennessee, the

statutory basis for such proceedings is found in Tenn. Code Ann. § 36-2-202:



                     (a)   An application to legitimate a child not born in
              lawful wedlock is made by petition, in writing, signed by the
              person wishing to legitimate such child, and setting forth the
              reasons therefor and the state and date of the child’s birth.

                      (b)    In addition to the provisions of subsection (a),
              a person wishing to legitimate a child may obtain an order of
              legitimation for a child born to an unmarried woman by filing
              with the court a certified copy or a duplicate original of the
              acknowledgment of paternity as prescribed under § 24-7-118,
              § 68-3-203(g), § 68-3-302, or § 68-3-305(b). Further, a
              duplicate original of the voluntary acknowledgment of
              paternity filed with the juvenile court by a birthing institution
              pursuant to the provisions of § 68-3-302(e) shall be the basis
              for the entry of an order of legitimation by the court. Subject
              to the provisions of § 24-7-118, the court shall enter an order
              of legitimation upon the filing of the voluntary
              acknowledgment of paternity in either of the above situations.

                     (c)   Nothing herein shall be construed to authorize
              a putative father to legitimate a child or to execute any
              voluntary acknowledgment of paternity without the consent of
              the mother of such child.



              In Cunningham v. Golden, 652 S.W.2d 910 (Tenn. App. 1983), this court

interpreted the phrase, “child not born in lawful wedlock,” in section (a), the only

section that existed at the time, to mean a child born to an unmarried woman. In

Cooper v. Thompson, 710 S.W.2d 944 (Tenn. App. 1985), this court followed the

ruling in Cunningham and said, “The legitimation statutes are for the protection of the

child, and are not for the purpose of allowing parents, biological or otherwise, to stake

out claims to the child.” 710 S.W.2d at 946. In both opinions the members of the

court expressed a strong belief that a restrictive interpretation was necessary to

preserve the integrity of existing families.



              Were we writing on a clean slate we might interpret the statute

differently. We think it is just as logical to hold that the phrase “not born in lawful


                                          -3-
wedlock” means any child whose parents were not married to each other. States with

statutes using similar language have extended the right to begin legitimation

proceedings to the putative father even when the mother is married to another man.1

It also seems logical that when a woman is separated from her husband and is living

with another man there is no intact family to be preserved.



                 But, “the legislature is presumed to know the interpretation which courts

make of its enactments.” Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1974). Thus,

when the legislature amended Tenn. Code Ann. § 36-2-202 in 1992, and again in

1994, it presumably knew of the interpretation given the statute in Cunningham and

Cooper.      Nevertheless, it did not change the language of the statute, and the

additional sections keep its scope very narrow. Subsection (b) provides an informal

procedure for obtaining an order of legitimation of a child born to an unmarried

woman, and, subsection (c) underscores the restrictions placed on putative fathers

by making the mother’s consent a requirement in any legitimation proceeding. 2 We

are persuaded, therefore, that the legislature intended to restrict the operation of

Tenn. Code Ann. § 36-2-202 to cases involving children born to unmarried mothers.



                                                  III.



                 Before we move to the question of the statute’s constitutionality, there

are two points raised in the dissent that should be addressed.



                 First is the dissent’s view that Cunningham v. Golden and Cooper v.

Thompson lack precedential value because they are only Court of Appeals opinions.



        1
         See Johnson v. Studley-Preston, 812 P.2d 121 6 (Ida ho 1 991 ); Durr v. Blue, 454 So.2d 315 (La.
Ct. App. 1984); Ind. Cod e 31-6-6.1-2(2) Sup p. 1995; Iowa C ode An n. § 600 B.8 (W est 1996).

        2
         W e are aware that the Eastern Section of this court declared subsection (c) unconstitutional
as applied to fathers seeking to legitimate children born to unmarried mothers. See Vineyard v. Hood,
Appeal No. 03-A-01-9508-JV-00296 (Eastern Section, Court of Appeals, filed June 10, 1996). But the
case does not affect this one, as we are dealing only with subsection (a) of the statute.

                                                  -4-
Coming from a Court of Appeals Judge that is a surprising view; but beyond that, it

simply does not withstand scrutiny. The dissent cites Swift v. Kirby, 737 S.W.2d 271

(Tenn. 1987) for the proposition that until the Supreme Court has spoken on a point

of law there is no binding precedent. Then the dissent discusses unpublished

opinions, which we find to be irrelevant to the point under consideration.



             Cunningham v. Golden and Cooper v. Thompson are both published

opinions in which the Supreme Court denied permission to appeal. It is true that the

Supreme Court in Swift v. Kirby said, “This Court is not committed to all of the views

expressed in an opinion of the intermediate appellate courts when we deny

discretionary review.” 737 S.W.2d at 277 (Tenn. 1987). But where the interpretation

of Tenn. Code Ann. § 36-2-202(a) was the only issue decided in Cunningham v.

Golden and was the only substantive issue decided in Cooper v. Thompson, an

argument that the Supreme Court did not approve the interpretation made by the

Court of Appeals cannot be made. The Supreme Court may change its mind, but until

it does, those cases should be followed.



             Second, we are intrigued by the dissent’s assertion that there is no

support for the notion that the legislature has somehow approved the result in

Cunningham v. Golden. As the basis for that position the dissent cites a dissenting

opinion in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442 (1987),

(which only three members of the United States Supreme Court joined) and ignores

the specific holdings of the Tennessee Supreme Court to the contrary. We cited

Hamby v. McDaniel, 559 S.W.2d 774 (1977), in which the Court said:

                      The legislature is presumed to know the interpretation
              which courts make of its enactments; the fact that the
              legislature has not expressed disapproval of a judicial
              construction of a statute is persuasive evidence of legislative
              adoption of the judicial construction, especially where the law
              is amended in other particulars, or where the statute is
              reenacted without change in the part construed. (Citations
              omitted.)



                                           -5-
559 S.W.2d at 776.



              We would only add that Hargrove v. Newsome, 225 Tenn. 462, 470

S.W.2d 348 (1971)(where the Supreme Court said the presumption was “conclusive”);

McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966);

Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436 (Tenn. 1962);

and New England Mutual Life Insurance Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238

(Tenn. 1935)(where the presumption was applied to an administrative interpretation),

could have been cited for the same proposition.



              Perhaps the most telling indication that the legislature has approved the

result in Cunningham v. Golden, supra, can be found in the legislative history of Tenn.

Code Ann. § 36-2-202 subsequent to the court’s decisions in both Cunningham and

Cooper. Although Section (a) contains the term “a child not born in lawful wedlock,”

the legislature did not choose to change or re-define that term, or any part of that

section. Section (b) provides a new procedure to legitimate a child, but by its terms

is limited only to children “born to an unmarried woman.” Section (c) does not directly

refer to the marital status of the mtoher of the child whose legitimation is sought, but

it limits the putative father’s right by requiring the consent of the mother.



              We presume that the legislature had the opportunity to deal with the

court’s holding in Cunningham v. Golden at the time the amendments were being

debated. It chose instead to enact some substantial changes in the legitimation

process without touching at all on the issue raised in that case.




                                           IV.




                                          -6-
               Our interpretation of the statute requires us to face the question of

whether the state can, consistent with due process and equal protection, pass an act

giving putative fathers the right to legitimate children born to unmarried women while

withholding that right when the mother is a married woman.



                                     a. Due Process



               The Fourteenth Amendment to the federal constitution and Article I § 6

of the state constitution prohibit the state from taking a citizen’s life, liberty, or property

without due process of law. A parent-child relationship may rise to the level of a

protected interest, because it is viewed as an interest in liberty. Lehr v. Robertson,

463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Nale v. Robertson, 871 S.W.2d

674 (Tenn. 1994). The right to raise a child is also a right of privacy guaranteed by the

Tennessee Constitution.        Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).                  But

constitutional protection does not result from the “mere existence of a biological link;”

an unwed father must demonstrate a “full commitment to the responsibilities of

parenthood” before “his interest in personal contact with his child acquires substantial

protection under the Due Process clause.” Lehr v. Robertson, 463 U.S. at 261, 103

S.Ct. at 2993, 77 L.Ed. at 626.



               Whether Mr. Evans’ interest has risen to the level where it acquires

constitutional protection has not been determined. For the purpose of this argument,

we assume that it has. Nevertheless, the short answer to the due process argument

is that the statute does not deprive him of anything. At common law he had no right

to legitimate the child, and this state has never recognized that right except by the

statute in question. The statute creates rights rather than taking them away, and

should not be judged defective on due process grounds. We think Mr. Evans’ case

boils down to a question of whether his rights to equal protection have been violated

by the state giving the right to legitimate a child to a man who fathers a child by an


                                             -7-
unmarried woman while denying that right to men whose children are the product of

a liason with another man’s wife.



                                 b. Equal Protection



              The right to equal protection under the law, as preserved by both state

and federal constitutions, guarantees “equal privileges and immunities for all those

similarly situated.” Tennessee Small Schools v. McWherter, 851 S.W.2d 139, 152

(Tenn. 1993). The obverse of that proposition is a recognition that “things which are

different in fact or opinion are not required by either constitution to be treated the

same. Id. 851 S.W.2d at 153. See also MCI Telecommunications Corp. v. Taylor,

914 S.W.2d 519 (Tenn. App. 1995).



              In a case brought as a paternity action pursuant to Tenn. Code Ann. §

36-2-103 (but treated by the Court of Appeals as a legitimation action) this court held

that where the child was born during the mother’s marriage to another man the state’s

interest in preserving family stability overrode any constitutionally cognizable interest

of the putative father. In the Matter of “A”, 735 S.W.2d 232 (Tenn. App. 1987). The

court quoted with approval from Petitioner F. v. Respondent R., 430 A.2d 1075 (Del.

1981):



              [I]n this case, however, there exists the very powerful
              countervailing public interest in promoting the marital
              relationship, preserving intact an existing family unit, and
              protecting the minor child from confusion, torn affection, and
              the lifelong stigma of illegitimacy. Thus, even assuming
              arguendo that the putative father has a constitutionally
              cognizable interest, that interest would be outweighed by the
              competing public interest and public policy in this case, and
              he must be denied judicial access.

735 S.W.2d at 238, 430 A.2d at 1079.




                                          -8-
               In Matter of “A”, this court also rejected the putative father’s argument

that the paternity statute violated his right to equal protection by giving the right to file

a petition to the mother and not to him. We found that the putative father was not in

the same category or circumstances as those within the family. We think that a

person seeking to legitimate a child born to a married woman is also in a

fundamentally different position from a man seeking to legitimate a child born to an

unmarried woman. The state’s interest in preserving the family justifies the state’s

decision to give the right of legitimation to one and not the other.



               The judgment of the trial court is affirmed and the cause is remanded

to the Juvenile Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellant.




                                             _____________________________
                                             BEN H. CANTRELL, JUDGE




SAMUEL L. LEWIS, JUDGE
SEPARATE CONCURRING OPINION


WILLIAM C. KOCH, JR., JUDGE
SEPARATE DISSENTING OPINION




                                            -9-
