Models of Family Privacy

George Washington Law Review

Volumn 67, Issue 5-6, 1999, Pages 1225-1246

  Cahn, Naomi R ^a  

^a NONE

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EID: 0033274777     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (208)

1. See Naomi R. Cahn, The Moral Complexities of Family Law, 50 STAN. L. REV. 225, 238 n.60 (1997) (reviewing NANCY E. DOWD, IN DEFENSE OF SINGLE PARENT FAMILIES (1997) and BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE (1997)) [hereinafter Cahn, Moral Complexities].
2. See Naomi R. Cahn, The Moral Complexities of Family Law, 50 STAN. L. REV. 225, 238 n.60 (1997) (reviewing NANCY E. DOWD, IN DEFENSE OF SINGLE PARENT FAMILIES (1997) and BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE (1997)) [hereinafter Cahn, Moral Complexities].
3. See Naomi R. Cahn, The Moral Complexities of Family Law, 50 STAN. L. REV. 225, 238 n.60 (1997) (reviewing NANCY E. DOWD, IN DEFENSE OF SINGLE PARENT FAMILIES (1997) and BARBARA DAFOE WHITEHEAD, THE DIVORCE CULTURE (1997)) [hereinafter Cahn, Moral Complexities].
4. For a strong defense of this latter type of privacy, see Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 783-87 (1989).
5. See Martha Albertson Fineman, What Place for Family Privacy?, 67 GEO. WASH. L. REV. 1207 (1999) [hereinafter Fineman, What Place for Family Privacy?]. She seeks to protect decisions by the individual caretaker, including those relating not just to how to raise her children, but also with whom to raise them. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 226-36 (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER].
6. See Martha Albertson Fineman, What Place for Family Privacy?, 67 GEO. WASH. L. REV. 1207 (1999) [hereinafter Fineman, What Place for Family Privacy?]. She seeks to protect decisions by the individual caretaker, including those relating not just to how to raise her children, but also with whom to raise them. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 226-36 (1995) [hereinafter FINEMAN, THE NEUTERED MOTHER].
7. Fineman, What Place for Family Privacy?, supra note 3, at 1217.
8. Id. at 1211.
9. Id.
10. See id. at 1221. The problems with a heterosexually-centered definition of privacy have historically involved the exploitation of women as well as the negation of gay relationships. Alternatively, an individually-centered model overlooks both the caretaking work and the bonds that develop within a family or nurturing relationship. See generally EVA FEDER KITTAY, LOVE'S LABOR: ESSAYS ON WOMEN, EQUALITY, AND DEPENDENCY (1999).
11. To some extent, then, it is incoherent to discuss state intervention as the opposite of autonomy. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reforms, 96 HARV. L. REV. 1497, 1504-07 (1983); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L. REFORM 835, 842-44 (1985); see also Wendy Brown, The Pleasures and Freedoms of Silence, 3 U. CHI. L. SCH. ROUNDTABLE 185, 186 (1996) (discussing how attempts at claiming autonomy by marginalized or disenfranchised societal groups have permitted the dominant society to colonize them); Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 15-16 (1992) (exploring the relationship between private entities and the public norms and laws which create them).
12. To some extent, then, it is incoherent to discuss state intervention as the opposite of autonomy. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reforms, 96 HARV. L. REV. 1497, 1504-07 (1983); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L. REFORM 835, 842-44 (1985); see also Wendy Brown, The Pleasures and Freedoms of Silence, 3 U. CHI. L. SCH. ROUNDTABLE 185, 186 (1996) (discussing how attempts at claiming autonomy by marginalized or disenfranchised societal groups have permitted the dominant society to colonize them); Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 15-16 (1992) (exploring the relationship between private entities and the public norms and laws which create them).
13. To some extent, then, it is incoherent to discuss state intervention as the opposite of autonomy. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reforms, 96 HARV. L. REV. 1497, 1504-07 (1983); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L. REFORM 835, 842-44 (1985); see also Wendy Brown, The Pleasures and Freedoms of Silence, 3 U. CHI. L. SCH. ROUNDTABLE 185, 186 (1996) (discussing how attempts at claiming autonomy by marginalized or disenfranchised societal groups have permitted the dominant society to colonize them); Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 15-16 (1992) (exploring the relationship between private entities and the public norms and laws which create them).
14. To some extent, then, it is incoherent to discuss state intervention as the opposite of autonomy. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reforms, 96 HARV. L. REV. 1497, 1504-07 (1983); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L. REFORM 835, 842-44 (1985); see also Wendy Brown, The Pleasures and Freedoms of Silence, 3 U. CHI. L. SCH. ROUNDTABLE 185, 186 (1996) (discussing how attempts at claiming autonomy by marginalized or disenfranchised societal groups have permitted the dominant society to colonize them); Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 15-16 (1992) (exploring the relationship between private entities and the public norms and laws which create them).
15. See Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & PUB. POL'Y 419, 440 (1995) (describing "'conventional' privacy . . . in the familiar senses of physical seclusion, solitude, anonymity, secrecy, and confidentiality" and "'decisional privacy' . . . as the liberty, freedom or autonomy to make choices about one's own life, minimally constrained by unwanted government or other outside interference").
16. See Isaiah Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 122-34 (1969).
17. See DeShaney v. Winnebago County Dep't of Soc. Servs., 812 F.2d 298, 301 (7th Cir. 1987), aff'd, 489 U.S. 189 (1989); Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271, 2273-78 (1990); see also Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. REV. 1665, 1666-71 (1990) (discussing the treatment of the state's conduct in DeShaney by the majority and dissent as inaction and action respectively). Cf. ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT 33 (1994) (arguing that the Fourteenth Amendment provides a positive right or liberty to protection from private violence). Thanks to Jana Singer for her formulation of ideas concerning the Constitution and its vision(s) of liberty.
18. See DeShaney v. Winnebago County Dep't of Soc. Servs., 812 F.2d 298, 301 (7th Cir. 1987), aff'd, 489 U.S. 189 (1989); Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271, 2273-78 (1990); see also Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. REV. 1665, 1666-71 (1990) (discussing the treatment of the state's conduct in DeShaney by the majority and dissent as inaction and action respectively). Cf. ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT 33 (1994) (arguing that the Fourteenth Amendment provides a positive right or liberty to protection from private violence). Thanks to Jana Singer for her formulation of ideas concerning the Constitution and its vision(s) of liberty.
19. See DeShaney v. Winnebago County Dep't of Soc. Servs., 812 F.2d 298, 301 (7th Cir. 1987), aff'd, 489 U.S. 189 (1989); Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271, 2273-78 (1990); see also Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. REV. 1665, 1666-71 (1990) (discussing the treatment of the state's conduct in DeShaney by the majority and dissent as inaction and action respectively). Cf. ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT 33 (1994) (arguing that the Fourteenth Amendment provides a positive right or liberty to protection from private violence). Thanks to Jana Singer for her formulation of ideas concerning the Constitution and its vision(s) of liberty.
20. See Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 888-89 (1987).
21. See Fineman, What Place for Family Privacy?, supra note 3, at 1221.
22. See Jana Singer, The Privatization of Family Law, 1992 Wis L. Rev. 1443, 1444; see also Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 MICH. L. REV. 1803, 1807-08 (1985) (arguing that the locus of moral decision-making has shifted away from the law to the people affected by law).
23. See Jana Singer, The Privatization of Family Law, 1992 Wis L. Rev. 1443, 1444; see also Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 MICH. L. REV. 1803, 1807-08 (1985) (arguing that the locus of moral decision-making has shifted away from the law to the people affected by law).
24. Autonomy and family can conflict when an individual family member seeks to assert her rights "against" or outside of the family. See Naomi Cahn & Jana Singer, Adoption, Identity and the Constitution: The Case for Opening Closed Records, 2 U. PA. CONST. L.J. (forthcoming 1999); Catherine Ross, Toward an Emerging Right of Minors to Receive Information, 2 U. PA. J. CONST. L. (forthcoming 1999); infra notes 143-145.
25. Autonomy and family can conflict when an individual family member seeks to assert her rights "against" or outside of the family. See Naomi Cahn & Jana Singer, Adoption, Identity and the Constitution: The Case for Opening Closed Records, 2 U. PA. CONST. L.J. (forthcoming 1999); Catherine Ross, Toward an Emerging Right of Minors to Receive Information, 2 U. PA. J. CONST. L. (forthcoming 1999); infra notes 143-145.
26. Dean Lee Teitelbaum asserts that "the very form of discourse about family law has changed. . . . [One of the two major developments] is a change in the location of responsibility from the law itself to the individuals whom law once regulated." Lee E. Teitelbaum, The Last Decade(s) of American Family Law, 46 J. LEGAL EDUC. 546, 547 (1996). See generally Lee E. Teitelbaum, The Family as a System: A Preliminary Sketch, 1996 UTAH L. REV. 537 (critiquing the move towards privatization and suggesting a reconceptualization of the family as an ongoing and contextualized relationship within the greater society).
27. Dean Lee Teitelbaum asserts that "the very form of discourse about family law has changed. . . . [One of the two major developments] is a change in the location of responsibility from the law itself to the individuals whom law once regulated." Lee E. Teitelbaum, The Last Decade(s) of American Family Law, 46 J. LEGAL EDUC. 546, 547 (1996). See generally Lee E. Teitelbaum, The Family as a System: A Preliminary Sketch, 1996 UTAH L. REV. 537 (critiquing the move towards privatization and suggesting a reconceptualization of the family as an ongoing and contextualized relationship within the greater society).
28. See Meister v. Moore, 96 U.S. 76, 78 (1877); see also Lynn D. Wardle, Loving v. Virginia and the Constitutional Right to Marry, 1790-1990, 41 How. L.J. 289, 292 (1998) (discussing the Meister decision).
29. See Meister v. Moore, 96 U.S. 76, 78 (1877); see also Lynn D. Wardle, Loving v. Virginia and the Constitutional Right to Marry, 1790-1990, 41 How. L.J. 289, 292 (1998) (discussing the Meister decision).
30. In mainstream religious theory in the late seventeenth century, "[s]o important was this family society, established by nature, that it enjoyed to some extent a sovereignty over which the state had no control." RICHARD B. SCHLATTER, THE SOCIAL IDEAS OF RELIGIOUS LEADERS 1660-1688, at 7 (Octagon Books 1971) (1940); see also id. at v (explaining that the clergy served as intellectual leaders).
31. See Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 WM. & MARY L. REV. 145, 151, 166 (1998).
32. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
33. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
34. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
35. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
36. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
37. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
38. Many people have, with varying levels of approval, documented the increasing privatization of family law, and the corresponding power of individuals to enter into contracts with respect to issues that were formerly a matter solely of domestic relations law. See MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implications of a contractual trend); Janet L. Dolgin, The Family in Transition from Griswold and Eisenstadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition ] (exploring the relationship between the development of the right to privacy and the privatization of family law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual trend).
39. See Marvin v. Marvin, 557 P.2d 106, 116, 122 (Cal. 1976); Watts v. Watts, 405 N.W.2d 303, 313-15 (Wis. 1987). But see Hewitt v. Hewitt, 394 N.E.2d 1204, 1211 (III. 1979) (refusing to enforce implied cohabitation contract on public policy grounds).
40. See Bix, supra note 19, at 153 n.28.
41. See Robert H. Mnookin et al., Private Ordering Revisited: What Custodial Arrangements are Parents Negotiating?, in DIVORCE REFORM AT THE CROSSROADS 37, 67 (Stephen D. Sugarman & Herma Hill Kay eds., 1990).
42. See Barbara Bennett Woodhouse, Towards a Revitalization of Family Law, 69 Tex. L. Rev. 245, 277 (1990) (reviewing MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989)).
43. See Barbara Bennett Woodhouse, Towards a Revitalization of Family Law, 69 Tex. L. Rev. 245, 277 (1990) (reviewing MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989)).
44. See Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 736-37, 743-44 (1996). Ariela Dubler argues that judges in the late nineteenth century used the doctrine of common law marriage to privatize dependence. See Ariela R. Dubler, Note, Governing Through Contract: Common Law Marriage in the Nineteenth Century, 107 YALE L.J. 1885, 1886-87 (1998).
45. See Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 736-37, 743-44 (1996). Ariela Dubler argues that judges in the late nineteenth century used the doctrine of common law marriage to privatize dependence. See Ariela R. Dubler, Note, Governing Through Contract: Common Law Marriage in the Nineteenth Century, 107 YALE L.J. 1885, 1886-87 (1998).
46. Cf. JOHN STUART MILL, ON LIBERTY 175-76 (Gertrude Himmelfarb ed., Penguin Books 1974) (1859) (observing the reluctance of the law to interfere with a parent's control over a child, but arguing that perhaps liberty should be withheld in order to compel parents to educate their children); Jane C. Murphy, Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law, 61 U. PITT. L. REV. (forthcoming 1999).
47. Cf. JOHN STUART MILL, ON LIBERTY 175-76 (Gertrude Himmelfarb ed., Penguin Books 1974) (1859) (observing the reluctance of the law to interfere with a parent's control over a child, but arguing that perhaps liberty should be withheld in order to compel parents to educate their children); Jane C. Murphy, Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law, 61 U. PITT. L. REV. (forthcoming 1999).
48. See Fineman, What Place for Family Privacy?, supra note 3, at 1221.
49. See Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 YALE J.L. & FEMINISM 3, 11-13 (1999); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 74-75 (1991); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2118, 2190-2206 (1996) [hereinafter Siegel, "The Rule of Love"]. On the other hand, there remain vestiges of this concept of privacy in the domestic violence context. See Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 983-85 (1991) (discussing how concepts of noninterference have allowed domestic violence); Siegel, supra.
50. See Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 YALE J.L. & FEMINISM 3, 11-13 (1999); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 74-75 (1991); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2118, 2190-2206 (1996) [hereinafter Siegel, "The Rule of Love"]. On the other hand, there remain vestiges of this concept of privacy in the domestic violence context. See Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 983-85 (1991) (discussing how concepts of noninterference have allowed domestic violence); Siegel, supra.
51. See Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 YALE J.L. & FEMINISM 3, 11-13 (1999); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 74-75 (1991); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2118, 2190-2206 (1996) [hereinafter Siegel, "The Rule of Love"]. On the other hand, there remain vestiges of this concept of privacy in the domestic violence context. See Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 983-85 (1991) (discussing how concepts of noninterference have allowed domestic violence); Siegel, supra.
52. See Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 YALE J.L. & FEMINISM 3, 11-13 (1999); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1, 74-75 (1991); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2118, 2190-2206 (1996) [hereinafter Siegel, "The Rule of Love"]. On the other hand, there remain vestiges of this concept of privacy in the domestic violence context. See Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 983-85 (1991) (discussing how concepts of noninterference have allowed domestic violence); Siegel, supra.
53. See infra notes 116-126 and accompanying text (discussing Wyman v. James, 400 U.S. 309 (1971)); see also Catherine Ross & Naomi Cahn, Subsidy for Caretaking: Lessons from Foster Care, 8 AM. U. J. GENDER SOC. POLY & L. (forthcoming 1999). Of course, the receipt of public welfare has always been intertwined with the loss of both privacy and autonomy. See MATTHEW A. CRENSON, BUILDING THE INVISIBLE ORPHANAGE: A PREHISTORY OF THE AMERICAN WELFARE SYSTEM 29 (1998); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES 466-79 (1992).
54. See infra notes 116-126 and accompanying text (discussing Wyman v. James, 400 U.S. 309 (1971)); see also Catherine Ross & Naomi Cahn, Subsidy for Caretaking: Lessons from Foster Care, 8 AM. U. J. GENDER SOC. POLY & L. (forthcoming 1999). Of course, the receipt of public welfare has always been intertwined with the loss of both privacy and autonomy. See MATTHEW A. CRENSON, BUILDING THE INVISIBLE ORPHANAGE: A PREHISTORY OF THE AMERICAN WELFARE SYSTEM 29 (1998); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES 466-79 (1992).
55. See infra notes 116-126 and accompanying text (discussing Wyman v. James, 400 U.S. 309 (1971)); see also Catherine Ross & Naomi Cahn, Subsidy for Caretaking: Lessons from Foster Care, 8 AM. U. J. GENDER SOC. POLY & L. (forthcoming 1999). Of course, the receipt of public welfare has always been intertwined with the loss of both privacy and autonomy. See MATTHEW A. CRENSON, BUILDING THE INVISIBLE ORPHANAGE: A PREHISTORY OF THE AMERICAN WELFARE SYSTEM 29 (1998); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES 466-79 (1992).
56. Family law has traditionally been an area of state prerogative. See Ankenbrandt v. Richards, 504 U.S. 689, 694-701 (1992); Naomi R. Cahn, Family Law, Federalism, and the Federal Courts, 79 IOWA L. REV. 1073, 1081-87 (1994); Anne C. Dailey, Federalism and Families, 143 U. PENN. L. REV. 1787, 1790 (1995); Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1739-50 (1991). Nonetheless, the Supreme Court has established the parameters of constitutional privacy. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997); Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986).
57. Family law has traditionally been an area of state prerogative. See Ankenbrandt v. Richards, 504 U.S. 689, 694-701 (1992); Naomi R. Cahn, Family Law, Federalism, and the Federal Courts, 79 IOWA L. REV. 1073, 1081-87 (1994); Anne C. Dailey, Federalism and Families, 143 U. PENN. L. REV. 1787, 1790 (1995); Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1739-50 (1991). Nonetheless, the Supreme Court has established the parameters of constitutional privacy. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997); Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986).
58. Family law has traditionally been an area of state prerogative. See Ankenbrandt v. Richards, 504 U.S. 689, 694-701 (1992); Naomi R. Cahn, Family Law, Federalism, and the Federal Courts, 79 IOWA L. REV. 1073, 1081-87 (1994); Anne C. Dailey, Federalism and Families, 143 U. PENN. L. REV. 1787, 1790 (1995); Judith Resnik, "Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1739-50 (1991). Nonetheless, the Supreme Court has established the parameters of constitutional privacy. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997); Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986).
59. Fineman, What Place For Family Privacy?, supra note 3, at 1212.
60. id. at 1214.
61. This includes both the right to marry and the privacy that attaches to an existing marital relationship. See id. at 1213.
62. The form of privacy that involves sexual decision-making overlaps with the other two forms of privacy because Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965), talked about the private decision of married couples on whether to use contraceptives, and Turner v. Safley, 482 U.S. 78, 95-99 (1987), Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978), and Loving v. Virginia, 388 U.S. 1, 12 (1967), talked about an individual's right to marry whom she chooses.
63. A third type of marital relationship privacy involves the spousal testimonial privilege. See MILTON C. REGAN, JR., ALONE TOGETHER: LAW AND THE MEANINGS OF MARRIAGE 89-135 (1999).
64. Professor Fineman uses McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1995), to show the extremely private nature of intrafamilial decisionmaking. See Fineman, What Place for Family Privacy?, supra note 3, at 1214-15.
65. See Loving, 388 U.S. at 12. For further discussion of the earlier cases, see Jerome A. Barron, The Constitutionalization of American Family Law: The Case of the Right to Marry, in CROSS-CURRENTS: FAMILY LAW IN ENGLAND AND THE UNITED STATES SINCE 1945 (John Gekelaar & Sanford Tate eds., forthcoming 2000); Wardle, supra note 17, at 290-302.
66. See Loving, 388 U.S. at 12. For further discussion of the earlier cases, see Jerome A. Barron, The Constitutionalization of American Family Law: The Case of the Right to Marry, in CROSS-CURRENTS: FAMILY LAW IN ENGLAND AND THE UNITED STATES SINCE 1945 (John Gekelaar & Sanford Tate eds., forthcoming 2000); Wardle, supra note 17, at 290-302.
67. See Loving, 388 U.S. at 12; Zablocki, 434 U.S. at 386-87; Turner, 482 U.S at 94-99; see also Wardle, supra note 17, at 341-42 (noting the fundamental nature of marriage and discussing the applicable level of scrutiny).
68. See, e.g., Baehr v. Lewin, 852 P.2d 44, 60, 67-68 (Haw. 1993); WILLIAM M. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 132 (1996); E.J. GRAFF, WHAT is MARRIAGE FOR? (1999); William M. Hohengarten, Note, Same-Sex Marriage and the Right of Privacy, 103 YALE L.J. 1495, 1496 (1994).
69. See, e.g., Baehr v. Lewin, 852 P.2d 44, 60, 67-68 (Haw. 1993); WILLIAM M. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 132 (1996); E.J. GRAFF, WHAT is MARRIAGE FOR? (1999); William M. Hohengarten, Note, Same-Sex Marriage and the Right of Privacy, 103 YALE L.J. 1495, 1496 (1994).
70. See, e.g., Baehr v. Lewin, 852 P.2d 44, 60, 67-68 (Haw. 1993); WILLIAM M. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 132 (1996); E.J. GRAFF, WHAT is MARRIAGE FOR? (1999); William M. Hohengarten, Note, Same-Sex Marriage and the Right of Privacy, 103 YALE L.J. 1495, 1496 (1994).
71. 116 U.S. 55 (1885), vacated on jurisdictional grounds, 118 U.S. 355 (1886). Prior to 1900, only a limited number of cases mentioned privacy and none was directly concerned with marital privacy. See ICC v. Brimson, 154 U.S. 447, 478-79 (1894) (discussing the importance of privacy regarding governmental invasions into one's life); In re The Strathairly, 124 U.S. 558, 577 (1888) (advocating that each passenger on a vessel is entitled to space and privacy); Boyd v. United States, 116 U.S. 616, 630 (1886) (discussing the importance of privacy regarding governmental seizures of incriminating personal property); Deery v. Cray, 72 U.S. (5 Wall.) 795, 807 (1866) (referring to a state law that provided for the examination of married women); Goesele v. Bimeler, 55 U.S. (14 How.) 589, 603 (1852) (referring to privacy in its explanation of how members of a religious society lived in Europe); Veazie v. Williams, 49 U.S. (8 How.) 134, 156 (1850) (discussing privacy in the offering of auction bids); see also Hill v. Tucker, 54 U.S. 458, 460 (1851) (party's argument refutes the existence of privacy between administrators of an estate); Caldwell v. Taggart, 29 U.S. 190, 194 (1830) (party's argument refers to whether privacy existed in the execution of mortgages); Childress v. Emory, 21 U.S. 642, 650, 656 (1823) (party's argument discusses privacy in the context of cases where a wager of law may or may not be allowed). The concept of the privacy of a man's home was present as early as 1604, and was commented on by Blackstone in the mid-eighteenth century. See Wilson v. Layne, 119 S. Ct. 1692, 1697 (1999) (reaffirming Fourth Amendment protection against unreasonable search and seizure of a home). Interestingly, the Fourth Amendment has not typically served as the primary source for marital or familial privacy, perhaps because the Amendment has typically been construed as protecting space or individuals, and family privacy concerns a relationship. See infra notes 116-126 and accompanying text (discussing Wyman v. James).
72. There is a short biography of Mr. Cannon in Ken Driggs, The Prosecution Begins: Defining Cohabitation in 1885, in DIALOGUE: A JOURNAL OF MORMON THOUGHT, Spring 1988, at 109, 113-14.
73. See Cannon, 116 U.S. at 57. Although Mr. Cannon was charged with cohabitating with two women, he actually had four wives at the time of his prosecution. After his prosecution, he married two additional women. See Driggs, supra note 41, at 114; Kenneth David Driggs, The Mormon Church-State Confrontation in Nineteenth-Century America, 30 J. CHURCH & STATE 273, 282 (1988).
74. See Cannon, 116 U.S. at 57. Although Mr. Cannon was charged with cohabitating with two women, he actually had four wives at the time of his prosecution. After his prosecution, he married two additional women. See Driggs, supra note 41, at 114; Kenneth David Driggs, The Mormon Church-State Confrontation in Nineteenth-Century America, 30 J. CHURCH & STATE 273, 282 (1988).
75. See Cannon, 116 U.S. at 69-71.
76. Driggs, supra note 41, at 116.
77. Cannon, 116 U.S. at 66.
78. See United States v. Cannon, 7 P. 369, 380 (Utah 1885).
79. See id. at 378.
80. See Cannon, 116 U.S. at 72 (emphasis added). The Court here echoes its earlier decision, Murphy v. Ramsey, 114 U.S. 15 (1885), in which it declared that a man "might in fact abstain from actual cohabitation with all, and be still as much as ever a bigamist or a polygamist. . . . Cohabitation is but one of the many incidents to the marriage relation. It is not essential to it." Murphy, 114 U.S. at 42. For detailed discussion of mid-nineteenth century opposition to Morman polygamy, see generally Sarah Barringer Gordon, "Our National Hearthstone": Anti-Polygamy Fiction and the Sentimental Campaign Against Moral Diversity in Antebellum America, 8 YALE J.L. & HUMAN. 295 (1996).
81. See Cannon, 116 U.S. at 63, 71.
82. Neither of the two most famous nineteenth-century marriage cases, Reynolds v. United States, 98 U.S. 145 (1878), nor Maynard v. Hill, 125 U.S. 190 (1888), discussed marital privacy or any related subject. The only context in which privacy is mentioned is "private rights of property" attaching to contracts. See Maynard, 125 U.S. at 210-11. But see Bassett v. United States, 137 U.S. 496, 505-07 (1890) (holding that a wife was not a competent witness against the crime of adultery on the grounds of marital privacy).
83. See Siegel, "The Rule of Love," supra note 28, at 2151-58.
84. See id. at 2166-67. In colonial New England, husbands justified their right to chastise their wives both by their patriarchal control of the family and the privacy of the family. See DAVID H. FLAHERTY, PRIVACY IN COLONIAL NEW ENGLAND 58-59 (1972).
85. See Naomi Cahn, Finding Fault: Narratives of Divorce, 1825-1875, at 32 (unpublished manuscript, on file with The George Washington Law Review).
86. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The right to marry is included in a long list of liberties guaranteed by the Fourteenth Amendment, including the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Id. The derivation of the right to marry appears to be a common law privilege. In Skinner v. Oklahoma, 316 U.S. 535 (1942), the Court observed, "Marriage and procreation are fundamental to the very existence and survival of the race." Id. at 541. See generally Wardle, supra note 17 (observing that the right to marry receives constitutional protection because it is deeply rooted in our nation's history and traditions; it is a natural right; and it is necessary for the ordering of society).
87. 367 U.S. 497, 517, 521 (1961) (Douglas, J., dissenting); id. at 552-53 (Harlan, J., dissenting). Justice Stewart joined both dissents. See id. at 555 (Stewart, J., dissenting). For an extensive discussion of the right to privacy, see DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE v. WADE (1994).
88. See Poe, 367 U.S. at 519-22 (Douglas, J., dissenting); id. at 539 (Harlan, J., dissenting).
89. Justice Harlan refused to find an "absolute" right of privacy, distinguishing the use of contraceptives from "adultery, homosexuality, fornication and incest," which would be subject to criminal prosecution, regardless of where they occurred. See id. at 552 (Douglas, J., dissenting); see also William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 FLA. ST. U. L. REV. 703, 812 (1997).
90. 381 U.S. 479 (1965)
91. See id. at 484-85; see also Dolgin, Family in Transition, supra note 20, at 1536 (discussing Griswold in the context of changing social understandings of family).
92. Griswold, 381 U.S. at 486.
93. Rubenfeld, supra note 2, at 741-42. Professor Rubenfeld also argues that there is a "conceptual vacuum" in defining the constitutional right of privacy because the cases focus on whether there is a fundamental right to perform the proscribed act, rather than on what compliance with the law would impose on an individual. See id. at 739.
94. The Fourth Amendment provides some basis for privacy of the home. See U.S. CONST. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .").
95. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381, 383-84 (1992) (arguing that the distinction between enumerated and unenumerated rights is "bogus," based in part on principles established through the Bill of Rights).
96. See JANET L. DOLGIN, DEFINING THE FAMILY: LAW, TECHNOLOGY, AND REPRODUCTION IN AN UNEASY AGE 41-42 (1997) [hereinafter DOLGIN, DEFINING THE FAMILY].
97. Schlatter points out that, among seventeenth-century clerics, "No one doubted the right of father and mother to control the lives of children. By the law of nature, sons and daughters, since they were the creation of their parents, were the property of their parents." SCHLATTER, supra note 18, at 31.
98. Wisconsin v. Yoder, 406 U.S. 205, 219 (1972) (allowing Amish parents to withdraw children from school after eighth grade); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (protecting, in dicta, parents' rights to educate their children); Meyer v. Nebraska, 262 U.S. 390, 399, 403 (1923) (reversing conviction of teacher who had instructed child in foreign language in violation of Nebraska statute because Fourteenth Amendment protects teacher's liberty to provide such instruction).
99. See Lehr v. Robertson, 463 U.S. 248, 262 (1983); Stanley v. Illinois, 405 U.S. 645, 658 (1972).
100. 431 U.S. 494, 500-06 (1977) (plurality opinion).
101. Meyer, 262 U.S. at 399.
102. Pierce, 268 U.S. at 535.
103. Yoder, 406 U.S. at 213-14.
104. See Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Civil Litigation, 64 FORDHAM L. REV. 1571, 1586 (1996).
105. See Meyer, 262 U.S. at 399.
106. 83 U.S. (16 Wall.) 36 (1873).
107. 118 U.S. 356 (1886).
108. 165 U.S. 578 (1897).
109. 261 U.S. 525 (1923).
110. See Meyer, 262 U.S. at 399. Professor Barbara Woodhouse argues, "None of the cited cases, however, provided any authority for a parental right to control the child, save by analogy to other models of private ownership." Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1088 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]; see also William G. Ross, A Judicial Janus: Meyer v. Nebraska in Historical Perspective, 57 U. CIN. L. REV. 125, 181-82 (1988) (arguing that none of the cases "directly supported the Court's interpretation of the fourteenth amendment as embracing the freedom to . . . marry, establish a home, bring up children or worship since those cases involved economic rights rather than personal rights").
111. See Meyer, 262 U.S. at 399. Professor Barbara Woodhouse argues, "None of the cited cases, however, provided any authority for a parental right to control the child, save by analogy to other models of private ownership." Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 WM. & MARY L. REV. 995, 1088 (1992) [hereinafter Woodhouse, "Who Owns the Child?"]; see also William G. Ross, A Judicial Janus: Meyer v. Nebraska in Historical Perspective, 57 U. CIN. L. REV. 125, 181-82 (1988) (arguing that none of the cases "directly supported the Court's interpretation of the fourteenth amendment as embracing the freedom to . . . marry, establish a home, bring up children or worship since those cases involved economic rights rather than personal rights").
112. Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (citation omitted).
113. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). In the 1981 case of Lassiter v. Department of Soc. Servs., 405 U.S. 18 (1981), the Court stated: "This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody and management of his or her children' is an important interest." Id. at 27 (quoting Stanely v. Illinois, 405 U.S. 645, 651 (197)).
114. See Ronald J. Krotoszynski, Jr., Note, Autonomy, Community, and Traditions of Liberty: The Contrast of British and American Privacy Law, 1990 DUKE L.J. 1398, 1436 n.181 ("Pierce and Meyer help illustrate one of the quirks of U.S. privacy jurisprudence at the constitutional level: There is no express guarantee of privacy in the document.").
115. in critiquing the concept of neutral principles, Professor Mark Tushnet suggests this as one of several possible interpretations of the cases. See Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 815 (1983). In a case to be argued this term, the Court will once again consider the privacy rights of an intact family. See Troxel v. Granville, 969 P.2d 21 (Wash. 1998), cert. granted, 120 S. Ct. 11 (1999). Troxel concerns the rights of parents to prevent third parties from receiving visitation rights with their children. See id. at 23.
116. See Michael H. v. Gerald D., 491 U.S. 110, 128-29 (1989); Lehr v. Robertson, 463 U.S. 248, 262 (1983); Stanley v. Illinois, 405 U.S. 645, 658 (1972); Naomi Cahn, Reframing Child Custody Decisionmaking, 58 OHIO STATE L.J. 1, 32-35 (1997) [hereinafter Cahn, Reframing]; Janet Dolgin, Just a Gene: Judicial Assumptions About Parenthood, 40 UCLA L. REV. 637, 671 (1993) [hereinafter Dolgin, Just a Gene].
117. See Michael H. v. Gerald D., 491 U.S. 110, 128-29 (1989); Lehr v. Robertson, 463 U.S. 248, 262 (1983); Stanley v. Illinois, 405 U.S. 645, 658 (1972); Naomi Cahn, Reframing Child Custody Decisionmaking, 58 OHIO STATE L.J. 1, 32-35 (1997) [hereinafter Cahn, Reframing]; Janet Dolgin, Just a Gene: Judicial Assumptions About Parenthood, 40 UCLA L. REV. 637, 671 (1993) [hereinafter Dolgin, Just a Gene].
118. The discussion of the concerned father cases is adopted from Cahn, Reframing, supra note 83.
119. See Stanley, 405 U.S. at 658.
120. See id. at 646. In Santosky v. Kramer, 455 U.S. 745 (1982), the Court later held that, in a termination of parental rights proceeding, a state must prove by clear and convincing evidence its allegations against the parents. See id. at 768-70. The previous term, however, the Court had held that there was no constitutional right to the appointment of counsel at hearings on the termination of parental rights. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-32 (1981).
121. 434 U.S. 246 (1978)
122. See id. at 255 (opinion by Marshall, J.).
123. See id.; DOLGIN, DEFINING THE FAMILY, supra note 64, at 105-06. Indeed, the child wanted to continue visitation with his natural father and also to be adopted by his mother's husband. See Quillion, 434 U.S. at 251 & n.11. Interestingly enough, in Michael H. v. Gerald D., 491 U.S. 110 (1989), see discussion infra notes 91-94 and accompanying text, the child also wanted to continue her relationship with her biological father. See Michael H., 491 U.S. at 130-31 (plurality opinion).
124. See Caban v. Mohammed, 441 U.S. 380, 392-93 (1979); DOLGIN, DEFINING THE FAMILY, supra note 64, at 105-06.
125. See Michael H., 491 U.S. at 129-30.
126. See id. at 114.
127. See id. at 115-16.
128. See id. at 129-30 (plurality opinion).
129. See Lehr v. Robertson, 463 U.S. 248, 262 (1983); Caban, 441 U.S. at 392-93; Stanley v. Illinois, 405 U.S. 645, 658 (1972); see also Smith v. Organization of Foster Families, 431 U.S. 816, 846 (1977) (recognizing a parent's liberty interest deriving from "blood relationship, state-law sanction, and basic human right[s]").
130. See Michael H., 491 U.S. at 124 (plurality opinion); Dolgin, Just a Gene, supra note 83; see also Nancy Dowd, Stigmatizing Single Parents, 18 HARV. WOMEN'S L.J. 19, 51-52 (1995) (discussing the many different ways in which the law favors the nuclear family).
131. See Michael H., 491 U.S. at 124 (plurality opinion); Dolgin, Just a Gene, supra note 83; see also Nancy Dowd, Stigmatizing Single Parents, 18 HARV. WOMEN'S L.J. 19, 51-52 (1995) (discussing the many different ways in which the law favors the nuclear family).
132. See DOLGIN, DEFINING THE FAMILY, supra note 64, at 118. Professor Dolgin notes that the cases "delineate three factors that make an unwed man a father. These are the man's biological relation to his child; his social relation to the child; and his relation to the child's mother." Id.
133. 431 U.S. 494 (1977).
134. Id. at 504.
135. 316 U.S. 535 (1942).
136. See Planned Parenthood v. Casey, 505 U.S. 833, 887-98 (1992); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972); Skinner, 316 U.S. at 541.
137. Because these cases concern sexual privacy, I believe there has been a focus both in the case law and commentary on individual autonomy, rather than on familial decision-making. See Anne C. Dailey, Constitutional Privacy and the Just Family, 67 TUL. L. REV. 955, 963 (1993) (observing a tension at the center of privacy doctrine between the rights of individuals and the rights of families). She advocates a theory of family justice which recognizes that "the government necessarily plays a role in the formation and maintenance of family life" and argues that "this role must nevertheless be limited by the government's responsibility to sustain family lives compatible with a liberal democratic order." Id. at 960.
138. See Harris v. McRae, 448 U.S. 297, 306-18 (1980); HELENA MICHIE & NAOMI R. CAHN, CONFINEMENTS: FERTILITY AND INFERTILITY IN CONTEMPORARY CULTURE 140-41 (1997); Susan Frelich Appleton, Standards for Constitutional Review of Privacy - Invading Welfare Reform: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test, 49 VAND. L. REV. 1, 13-24 (1996); Lucy A. Williams, The Ideology of Division: Behavior Modification Welfare Reform Proposals, 102 YALE L.J. 719, 736-41 (1992).
139. See Harris v. McRae, 448 U.S. 297, 306-18 (1980); HELENA MICHIE & NAOMI R. CAHN, CONFINEMENTS: FERTILITY AND INFERTILITY IN CONTEMPORARY CULTURE 140-41 (1997); Susan Frelich Appleton, Standards for Constitutional Review of Privacy - Invading Welfare Reform: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test, 49 VAND. L. REV. 1, 13-24 (1996); Lucy A. Williams, The Ideology of Division: Behavior Modification Welfare Reform Proposals, 102 YALE L.J. 719, 736-41 (1992).
140. See Harris v. McRae, 448 U.S. 297, 306-18 (1980); HELENA MICHIE & NAOMI R. CAHN, CONFINEMENTS: FERTILITY AND INFERTILITY IN CONTEMPORARY CULTURE 140-41 (1997); Susan Frelich Appleton, Standards for Constitutional Review of Privacy - Invading Welfare Reform: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test, 49 VAND. L. REV. 1, 13-24 (1996); Lucy A. Williams, The Ideology of Division: Behavior Modification Welfare Reform Proposals, 102 YALE L.J. 719, 736-41 (1992).
141. See FINEMAN, THE NEUTERED MOTHER, supra note 3, at 228. She states, "we should abolish marriage as a legal category and with it any privilege based on sexual affiliation. . . . There would be no special legal rules governing the relationships between husband and wife . . . ." Id. at 228-29.
142. For discussion of the impact of this proposal, see Barbara Bennett Woodhouse, The Dark Side of Family Privacy, 67 GEO. WASH L. REV. 1247 (1999) [hereinafter Woodhouse, The Dark Side of Family Privacy].
143. See Katharine K. Baker, Taking Care of Our Daughters, 18 CARDOZO L. REV. 1495, 1496 (1997) (reviewing FINEMAN, THE NEUTERED MOTHER, supra note 3).
144. See FINEMAN, THE NEUTERED MOTHER, supra note 3, at 232-33; Fineman, What Place for Family Privacy?, supra note 3, at 1221-22.
145. See FINEMAN, THE NEUTERED MOTHER, supra note 3, at 232-33; Fineman, What Place for Family Privacy?, supra note 3, at 1221-22.
146. Martha Albertson Fineman, Intimacy Outside of the Natural Family: The Limits of Privacy, 23 CONN. L. REV. 955, 955-56 (1991).
147. See supra notes 35-94 and accompanying text.
148. See Woodhouse, "Who Owns the Child?," supra note 78, at 1113-17 (discussing this problem with respect to children's rights).
149. Robert Park, Handout for Law of Privacy Seminar 1 (Jan. 11, 1999) (on file with The George Washington Law Review).
150. See Fineman, What Place for Family Privacy?, supra note 3, at 1212-13 (citing Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965)).
151. Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977) (plurality opinion).
152. See Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972).
153. Dailey, supra note 102, at 1021.
154. 400 U.S. 309 (1971). For a similar discussion of the implications of James, see Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642, 1719-21 (1998).
155. See Wyman, 400 U.S. at 313-14.
156. See James v. Goldberg, 303 F. Supp. 935, 938 (S.D.N.Y. 1969).
157. See Wyman, 400 U.S. at 312 nn.3-4.
158. See id. at 312 n.4.
159. See id. at 313-14, 326.
160. See id. at 317.
161. See id. at 318.
162. See id. at 326.
163. See id. at 338 (Marshall, J., dissenting).
164. Id. at 341-42 (Marshall, J., dissenting). Professor Katharine Baker notes that "[t]he justification for affording single mothers less protection - i.e., that their individual claims to privacy are diminished by their dependence on the state - cannot withstand scrutiny." Baker, supra note 106, at 1504.
165. See Michael Grossberg, Some Queries about Privacy and Constitutional Rights, 41 CASE W. RES. L. REV. 857, 861 (1991) (discussing briefly the class-based nature of Wyman). Professor Grossberg argues, more generally, that "[p]rivacy rights have never been uniformly granted but have varied according to age, sex, race, marital status, political beliefs, religious practices, and residence." Id. at 862. In an earlier book, Professor Fineman queried why single mothers -particularly poor and divorced mothers - were excluded from the protections of privacy. See FINEMAN, THE NEUTERED MOTHER, supra note 3, at 180, 189-90.
166. See Michael Grossberg, Some Queries about Privacy and Constitutional Rights, 41 CASE W. RES. L. REV. 857, 861 (1991) (discussing briefly the class-based nature of Wyman). Professor Grossberg argues, more generally, that "[p]rivacy rights have never been uniformly granted but have varied according to age, sex, race, marital status, political beliefs, religious practices, and residence." Id. at 862. In an earlier book, Professor Fineman queried why single mothers - particularly poor and divorced mothers - were excluded from the protections of privacy. See FINEMAN, THE NEUTERED MOTHER, supra note 3, at 180, 189-90.
167. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn, Subsidy for Caretaking, supra note 29; Williams, supra note 103, at 721-25. For one of the most famous articulations of this concept, see generally Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN. L. REV. 257 (1964), 16 STAN. L. REV. 900 (1964), 17 STAN. L. REV. 614 (1965).
168. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn, Subsidy for Caretaking, supra note 29; Williams, supra note 103, at 721-25. For one of the most famous articulations of this concept, see generally Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN. L. REV. 257 (1964), 16 STAN. L. REV. 900 (1964), 17 STAN. L. REV. 614 (1965).
169. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn, Subsidy for Caretaking, supra note 29; Williams, supra note 103, at 721-25. For one of the most famous articulations of this concept, see generally Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN. L. REV. 257 (1964), 16 STAN. L. REV. 900 (1964), 17 STAN. L. REV. 614 (1965).
170. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn, Subsidy for Caretaking, supra note 29; Williams, supra note 103, at 721-25. For one of the most famous articulations of this concept, see generally Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN. L. REV. 257 (1964), 16 STAN. L. REV. 900 (1964), 17 STAN. L. REV. 614 (1965).
171. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn, Subsidy for Caretaking, supra note 29; Williams, supra note 103, at 721-25. For one of the most famous articulations of this concept, see generally Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN. L. REV. 257 (1964), 16 STAN. L. REV. 900 (1964), 17 STAN. L. REV. 614 (1965).
172. See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95 MICH. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn, Subsidy for Caretaking, supra note 29; Williams, supra note 103, at 721-25. For one of the most famous articulations of this concept, see generally Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN. L. REV. 257 (1964), 16 STAN. L. REV. 900 (1964), 17 STAN. L. REV. 614 (1965).
173. See Cahn, Representing Race, supra note 128, at 972. This was true, regardless of the type of "aid" these mothers received. See generally LINDA GORDON, HEROES OF THEIR OWN LIVES (1988) (describing attempts to impose middle-class norms on poor women who were victims of domestic abuse).
174. See Cahn, Representing Race, supra note 128, at 972. This was true, regardless of the type of "aid" these mothers received. See generally LINDA GORDON, HEROES OF THEIR OWN LIVES (1988) (describing attempts to impose middle-class norms on poor women who were victims of domestic abuse).
175. Virtually all of the custodial parents on TANF are women. In 1993, 4.3 million mothers, compared to 300,000 fathers, were receiving AFDC, the predecessor to TANF. See U.S. Census Bureau, Statistical Brief, Mothers Who Receive AFDC Payments (last revised Feb. 8, 1999) 〈http://www.census.gov/socdemo/www/sb2-95.html〉.
176. See 42 U.S.C. § 608(a)(2)-(3) (Supp. III 1998).
177. See id. § 654(a)(29)(A); Libby S. Adler, Federalism and Family, 8 COLUM. J. GENDER & L. 197, 213-15 (1999).
178. For commentary on this aspect of the opinion, see Louis Michael Seidman, Points of Intersection: Discontinuities at the Junction of Criminal Law and the Regulatory State, 7 J. CONTEMP. LEGAL ISSUES 97, 159 n.277 (1996); Louis Michael Seidman, The Problems with Privacy's Problem, 93 MICH. L. REV. 1079, 1095 n.84 (1995); Monica L. Setter, Comment, Sweeps: An Unwarranted Solution to the Search for Safety in Public Housing, 44 Am. U. L. Rev. 1903, 1924 (1995).
179. For commentary on this aspect of the opinion, see Louis Michael Seidman, Points of Intersection: Discontinuities at the Junction of Criminal Law and the Regulatory State, 7 J. CONTEMP. LEGAL ISSUES 97, 159 n.277 (1996); Louis Michael Seidman, The Problems with Privacy's Problem, 93 MICH. L. REV. 1079, 1095 n.84 (1995); Monica L. Setter, Comment, Sweeps: An Unwarranted Solution to the Search for Safety in Public Housing, 44 Am. U. L. Rev. 1903, 1924 (1995).
180. For commentary on this aspect of the opinion, see Louis Michael Seidman, Points of Intersection: Discontinuities at the Junction of Criminal Law and the Regulatory State, 7 J. CONTEMP. LEGAL ISSUES 97, 159 n.277 (1996); Louis Michael Seidman, The Problems with Privacy's Problem, 93 MICH. L. REV. 1079, 1095 n.84 (1995); Monica L. Setter, Comment, Sweeps: An Unwarranted Solution to the Search for Safety in Public Housing, 44 Am. U. L. Rev. 1903, 1924 (1995).
181. See Colb, supra note 116, at 1922.
182. See Dorothy E. Roberts, The Only Good Poor Woman: Unconstitutional Conditions and Welfare, 72 DENV. U. L. REV. 931, 941-42 (1995).
183. See Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1, 31 (1990).
184. See id.
185. See Fineman, What Place for Family Privacy?, supra note 3, at 1223.
186. See David L. Lewis, Study: Race Gap in Foster Care for Kids, N.Y. DAILY NEWS, June 18, 1998, at 38; Arthur Gregg Sulzberger, Calling for Parents with a Little Extra Love to Go Around, N.Y. AMSTERDAM NEWS, Aug. 27, 1998, at 6.
187. See David L. Lewis, Study: Race Gap in Foster Care for Kids, N.Y. DAILY NEWS, June 18, 1998, at 38; Arthur Gregg Sulzberger, Calling for Parents with a Little Extra Love to Go Around, N.Y. AMSTERDAM NEWS, Aug. 27, 1998, at 6.
188. See FINEMAN, THE NEUTERED MOTHER, supra note 3, at 101-25.
189. See Woodhouse, The Dark Side of Family Privacy, supra note 105, at 1254-55.
190. See id. at 1258-59.
191. For a discussion of the importance and ambiguity of rights, see Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301, 305-07 (1987); Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 252-55 (1999); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Form of Status-Enforcing State Action, 49 STAN. L. REV. 111, 117 (1997); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 432-33 (1987); see also Siegel, "The Relief of Love," supra note 28, at 2196-2206 (discussing how controversy over the creation of a new civil rights remedy against violence against women draws on a "discourse of affective privacy").
192. For a discussion of the importance and ambiguity of rights, see Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301, 305-07 (1987); Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 252-55 (1999); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Form of Status-Enforcing State Action, 49 STAN. L. REV. 111, 117 (1997); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 432-33 (1987); see also Siegel, "The Relief of Love," supra note 28, at 2196-2206 (discussing how controversy over the creation of a new civil rights remedy against violence against women draws on a "discourse of affective privacy").
193. For a discussion of the importance and ambiguity of rights, see Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301, 305-07 (1987); Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 252-55 (1999); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Form of Status-Enforcing State Action, 49 STAN. L. REV. 111, 117 (1997); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 432-33 (1987); see also Siegel, "The Relief of Love," supra note 28, at 2196-2206 (discussing how controversy over the creation of a new civil rights remedy against violence against women draws on a "discourse of affective privacy").
194. For a discussion of the importance and ambiguity of rights, see Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301, 305-07 (1987); Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 252-55 (1999); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Form of Status-Enforcing State Action, 49 STAN. L. REV. 111, 117 (1997); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 432-33 (1987); see also Siegel, "The Relief of Love," supra note 28, at 2196-2206 (discussing how controversy over the creation of a new civil rights remedy against violence against women draws on a "discourse of affective privacy").
195. For a discussion of the importance and ambiguity of rights, see Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301, 305-07 (1987); Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 252-55 (1999); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Form of Status-Enforcing State Action, 49 STAN. L. REV. 111, 117 (1997); Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 432-33 (1987); see also Siegel, "The Relief of Love," supra note 28, at 2196-2206 (discussing how controversy over the creation of a new civil rights remedy against violence against women draws on a "discourse of affective privacy").
196. See, e.g., Martha Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 HARV. WOMEN'S L.J. 1, 6 (1986); Ross, supra note 72, at 1578, 1587-88. Professor Katherine Federle argues that to provide sufficient respect to children's rights, we must not only treat children as a party to any dispute that affects them, but also appoint counsel for them to ensure adequate representation. See Katherine Hunt Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings, 15 CARDOZO L. REV. 1523, 1562-64 (1994).
197. See, e.g., Martha Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 HARV. WOMEN'S L.J. 1, 6 (1986); Ross, supra note 72, at 1578, 1587-88. Professor Katherine Federle argues that to provide sufficient respect to children's rights, we must not only treat children as a party to any dispute that affects them, but also appoint counsel for them to ensure adequate representation. See Katherine Hunt Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings, 15 CARDOZO L. REV. 1523, 1562-64 (1994).
198. See, e.g., Martha Minow, Rights for the Next Generation: A Feminist Approach to Children's Rights, 9 HARV. WOMEN'S L.J. 1, 6 (1986); Ross, supra note 72, at 1578, 1587-88. Professor Katherine Federle argues that to provide sufficient respect to children's rights, we must not only treat children as a party to any dispute that affects them, but also appoint counsel for them to ensure adequate representation. See Katherine Hunt Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings, 15 CARDOZO L. REV. 1523, 1562-64 (1994).
199. See Cahn & Singer, supra note 15, for further discussion of the tension between children's rights and conventional constitutional doctrine. As Professor Eva Kittay points out, it is "useful to distinguish between the inequality of power in a relation and the exertion of domination in a relation of inequality. . . . Domination involves the exercise of power over another against her best interests and for purposes that have no moral legitimacy." KITTAY, supra note 7, at 33-34. As she suggests, however, inequality is not equivalent to domination.
200. See Cahn & Singer, supra note 15, for further discussion of the tension between children's rights and conventional constitutional doctrine. As Professor Eva Kittay points out, it is "useful to distinguish between the inequality of power in a relation and the exertion of domination in a relation of inequality. . . . Domination involves the exercise of power over another against her best interests and for purposes that have no moral legitimacy." KITTAY, supra note 7, at 33-34. As she suggests, however, inequality is not equivalent to domination.
201. See generally Naomi Cahn, Policing Women's Bodies: Moral Arguments and the Dilemma of Criminalization, 49 DEPAUL L. REV. (forthcoming 2000).
202. For further discussion of these issues, see Naomi Cahn, Children's Interests in a Familial Context: Poverty, Foster Care, and Adoption, 60 OHIO ST. L.J. (forthcoming 1999); Ross & Cahn, supra note 29.
203. For further discussion of these issues, see Naomi Cahn, Children's Interests in a Familial Context: Poverty, Foster Care, and Adoption, 60 OHIO ST. L.J. (forthcoming 1999); Ross & Cahn, supra note 29.
204. See Fineman, What Place for Family Privacy?, supra note 3, at 1224; see also Roberts, supra note 135, at 945 ("[W]e are left to make an affirmative claim to public assistance for 'private' decisions. Such a claim is incomprehensible under current constitutional doctrine because of the barrier it has erected between public and private domains. . . . [W]e must challenge this wall of constitutional thinking.").
205. See Fineman, What Place for Family Privacy?, supra note 3, at 1224; see also Roberts, supra note 135, at 945 ("[W]e are left to make an affirmative claim to public assistance for 'private' decisions. Such a claim is incomprehensible under current constitutional doctrine because of the barrier it has erected between public and private domains. . . . [W]e must challenge this wall of constitutional thinking.").
206. As Professor Dorothy Roberts has written, "[a] truly democratic society has the obligation to provide its members with the prerequisites of political participation." Roberts, supra note 135, at 948.
207. See Woodhouse, The Dark Side of Family Privacy, supra note 105, at 1261.
208. See id. at 1256-57.