NEWMAN, J., Dissenting. The majority conclude: “[Tjhere are two families here: Petitioner is in one. Susan and her daughter are in another. That may change, but it hasn’t yet. Until it does, the relationship between petitioner and Susan is not that of a ‘family.’” (Ante, p. 874.)
[876]The record does not tell us who are “in” petitioner’s family under that interpretation. Yet it does tell us that petitioner, Susan, and her daughter apparently lived together from 1971 until his arrest in 1978, that the daughter “has lived with [him] since her birth and regards him as her father” (italics added), and that the three enjoy “a bona fide long-standing family relationship with each other ... based on the long-standing and mutual emotional, psychological and financial commitment they have to each other ... . ” It seems likely that in the 1980’s many readers will be astonished to learn that that daughter and her mother are to be treated as having no family relationship with petitioner.1 (Cf. dis. opn. in Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 126, 130 [115 Cal.Rptr. 329, 524 P.2d 801, 68 A.L.R.3d 1204]: “... Elizabeth was the child of the decedent, in every sense but biological .'.and re child visitation generally see In re Smith (1980) 112 Cal.App.3d 956, 967-969 [169 Cal.Rptr. 564].)
Whom under the pertinent regulation here do prison officials treat as “immediate family members”? They include, quite extensively:
legal spouse, brothers and sisters,
natural parents, natural children,
adoptive children, step-parents,
step-children, foster parents,
grandchildren, and also grandparents,
“adoptive parents, if the adoption occurred and a family relationship existed prior to the inmate’s incarceration” ([Cal. Admin. Code, tit. 15] § 3174, subd. (a); italics added). Further: “When a bonafide and verified foster relationship exists between an inmate and another person, by [877]virtue of being raised in the same foster family, the person may be approved for family visiting with the prior approval of the warden or superintendent.” (Subd. (b).)
Those last two quotations should be read with care. They are significant because they authorize prison officials to decide whether an extended “family relationship existed” and whether “a bonafide ... foster relationship exists.” Subdivision (c) of the regulation, at issue here, similarly authorizes officials to decide whether “only a common-law relationship to the inmate” existed or exists. So far as we can tell from the record, the Department has not yet issued any official interpretation of its phrase “common-law relationship.”
Has the Legislature authorized the Department to exclude members of a stable, alternative family (albeit with “only a common-law relationship”) from a program that seemingly benefits all members of traditional and extended families—including “adoptive parents, if the adoption occurred and a family relationship existed prior to the inmate’s incarceration” and also “[a]unts, uncles and cousins [when] a bonafide foster relationship exists” (subd. (a), last sentence)?
Penal Code section 2600, enacted in 1975, provides a prisoner may “.. . be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.” There is no suggestion here that denial of petitioner’s request for family visits is “necessary to provide for the reasonable security of the institution ... and for the reasonable protection of the public.”
Has he been deprived of a right? It may be that neither constitutional nor other law gives all prisoners a right to family visitation. When officials grant that right to some prisoners, however, Penal Code section 2600 evidences a legislative determination that other prisoners should not arbitrarily be excluded from the program.
To illustrate: Is it not clear that family visits are not to be denied on the ground that an inmate during a visit insists on wearing certain lapel buttons or wants to read and write nonprohibitable correspondence? (Cf. In re Reynolds (1979) 25 Cal.3d 131 [157 Cal.Rptr. 892, 599 P.2d 86]; In re Brandt (1979) 25 Cal.3d 136 [157 Cal.Rptr. 894, 599 P.2d 89].) Rules articulating that kind of restriction would be arbitrary and thus contrary to the aims of section 2600.
[878]Further, we recently reminded state officials that “.. . California courts have repeatedly rejected the argument that because the state is not obligated to provide a general benefit, it may confer such a benefit on a selective basis which excludes certain recipients solely because they seek to exercise a constitutional right.” (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 264 [172 Cal.Rptr. 866, 625 P.2d 779].) The Department of Corrections for several years has accorded the benefits of overnight visiting to the members of traditional and extended families. At the same time may the Department withhold those benefits from members of alternative families—families, that is, who show (using the Department’s own words) “only a common-law relationship”?
In City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 [164 Cal.Rptr. 539, 610 P.2d 436] this court concluded that the city failed to justify its decision to restrict communal living. (Id., at pp. 131-134.) With respect to how many people may reside in one house we held invalid “the distinction effected by the ordinance between (1) an individual or two or more persons related by blood, marriage, or adoption, and (2) groups of more than five other persons.” (Id., p. 134.)
For analogous reasons, and again relying on the guarantee of “privacy” proclaimed in section 1 of article I of the California Constitution, we should hold invalid the distinction effected by section 3174, subdivision (c) of the regulations here between {A) the “immediate family members” identified in subdivision (a) and individuals among whom “a family relationship existed prior to the inmate’s incarceration” (the Department’s words), on the one hand, and {B) those who can show “only a common-law relationship” on the other.
The Attorney General suggests that the Director of Corrections has sensed “a correlation between maintenance of family ties by state prisoners and law abiding conduct after release from prison”; also, that “[t]he purpose of family visiting is to maintain and nourish ties between inmates and their families outside of prison, and thereby to enhance the likelihood of success on parole.” We have searched in vain for evidence that such goals are furthered when families are traditional or extended but not when they are alternative.
The disposition proposed in this opinion would not, of course, effectuate the Attorney General’s dire forecast that the Department will have to provide for. “combinations of unrelated visitors . . . including one or [879]more girlfriends, one or more boyfriends, combinations of girlfriends and boyfriends,, overnight visits with lawyers, investigators, and various combinations of any of the above ....” Nor does the record support the majority’s conclusion that, with respect to alternative families as contrasted with traditional and extended families, “opportunities for abuse ... are obvious, and repeated abuses might well lead authorities to terminate the entire family visitation program .. .. ” (Ante, p. 873.)
On the limited record before us we should not rule that in fact the petitioner is entitled to enjoy family visits. Nonetheless our denial of the petition for habeas corpus should be without prejudice to further requests for visits and administrative action not inconsistent with this opinion.
Tobriner, J.,* concurred.
Petitioner’s application for a rehearing was denied April 15, 1982.
“[A]t least one of every six American babies is born to an unwed mother, new government figures show. [¶] Well over half—55 percent—of all black babies in 1979 were born to unwed mothers. Yet the increase in out-of-wedlock births among teenagers is significantly greater for whites than blacks, according to federal Census and health statistics.” (A.P. dispatch from Washington, S.F. Chronicle, Oct. 26, 1981, p. 4.) “For the first time, married couples make up fewer than three American households out of five, according to new Census Bureau statistics released yesterday.” (Ibid., Nov. 16, 1981, p. 5.)
Cf. U.P. dispatch from Washington, A Revealing Census On Marriage, Divorce, S.F. Chronicle, October 19, 1981, page 8: “The number of unmarried couples tripled between 1970 and 1980, ... rising from 523,000 to 1,560,000 .... [F]or every 10 persons in 1980 who were in an intact marriage, there was one person who was divorced and had not remarried .... Half of the women and two-thirds of the men aged 20 to 24 had not married in 1980, up from 36 percent of the women and 55 percent of the men in 1970. [¶] One of every five children ... lived with only one parent.”
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.