The Dark Side of Family Privacy

George Washington Law Review

Volumn 67, Issue 5-6, 1999, Pages 1247-1262

  Woodhouse, Barbara Bennett ^a  

^a NONE

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EID: 0033263801     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (87)

1. In addition to countless law review articles and book chapters, Fineman has published two path-breaking books: MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991) and MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER]. She has also been the guiding spirit behind numerous collections of essays growing out of a series of feminist legal theory symposia that she has organized through out the past decade. See AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991); FEMINISM, MEDIA, AND THE LAW (Martha Albertson Fineman & Martha T. McCluskey eds., 1997); MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD (Martha Albertson Fineman & Isabel Karpin eds., 1995); THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).
2. In addition to countless law review articles and book chapters, Fineman has published two path-breaking books: MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991) and MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER]. She has also been the guiding spirit behind numerous collections of essays growing out of a series of feminist legal theory symposia that she has organized through out the past decade. See AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991); FEMINISM, MEDIA, AND THE LAW (Martha Albertson Fineman & Martha T. McCluskey eds., 1997); MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD (Martha Albertson Fineman & Isabel Karpin eds., 1995); THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).
3. In addition to countless law review articles and book chapters, Fineman has published two path-breaking books: MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991) and MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER]. She has also been the guiding spirit behind numerous collections of essays growing out of a series of feminist legal theory symposia that she has organized through out the past decade. See AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991); FEMINISM, MEDIA, AND THE LAW (Martha Albertson Fineman & Martha T. McCluskey eds., 1997); MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD (Martha Albertson Fineman & Isabel Karpin eds., 1995); THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).
4. In addition to countless law review articles and book chapters, Fineman has published two path-breaking books: MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991) and MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER]. She has also been the guiding spirit behind numerous collections of essays growing out of a series of feminist legal theory symposia that she has organized through out the past decade. See AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991); FEMINISM, MEDIA, AND THE LAW (Martha Albertson Fineman & Martha T. McCluskey eds., 1997); MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD (Martha Albertson Fineman & Isabel Karpin eds., 1995); THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).
5. In addition to countless law review articles and book chapters, Fineman has published two path-breaking books: MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991) and MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER]. She has also been the guiding spirit behind numerous collections of essays growing out of a series of feminist legal theory symposia that she has organized through out the past decade. See AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991); FEMINISM, MEDIA, AND THE LAW (Martha Albertson Fineman & Martha T. McCluskey eds., 1997); MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD (Martha Albertson Fineman & Isabel Karpin eds., 1995); THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).
6. In addition to countless law review articles and book chapters, Fineman has published two path-breaking books: MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991) and MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER]. She has also been the guiding spirit behind numerous collections of essays growing out of a series of feminist legal theory symposia that she has organized through out the past decade. See AT THE BOUNDARIES OF LAW: FEMINISM AND LEGAL THEORY (Martha Albertson Fineman & Nancy Sweet Thomadsen eds., 1991); FEMINISM, MEDIA, AND THE LAW (Martha Albertson Fineman & Martha T. McCluskey eds., 1997); MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD (Martha Albertson Fineman & Isabel Karpin eds., 1995); THE PUBLIC NATURE OF PRIVATE VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994).
7. Having experienced the inherent difficulty of this dialogue at The George Washington Law Review symposium, Professor Fineman immediately organized a feminist theory workshop which brought child advocates and feminists together to explore our differences and our commonalities. I thank her for her boundless creative energy and her ability to bring critical perspectives together in a productive and respectful dialogue.
8. 400 U.S. 309 (1971).
9. See Naomi Cahn, Models of Family Privacy, 67 GEO. WASH. L. REV. 1225, 1243 (1999).
10. See Martha Albertson Fineman, What Place for Family Privacy?, 67 GEO. WASH. L. REV. 1207, 1210 (1999).
11. See Barbara Bennett Woodhouse, "It all Depends on What You Mean By Home": Toward a Communitarian Theory of the "Non-Traditional" Family, 1996 UTAH L. REV. 569, 569-72 (1996) (arguing that society needs to support those who act like family by giving nurture and support to dependent members of their households, even if those in the support unit do not fit the traditional nuclear family form).
12. See FINEMAN, THE NEUTERED MOTHER, supra note 1, at 6-9.
13. I have advocated as a part of a "generist perspective," which Fineman discusses in Part IV.B of her article, the notion of "earned parenthood." See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747, 1757 (1993). Parental rights should not be conferred purely based on ties of blood but earned through demonstrated commitment to the nurture of the child. See id. at 1796-1802 (discussing attempts of unmarried biological fathers to block adoption of children for whom they had failed to take responsibility). Like Fineman's focus on the caretaking-dependent unit, this approach redraws the circle of family autonomy along functional lines.
14. Fineman, supra note 5, at 1211.
15. 262 U.S. 390, 399 (1923).
16. 381 U.S. 479, 485-86, 495 (1965) (J. Goldberg, concurring) ("The Connecticut statutes here involved deal with a particularly important and sensitive area of privacy - that of the marital relation and the marital home."); see also Fineman, supra note 5, at 1212.
17. 405 U.S. 438, 453 (1972).
18. See Fineman, supra note 5, at 1218.
19. See id. at 1219.
20. See Anita L. Allen, Privacy at Home: The Twofold Problem, in REVISIONING THE POLITICAL: FEMINIST RECONSTRUCTIONS OF TRADITIONAL CONCEPTS IN WESTERN POLITICAL THEORY 193, 203-04 (Nancy J. Hirschmann & Christine Di Stefano eds., 1996); see also ANITA L. ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 56 (1988).
21. See Anita L. Allen, Privacy at Home: The Twofold Problem, in REVISIONING THE POLITICAL: FEMINIST RECONSTRUCTIONS OF TRADITIONAL CONCEPTS IN WESTERN POLITICAL THEORY 193, 203-04 (Nancy J. Hirschmann & Christine Di Stefano eds., 1996); see also ANITA L. ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 56 (1988).
22. See Anita L. Allen, Coercing Privacy, 40 WM. & MARY L. REV. 723, 728-29 (1999) (arguing that privacy survived feminist criticism but needs to be made a priority).
23. See Fineman, supra note 5, at 1219.
24. Id.
25. Id.
26. See id.
27. See id. at 1220. Fineman discusses my "generist" theory of parenthood, introduced in Hatching the Egg, Woodhouse, supra note 8, and elaborated in Barbara Bennett Woodhouse, Out of Children's Needs, Children's Rights: The Child's Voice in Defining the Family, 8 BYU J. PUB. L. 321 (1994), which would consider parents not as holding rights in their children but as fiduciaries entrusted with their children's care and empowered to care for them. For another exploration of the fiduciary model, see Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401 (1995).
28. See id. at 1220. Fineman discusses my "generist" theory of parenthood, introduced in Hatching the Egg, Woodhouse, supra note 8, and elaborated in Barbara Bennett Woodhouse, Out of Children's Needs, Children's Rights: The Child's Voice in Defining the Family, 8 BYU J. PUB. L. 321 (1994), which would consider parents not as holding rights in their children but as fiduciaries entrusted with their children's care and empowered to care for them. For another exploration of the fiduciary model, see Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401 (1995).
29. See id. at 1220. Fineman discusses my "generist" theory of parenthood, introduced in Hatching the Egg, Woodhouse, supra note 8, and elaborated in Barbara Bennett Woodhouse, Out of Children's Needs, Children's Rights: The Child's Voice in Defining the Family, 8 BYU J. PUB. L. 321 (1994), which would consider parents not as holding rights in their children but as fiduciaries entrusted with their children's care and empowered to care for them. For another exploration of the fiduciary model, see Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 VA. L. REV. 2401 (1995).
30. See Fineman, supra note 5, at 1220.
31. Id.
32. 59 N.W.2d 336 (Neb. 1953). "The living standards of a family are a matter of concern to the household, and not for the courts to determine." Id. at 342; see Fineman, supra note 5, at 1214-15.
33. See Fineman, supra note 5, at 1221.
34. See id. at 1219, 1221.
35. See id. at 1214.
36. See id. at 1217-19 (analyzing the feminist critique of privacy).
37. See, e.g., U.S. v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting). Professor Reva Siegel has traced constitutional privacy to its common law roots in doctrines condoning wife beating. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2121-41 (1996). I have explored the common law roots of the child as property of the parent which led to the constitutionalization of parental rights. See Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1041-50 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]. I have argued that this legacy has retarded the acceptance of children's rights in the United States. See Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on Parents' Rights, 5 GEO. J. FIGHTING POVERTY 313, 313 (1998) (address to symposium at Georgetown University Law Center entitled the United Nations Convention on the Rights of the Child: Benefits to American Children, Effects on American Law); see also Barbara Bennett Woodhouse, Recognizing Children's Rights: Lessons from South Africa, 26 HUM. RTS. 15, 15 (1999) [herinafter Woodhouse, Recognizing Children's Rights]; Barbara Bennett Woodhouse, Constitutional Interpretation and the Re-constitution of the Family in the United States and South Africa, in THE CHANGING FAMILY: INTERNATIONAL PERSPECTIVES ON THE FAMILY AND FAMILY LAW 463, 474-75 (John Eekelaar & Thandabantu Nhlapo eds., 1998).
38. See, e.g., U.S. v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting). Professor Reva Siegel has traced constitutional privacy to its common law roots in doctrines condoning wife beating. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2121-41 (1996). I have explored the common law roots of the child as property of the parent which led to the constitutionalization of parental rights. See Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1041-50 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]. I have argued that this legacy has retarded the acceptance of children's rights in the United States. See Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on Parents' Rights, 5 GEO. J. FIGHTING POVERTY 313, 313 (1998) (address to symposium at Georgetown University Law Center entitled the United Nations Convention on the Rights of the Child: Benefits to American Children, Effects on American Law); see also Barbara Bennett Woodhouse, Recognizing Children's Rights: Lessons from South Africa, 26 HUM. RTS. 15, 15 (1999) [herinafter Woodhouse, Recognizing Children's Rights]; Barbara Bennett Woodhouse, Constitutional Interpretation and the Re-constitution of the Family in the United States and South Africa, in THE CHANGING FAMILY: INTERNATIONAL PERSPECTIVES ON THE FAMILY AND FAMILY LAW 463, 474-75 (John Eekelaar & Thandabantu Nhlapo eds., 1998).
39. See, e.g., U.S. v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting). Professor Reva Siegel has traced constitutional privacy to its common law roots in doctrines condoning wife beating. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2121-41 (1996). I have explored the common law roots of the child as property of the parent which led to the constitutionalization of parental rights. See Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1041-50 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]. I have argued that this legacy has retarded the acceptance of children's rights in the United States. See Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on Parents' Rights, 5 GEO. J. FIGHTING POVERTY 313, 313 (1998) (address to symposium at Georgetown University Law Center entitled the United Nations Convention on the Rights of the Child: Benefits to American Children, Effects on American Law); see also Barbara Bennett Woodhouse, Recognizing Children's Rights: Lessons from South Africa, 26 HUM. RTS. 15, 15 (1999) [herinafter Woodhouse, Recognizing Children's Rights]; Barbara Bennett Woodhouse, Constitutional Interpretation and the Re-constitution of the Family in the United States and South Africa, in THE CHANGING FAMILY: INTERNATIONAL PERSPECTIVES ON THE FAMILY AND FAMILY LAW 463, 474-75 (John Eekelaar & Thandabantu Nhlapo eds., 1998).
40. See, e.g., U.S. v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting). Professor Reva Siegel has traced constitutional privacy to its common law roots in doctrines condoning wife beating. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2121-41 (1996). I have explored the common law roots of the child as property of the parent which led to the constitutionalization of parental rights. See Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1041-50 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]. I have argued that this legacy has retarded the acceptance of children's rights in the United States. See Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on Parents' Rights, 5 GEO. J. FIGHTING POVERTY 313, 313 (1998) (address to symposium at Georgetown University Law Center entitled the United Nations Convention on the Rights of the Child: Benefits to American Children, Effects on American Law); see also Barbara Bennett Woodhouse, Recognizing Children's Rights: Lessons from South Africa, 26 HUM. RTS. 15, 15 (1999) [herinafter Woodhouse, Recognizing Children's Rights]; Barbara Bennett Woodhouse, Constitutional Interpretation and the Re-constitution of the Family in the United States and South Africa, in THE CHANGING FAMILY: INTERNATIONAL PERSPECTIVES ON THE FAMILY AND FAMILY LAW 463, 474-75 (John Eekelaar & Thandabantu Nhlapo eds., 1998).
41. See, e.g., U.S. v. Yazell, 382 U.S. 341, 361 (1966) (Black, J., dissenting). Professor Reva Siegel has traced constitutional privacy to its common law roots in doctrines condoning wife beating. See Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2121-41 (1996). I have explored the common law roots of the child as property of the parent which led to the constitutionalization of parental rights. See Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1041-50 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]. I have argued that this legacy has retarded the acceptance of children's rights in the United States. See Barbara Bennett Woodhouse, From Property to Personhood: A Child-Centered Perspective on Parents' Rights, 5 GEO. J. FIGHTING POVERTY 313, 313 (1998) (address to symposium at Georgetown University Law Center entitled the United Nations Convention on the Rights of the Child: Benefits to American Children, Effects on American Law); see also Barbara Bennett Woodhouse, Recognizing Children's Rights: Lessons from South Africa, 26 HUM. RTS. 15, 15 (1999) [herinafter Woodhouse, Recognizing Children's Rights]; Barbara Bennett Woodhouse, Constitutional Interpretation and the Re-constitution of the Family in the United States and South Africa, in THE CHANGING FAMILY: INTERNATIONAL PERSPECTIVES ON THE FAMILY AND FAMILY LAW 463, 474-75 (John Eekelaar & Thandabantu Nhlapo eds., 1998).
42. See Fineman, supra note 5, at 1209.
43. See McGuire v. McGuire, 59 N.W.2d 336, 342 (Neb. 1953).
44. Id.
45. See, e.g., ALASKA STAT. § 25.15.110 (Michie 1998) (removing civil disabilities from spouses who sue their spouses); FLA. STAT. ch. 741.30 (1997) (providing injunctive protection from abuse); OR. REV. STAT. § 40.255 (1988) (testifying against spouses when they are adverse parties).
46. See, e.g., MICH. COMP. LAWS § 557.28 (1988).
47. 381 U.S. 479, 482-83 (1965).
48. 491 U.S. 110, 123 & n.3 (1989). In Michael H., Justice Scalia coined the phrase "unitary family" to describe a married mother and her husband who sought to defend their family privacy against intrusion by the woman's former lover. See id. The lover wanted to be recognized as the father of her child while the "unitary family" of wife, husband, and child relied on the presumption of the husband's paternity to preserve their family autonomy. See id. at 115.
49. Fineman, supra note 5, at 1222.
50. See George H. Russ, Through the Eyes of a Child, "Gregory K.": A Child's Right to be Heard, 27 Fam. L.Q. 365, 367 (1993).
51. See id. at 367-68.
52. See Kingsley v. Kingsley, 623 So. 2d 780, 783 (Fla. 1993).
53. See id. at 786-87.
54. See generally Claudio DeBellis & Marta B. Soja, Note, Gregory K.: Child Standing in Parental Termination Proceedings and the Implications of the Foster Parent-Foster Child Relationship on the Best Interests Standard, 8 ST. JOHN'S J. LEGAL COMMENT. 501 (1993); Bart L. Greenwald, Note, Irreconcilable Differences: When Children Sue Their Parents for "Divorce," 32 U. LOUISVILLE J. FAM. L. 67 (1993-1994).
55. See generally Claudio DeBellis & Marta B. Soja, Note, Gregory K.: Child Standing in Parental Termination Proceedings and the Implications of the Foster Parent-Foster Child Relationship on the Best Interests Standard, 8 ST. JOHN'S J. LEGAL COMMENT. 501 (1993); Bart L. Greenwald, Note, Irreconcilable Differences: When Children Sue Their Parents for "Divorce," 32 U. LOUISVILLE J. FAM. L. 67 (1993-1994).
56. See, e.g., ALASKA STAT. § 09.55.590 (Michie 1998); CAL. FAM. CODE § 7120-22 (West 1994); NEV. REV. STAT. ANN. § 129.080-120 (Michie 1998).
57. For a study of violence between spouses and the social and cultural explanatory frameworks, such as patriarchy and male hegemony, that justify battering, see Jeffrey Fagan & Angela Browne, Violence Between Spouses and Intimates: Physical Aggression Between Women and Men in Intimate Relationships, in 3 UNDERSTANDING AND PREVENTING VIOLENCE 115 (Albert J. Reiss, Jr. & Jeffrey A. Roth eds., 1994).
58. See Fineman, supra note 5, at 1219.
59. Id. at 1211 n.24.
60. Id. (emphasis added).
61. Id. at 1223.
62. See Korematsu v. United States, 323 U.S. 214, 216 (1944) (establishing strict scrutiny for race-based restrictions); see also Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984) (applying the standard to child custody); Loving v. Virginia, 388 U.S. 1, 9 (1967) (applying the standard to marriage restrictions).
63. See Fineman, supra note 5, at 1222.
64. See id.
65. See id. at 1220.
66. See id. at 1223.
67. See Parental Rights and Responsibilities Act of 1995, H.R. 1946, 104th Cong. § 3(4)(A)(III); Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 31 U. MICH. J.L. REFORM 353, 461-64 (1998); Barbara Bennett Woodhouse, A Public Role in the Private Family: The Parental Rights and Responsibilities Act and the Politics of Child Protection and Education, 57 OHIO ST. L.J. 393, 397 (1996).
68. See Parental Rights and Responsibilities Act of 1995, H.R. 1946, 104th Cong. § 3(4)(A)(III); Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 31 U. MICH. J.L. REFORM 353, 461-64 (1998); Barbara Bennett Woodhouse, A Public Role in the Private Family: The Parental Rights and Responsibilities Act and the Politics of Child Protection and Education, 57 OHIO ST. L.J. 393, 397 (1996).
69. See Suzanne P. O'Grady & Richard D. Birns, Collaboration with the Child Advocate, in YOUNG CHILDREN AND FOSTER CARE 293, 295 (Judith A. Silver et al. eds., 1999) (stating spanking may be difficult to distinguish from abuse, and dietary choices may have devastating health consequences).
70. Fineman, supra note 5, at 1218 n.67.
71. See Catherine Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. PENN. J. CON. LAW (forthcoming Dec. 1999).
72. See Fineman, supra note 5, at 1219-20.
73. See id. at 1222.
74. See Woodhouse, "Who Owns the Child?," supra note 29, at 1049-50.
75. Fineman, supra note 5, at 1223.
76. See Lee E. Teitelbaum, The Family as a System: A Preliminary Sketch, 1996 UTAH L. REV. 537, 544-45.
77. See Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 626-27, 641 (1980).
78. See id. at 653-59.
79. See Woodhouse, supra note 8, at 1812-14.
80. Various European countries provide a non-means tested payment to caretakers of young children. Mary Ann Glendon points out that one reason why European politicians supported development of universal "family allowances" was the activism of "family associations" which lobbied for support for all families, not just those below the poverty line. See Mary Ann Glendon, Individualism and Communitarianism in Contemporary Legal Systems: Tensions and Accomodations, 1993 BYU L. REV. 385, 406.
81. See PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES 236-37 (1997) (showing how the disempowerment of parents during slavery destroyed children's sense of security and inflicted painful conflicts of loyalty and trust).
82. Fineman, supra note 5, at 1222.
83. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 15-3 (2d ed. 1988).
84. Id. § 15-2.
85. See Woodhouse, Recognizing Children's Rights, supra note 29, at 15-16.
86. See Wyman v. James, 400 U.S. 309, 314 (1971).
87. Fineman, supra note 5, at 1224.