The constitutionalization of family law

Family Law Quarterly

Volumn 42, Issue 3, 2008, Pages 529-572

  Meyer, David D ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 69249172061     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (358)

1. See Michael Grossberg, How to Give the Present a Past? Family Law in the United States, 1950-2000, in Cross Currents: Family Law and Policy in the United States and England 3 (Sanford Katz et al. eds., 2000) [hereinafter Cross Currents].
2. Id. at 5, 12 (quoting Katherine L. Caldwell, Not Ozzie and Harriet: Postwar Divorce and the American Liberal Welfare State, 23 Law & Soc. Inquiry 1, 40 (1998)).
3. Sanford Katz, Individual Rights and Family Relationships, in Cross Currents, supra note 1, at 621.
4. Certainly, scholars have observed similar trends toward "constitutionalization" in many other contexts, both in the United States and abroad. See generally Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).
5. Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe 88-89 (1989).
6. See id. at 2 (observing that in a short span in the 1970s and 1980s, "[n]ew and strikingly similar legal images of family roles and relationships have appeared" in the United States and Western Europe, with "[m]any traditional family law norms havfing] been found inconsistent with the values contained in constitutions or international conventions")
7. Kenneth McK. Norrie, Marriage and Civil Partnership for Same-Sex Couples: The International Imperative, 1 J. Int'l L. & Int'l Rel. 249, 255 (2005) ("[T]he late 1990s saw a constitutionalization of family law throughout much of the western world.")
8. Lynn D. Wardle, Lessons from the Bill of Rights About Constitutional Protection for Marriage, 38 Loy. U. Chi. L.J. 279, 285-91 (2007) ("[T]he national constitutions of 134 nations, more than two-thirds (actually, over 70%) of the countries of the world, contain substantive provisions defining, protecting, or expressing a commitment to the institution of marriage, family or families, parenting, motherhood, and/or family rights and relationships.")
9. Barbara Bennett Woodhouse, The Constitutionalization of Children's Rights: Incorporating Emerging Human Rights into Constitutional Doctrine, 2 U. Pa. J. Const. L. 1,7-8(1999).
10. Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging, 1991 BYU L. Rev. 1, 2.
11. See Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values (1997)
12. Jill Elaine Hasday, Federalism and Family Reconstructed, 45 UCLA L. Rev. 1297, 1318, 1337 (1998) (observing that "Reconstruction put into issue the legal prohibitions on family formation that helped constitute American slavery," that "Reconstruction's advocates were determined to extend federal protection to family rights," and that "[a]ware of the restrictions that American slavery placed on family formation, they were anxious to protect emancipated slaves' families and, more generally, to establish federal standards for certain basic family rights that no state would ever be allowed to fall below").
13. See Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (recognizing a parent's right to educate a child in a private school)
14. Meyer v. Nebraska, 262 U.S. 390 (1923) (recognizing a parent's right to give a child instruction in a foreign language).
15. -262 U.S. 390(1923).
16. -268 U.S. 510(1925).
17. See Griswold v. Connecticut, 381 U.S. 479, 515 (1965) (Black, J., dissenting) (observing that Meyer and Pierce "were both decided in opinions by Mr. Justice McReynolds which elaborated the same natural law due process philosophy found in Lochner v. New York").
18. Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
19. See Anne C. Dailey, Federalism and Families, 143 U. Pa. L. Rev. 1787, 1821-22 (1995).
20. -381 U.S. 479 (1965).
21. See, e.g., Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955) (rejecting constitutional challenge to anti-miscegenation law partly on the ground that "[r]egulation of the marriage relation is ... distinctly one of the rights guaranteed to the States" by the Tenth Amendment). As Linda Elrod has written
22. Traditionally, states regulated family law under the Tenth Amendment because the federal government did not. One hundred years ago, the U.S. Supreme Court reiterated that "|t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the State, and not the laws of the United States."
23. Linda Henry Elrod, Epilogue: Of Families, Federalization, and a Quest for Policy, 33 Fam. L.Q. 843, 846-47 (1999) (quoting Simms v. Simms, 175 U.S. 162,167 (1899))
24. see also Harry D. Krause, Family Law in a Nutshell 7 (3d ed. 1995)
25. Lynn D. Wardle, Tyranny, Federalism, and the Federal Marriage Amendment, 17 Yale J.L. & Feminism 221, 241 (2005). Professor Hasday has rebutted the notion that family law has always been the exclusive province of the States, while acknowledging the enduring power of the popular belief that "regulation of the family has been wholly local throughout American history." See Hasday, supra note 8, at 1298
26. see also Kristin A. Collins, Federalism's Fallacy: The Early Tradition of Federal Family Law and the Invention of States' Rights, 26 Cardozo L. Rev. 1761 (2005).
27. See, e.g., Ex parte Burrus, 136 U.S. 586, 593-94 (1890). Considerations of family privacy, however, often influenced the shape of state family law.
28. See, e.g., McGuire v. McGuire, 59 N.W.2d 336, 342 (Neb. 1953) (declining to compel spousal support within the intact family on the common-law ground that "[t]he living standards of a family are a matter of concern to the household, and not for the courts to determine")
29. Martha Albertson Fineman, The Autonomy Myth: A Theory of Dependency 295 (2004) ("The notion of the private family predates, and is analytically separate from, the constitutional idea of individual privacy, although this new arena of privacy seems rooted in older notions about family relations.")
30. Sanford N. Katz, Family Law in America 131-35 (2003) (discussing recognition of parents' rights as a matter of common law in early child-protection cases)
31. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1117-19 (1997) (observing that courts in the late nineteenth century commonly cited respect for marital harmony and privacy in crafting common-law doctrines precluding wives from seeking legal remedies for violence or economic subordination within the family).
32. See, e.g., Jerome Barron, The Constitutionalization of American Family Law: The Case of the Right to Marry, in Cross Currents, supra note 1, at 257, 259-68.
33. -316 U.S. 565 (1942).
34. Id. at 541.
35. -274 U.S. 200 (1927).
36. In fact, though Skinner and awareness of Nazi atrocities dimmed support for eugenics, sterilizations continued in a number of states until the enactment of restrictive federal legislation in 1974.
37. See Lisa Powell, Note, Eugenics and Equality: Does the Constitution Allow Policies Designed to Discourage Reproduction Among Disfavored Groups?, 20 Yale L. & Pol'y Rev. 481, 483-84, 488 (2002)
38. Michael G. Silver, Note, Eugenics and Compulsory Sterilization Laws: Providing Redress for the Victims of a Shameful Era in United States History, 72 Geo. Wash. L. Rev. 862, 868-72 (2004).
39. -388 U.S. 1 (1967).
40. -347 U.S. 483 (1954).
41. For a compelling account of resistance to "color blindness" in the context of the family
42. see Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption (2003).
43. See Nairn v. Nairn, 87 S.E.2d 749, 756 (Va. 1955).
44. Loving, 388 U.S. at 7 (citations omitted). Three years before Loving, the Supreme Court had struck down on equal protection grounds a Florida statute criminalizing interracial cohabitation.
45. See McLaughlin v. Florida, 379 U.S. 184 (1964).
46. See Loving, 388 U.S. at 11-12
47. see also infra notes 69-71 and accompanying text (discussing the significance of Loving's due process holding).
48. See In re Adoption of Gomez, 424 S.W.2d 656 (Tex. Civ. App. 1967)
49. Compos v. McKeithen, 341 F. Supp. 264 (E.D. La. 1972).
50. Palmore v. Sidoti, 466 U.S. 429, 433-34 (1982).
51. See Howard M. Metzenbaum Multiethnic Placement Act of 1994 (MEPA), Pub. L. No. 103-382, §§ 551-54, 108 Stat. 3518, 4056-57 (1994)
52. Removal of Barriers to Interethnic Adoptions, Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1808, 110 Stat. 1755, 1903-04 (1996) (codified at 42 U.S.C. § 671(a)(18) (2006)). For a discussion of the changes in federal enforcement policy banning almost all considerations of race in adoption and foster placement decisions
53. see Elizabeth Bartholet, Commentary: Cultural Stereotypes Can and Do Die: It's Time to Move on with Transracial Adoption, 34 J. Am. Acad. Psychiatry & L. 315, 317 (2006)
54. David D. Meyer, Palmore Comes of Age: The Place of Race in the Placement of Children, 18 U. Fla. J.L. & Pub. Pol'y 183 (2007).
55. See Elizabeth Bartholet, Nobody's Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative 130-40 (1999)
56. Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (2002)
57. Annette R. Appell, Disposable Mothers, Deployable Children, 9 Mich. J. Race & L. 421 (2004)
58. R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents' Racial Preferences Through Discriminatory State Action, 107 Yale L.J. 875 (1998)
59. Twila L. Perry, Race Matters: Change, Choice, and Family Law at the Millennium, 33 Fam. L.Q. 461 (1999).
60. Eva R. Rubin, The Supreme Court and the American Family 27-28 (1986).
61. See Harry D. Krause, Illegitimacy: Law and Social Policy (1971)
62. Harry D. Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967)
63. Harry D. Krause, Legitimate and Illegitimate Offspring of Levy v. Louisiana: First Decisions on Equal Protection and Paternity, 36 U. Chi. L. Rev. 338 (1969).
64. For a fuller account, see Martha F. Davis, Male Coverture: Law and the Illegitimate Family, 56 Rutgers L. Rev. 73,92-99 (2003) (observing that "[t]he strategists behind Levy's case were Professors Harry D. Krause and Norman Dorsen, two legal titans who did much to shape the future of illegitimacy litigation," and detailing the back story to their involvement).
65. -391 U.S. 68(1968).
66. See id. at 71-72.
67. Grossberg, supra note 1, at 9
68. see also Laurence C. Nolan, "Unwed Children " and Their Parents Before the United States Supreme Court from Levy to Michael H.: Unlikely Participants in Constitutional Jurisprudence, 28 Cap. U. L. Rev. 1, 9-10 (1999).
69. See David D. Meyer, Parenthood in a Time of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 Am. J. Comp. L. 125, 129-30 (2006).
70. -404 U.S. 71 (1971).
71. See id. at 76-77.
72. See Siegel, supra note 17, at 1116-19.
73. See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 1000 (2002).
74. See Frontiero v. Richardson, 411 U.S. 677,684-88 (1973) (Brennan, J., plurality) (quoting Bradweli v. Illinois, 83 U.S. 130, 141 (1877) (Bradley, J., concurring)).
75. See Craig v. Boren, 429 U.S. 190, 197 (1976).
76. Id. at 198-99 (citations omitted)
77. see also Susan Frelich Appleton, Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate, 16 Stan. L. & Pol'y Rev. 97, 113-16(2005).
78. See Stanton v. Stanton, 421 U.S. 7 (1975).
79. See Orr v. Orr, 440 U.S. 268 (1979).
80. See, e.g., Phelps v. Bing, 316 N.E.2d 775 (111. 1975).
81. See, e.g., Pennsylvania ex rel. Spriggs v. Carson, 368 A.2d 635, 639-40 (Pa. 1977)
82. Ex parte Devine, 398 So. 2d 686, 695-96 (Ala. 1981).
83. See Kirchberg v. Feenstra, 450 U.S. 455 (1981).
84. See, e.g., N. Ottawa Comm. Hosp. v. Kieft, 578 N.W.2d 267, 273 (Mich. 1998) (abolishing necessaries doctrine on equal protection grounds)
85. Account Specialists & Credit Collectors, Inc. v. Jackman, 970 P.2d 202, 205 (Okla. Civ. App. 1998) (same)
86. Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 417 A.2d 1003, 1007-09 (N.J. 1980) (remedying constitutional deficiency by extending doctrine to cover wives and husbands equally).
87. Appleton, supra note 45, at 111
88. see also Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 60-61 (2006) ("In the wake of these constitutional changes, states to a significant degree have repudiated the patriarchal model of family governance and revised their laws about rights and responsibilities within marriage to apply equally to husbands and wives."). This is not to say, of course, that formal gender neutrality eradicated substantive inequality.
89. See generally Martha Albertson Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (1991).
90. -852 P.2d 44 (Haw. 1993). After the court's ruling in Baehr, Hawaii voters amended the state constitution to preserve the traditional prohibition against same-sex marriage.
91. See Haw. Const, art. I, § 23. Notwithstanding the serious attention given by Baehr and other courts and scholars to the sex-discrimination argument against same-sex marriage laws, Professor
92. Appleton observes that "gender talk" has been curiously missing from prevailing public debates on the topic. Appleton, supra note 45, at 111.
93. See generally Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J.L. & Gender 461 (2007) (reviewing treatment of sex-discrimination claims in recent same-sex marriage decisions).
94. See In re Marriage Cases, 183 P.3d́ 384, 436-44 (Cal. 2008)
95. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008) (striking down Connecticut's ban on same-sex marriage on the ground that it discriminated on the basis of sexual orientation, without reaching question whether such a ban also discriminates on the basis of gender).
96. See, e.g., Conway v. Deane, 932 A.2d 571, 586-99 (Md. 2007)
97. Hernandez v. Robles, 855 N.E.2d 1, 6 (N.Y. 2006)
98. Anderson v. King Co., 138 P.3d 963, 987-89 (Wash. 2006).
99. For example, even after surveying the transformative impact of the Court's sex-equality jurisprudence on traditional family law, Professor Appleton nevertheless asserts that the Court's decision in Roe v. Wade, 410 U.S. 173 (1973), recognizing a privacy right to elect abortion, "is the most important thing the Supreme Court has ever done for women." Susan Frelich Appleton, From the Lemma Berkeloo and Phoebe Couzins Era to the New Millennium: 130 Years of Family Law, 6 Wash. U. J. L. & Pol'y 189, 197 (2001) (crediting Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 981 (1984)).
100. For instance, in United States v. Carotene Products, 304 U.S. 144, 152 n.4 (1938), Justice Stone suggested that the Court's assertiveness in Meyer and Pierce rested on the fact that the cases involved discrimination against "discrete and insular" ethnic or religious minorities. By contrast, Griswold v. Connecticut, 381 U.S. 479,482 (1965), suggested an entirely different basis-that the rights in Meyer and Pierce were traceable to emanations from the First Amendment relating to access to knowledge.
101. See Laura A. Rosenbury, Between Home and School, 155 U. Pa. L. Rev. 833 (2007) (contending that parents' childrearing rights are strong within the home but relatively weak at school and elsewhere)
102. see also Francis Barry McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 Ga. L. Rev. 975, 977-978 (1988).
103. -321 U.S. 158(1944).
104. See id. at 166 (agreeing that the guardian enjoyed constitutional childrearing rights but emphasizing that "neither rights of religion nor rights of parenthood are beyond limitation" and that "[a]cting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways")
105. see also Hamilton v. Regents of the Univ. of Cat., 293 U.S. 245, 262 (1934) (rejecting parents' claim, under Meyer and Pierce, of a right to exempt their child from mandatory campus military training in violation of the claimants' religious scruples).
106. Griswold v. Connecticut, 381 U.S. 479, 485 (1965). These guarantees, including the First, Third, Fourth, Fifth, and Ninth Amendments, were said to reflect a fundamental concern with personal privacy.
107. See id. at 484-85.
108. Id. at 486.
109. See, e.g., id. at 482 (contrasting the Lochner Court's error in presuming to "determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, and social conditions," with Griswold's narrow focus on the "intimate relation of husband and wife").
110. Id. at 486.
111. Id. at 491-92 (Goldberg, J., concurring).
112. Id. at 493 (citations omitted).
113. Id. at 495.
114. Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
115. Loving v. Virginia, 388 U.S. 1,12 (1967).
116. See Zablocki v. Redhail, 434 U.S. 374 (1978)
117. Turner v. Safley, 482 U.S. 78 (1987).
118. See Loving, 388 U.S. at 6 & n.5.
119. Justice O'Connor, the author of the Court's opinion in Turner, later acknowledged that the result there and in Loving would be hard to square with Goldberg's test unless the claimed right were defined at a sufficiently broad level (such as "marriage" generally, rather than "prison marriage" or "interracial marriage" specifically).
120. See Michael H. v. Gerald D., 491 U.S. 110, 132 (1989) (O'Connor, J., concurring in part).
121. -405 U.S. 645 (1972).
122. See Quilloin v. Walcott, 434 U.S. 246 (1978).
123. Lehr v. Robertson, 463 U.S. 248, 261-62 (1983) (citation omitted). For fuller analysis of the unwed father cases
124. see, for example, Katharine K. Baker, Bargaining or Biology?: The History and Future of Paternity Law and Parental Status, 14 Cornell J. L. & Pub. Pol'y 1, 6-12 (2004)
125. Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 Emory L.J. 1271 (2005)
126. David D. Meyer, Family Ties: Solving the Constitutional Dilemma of the Faultless Father, 41 Ariz. L. Rev. 753, 758-69 (1999). Katharine Baker argues that "the most important factor in determining whether a genetic father will be entitled to constitutional protection of his parental rights is his relationship with the mother"; unwed fathers typically prevail where the evidence suggests an implicit agreement with the child's mother to share parental rights. Baker, supra, at 34.
127. See M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that an indigent parent is entitled to waiver of filing fees in appealing termination of parental rights)
128. Santosky v. Kramer, 455 U.S. 745 (1982) (holding that due process requires that the State prove grounds for termination by clear and convincing evidence)
129. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981) (holding that appointment of counsel for indigent parents facing termination of parental rights may be required on a case-by-case basis). Accordingly, state and lower federal courts now widely considered it "settled that a state cannot terminate a parental relationship based solely on the 'best interests' of the child without some showing of parental unfitness." In re Heather B., 11 Cal. Rptr. 2d 891, 904 (Ct. App. 1992)
130. see also In re J.P., 648 P.2d 1364, 1374-77 (Utah 1982) (striking down statute that permitted termination of parental rights based upon a finding that "such termination will be in the child's best interests").
131. -431 U.S. 494(1977).
132. See id. at 503-04.
133. -416 U.S. 1 (1974).
134. See Moore, 431 U.S. at 498-99.
135. -405 U.S. 438 (1972).
136. Id. at 453.
137. See, e.g., Fineman, supra note 17, at 296 ("From the family law perspective, Eisenstadt v. Baird is the radical departure, because it takes the idea of entity or marital privacy and expands constitutional protection beyond common-law limitations of the family relationship.")
138. Janet L. Dolgin, The Family in Transition: From Griswold to Eisenstadt and Beyond, 82 Geo. L.J. 1519(1994).
139. Strictly speaking, Eisenstadt involved an equal protection claim. Yet, because the Court's analysis depended upon a finding that the claimants possessed the same fundamental right recognized in Griswold, the decision in fact recognized a privacy right.
140. See Lawrence v. Texas, 539 U.S. 558, 565 (2003) (acknowledging that Eisenstadt "was decided under the Equal Protection Clause, but with respect to unmarried persons, .. . went on to state the fundamental proposition that the law impaired the exercise of their personal rights").
141. -410 U.S. 113 (1973).
142. See id. at 152-53 (citing these cases for the proposition that the right of privacy "has some extension to procreation, contraception, family relationships, and child rearing and education").
143. Id. at 153.
144. See id. (emphasizing "[t]he detriment that the State would impose upon the pregnant woman by denying this choice").
145. -505 U.S. 833(1992).
146. Id. at 873-74.
147. Id. at 851.
148. Id. at 853.
149. Id. at 851.
150. -478 U.S. 186(1986).
151. -491 U.S. 110(1989).
152. -521 U.S. 702(1997).
153. See Bowers, 478 U.S. at 192-94
154. Michael H., 491 U.S. at 122-24 (Scalia, J., plurality)
155. Glucksberg, 521 U.S. at 720-23.
156. Michael H., 491 U.S. at 123.
157. Glucksberg, 521 U.S. at 727.
158. Barron, supra note 18, at 267.
159. -530 U.S. 57 (2000).
160. Id. at 65.
161. Id. at 67 (quoting Wash. Rev. Code § 26.10.160(3) (2000)) (emphasis added by plurality).
162. See David D. Meyer, Lochner Redeemed: Family Privacy After Troxel and Carhart, 48 UCLA L. Rev. 1125, 1141 & n.85, 1143 (2001) (analyzing opinions and providing a chart of the Justices' alignment).
163. Troxel, 530 U.S. at 69, 73.
164. Id. at 80 (Thomas, J., concurring)
165. Meyer, supra note 104, at 1140-45, 1150 & n.132 (analyzing the six different opinions in Troxel).
166. Troxel, 530 U.S. at 63.
167. Id. at 90 (Stevens, J., dissenting).
168. Id. at 98 (Kennedy, J., dissenting).
169. Id. at 90 n.10 (Stevens, J., dissenting)
170. see also id. at 85-86 (stating that state court's "harm" standard "finds no support in this Court's case law")
171. id. at 96-98 (Kennedy, J., dissenting) (cautioning against any "categorical rule" privileging parental prerogative)
172. id. at 73 (O'Connor, J., plurality) (declining to address state court's "harm" standard but "agree[ing] with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best 'elaborated with care'").
173. -112. 113. 114.
174. -539 U.S. 558 (2003).
175. Id. at 564.
176. Id. at 578.
177. Id. at 291.
178. Id. at 586 (Scalia, J., dissenting).
179. Id. at 578.
180. th Cir. 2004) (no right of gays and lesbians to adopt)
181. Bronson v. Swensen, 394 F. Supp. 2d 1329, 1333-34 (D. Utah 2005) (no right to polygamous marriage)
182. Conaway v. Deane, 932 A.2d 571, 626-27 (Md. 2007) (no right to same-sex marriage)
183. Lewis v. Harris, 908 A.2d 196, 209-10 (N.J. 2006) (same)
184. Hernandez v. Robles, 855 N.E.2d 1, 17-18 (N.Y. 2006) (same)
185. State v. Holm, 137 P.3d 726, 742-43 (Utah 2006) (no right to polygamous marriage).
186. th Cir. 2008) (closely analyzing Lawrence and concluding that it recognized a fundamental right protected by at least an intermediate form of constitutional review). For fuller exploration of this claim
187. see generally David D. Meyer, Domesticating Lawrence, 2004 U. CHI. Legal F. 453
188. Laurence H. Tribe, The "Fundamental Right" That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004). For some prominent alternative views
189. see generally Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-2003 Cato Sup. Ct. Rev. 21
190. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 Sup. Ct. Rev. 27.
191. Lawrence, 539 U.S. at 564.
192. -431 U.S. 678 (1977) (invalidating a New York law prohibiting the sale or distribution of contraceptives to minors).
193. See id. at 564-78.
194. See Kenneth Karst, The Liberties of Equal Citizens: Croups and the Due Process Clause, 55 UCLA L. Rev. 99, 139-40 (2007).
195. See Lawrence, 539 U.S. at 566-67, 571-72.
196. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).
197. Lawrence, 539 U.S. at 567 ("To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.").
198. See Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88 Minn. L. Rev. 1184, 1211-14 (2004)
199. David D. Meyer, A Privacy Right to Public Recognition of Family Relationships: The Cases of Marriage and Adoption, 51 Vill. L. Rev. 891, 903-06 (2006)
200. Mark Strasser, Lawrence, Mill, and Same-Sex Relationships: On Values, Valuing, and the Constitution, 15 S. Cal. Interdisc. L.J. 285 (2006).
201. Lawrence, 539 U.S. at 567.
202. Id. at 574 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992)).
203. th Cir. 2008) (surveying uncertainty in lower courts about Lawrence's standard of review but concluding that "the Supreme Court applied a heightened level of scrutiny in Lawrence")
204. Karst, supra note 122, at 137 ("A prominent theme in the commentary on Lawrence is the Court's refusal to stick closely to categorical distinctions among strict or intermediate or mere rationality judicial scrutiny of laws invading rights or liberties.")
205. Tribe, supra note 118, at 1896-97.
206. Michael H. v. Gerald D., 491 U.S. 110, 124 (1989) (Scalia, J., plurality)
207. see also Lawrence, 539 U.S. at 571 (holding that "respect for the traditional family" cannot preclude constitutional protection for same-sex intimacy).
208. See Nan D. Hunter, Living with Lawrence, 88 Minn. L. Rev. 1103 (2004)
209. Pamela S. Karlan, Loving Lawrence, 102 Mich. L. Rev. 1447 (2004). But cf. Karst, supra note 122, at 100 (disputing novelty of Lawrence's synthesis of equality and liberty).
210. See Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy-Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463, 552 (1983) (warning that "seeing the Court in this role merely sings once again the sad substantive due process song of Lochner v. New York").
211. J. Harvie Wilkinson, Gay Rights and American Constitutionalism, 56 Duke L.J. 545, 548 (2006)
212. see also Lynn D. Wardle, State Marriage Amendments: Developments, Precedents, and Significance, 7 Fla. Coastal L. Rev. 403, 438-39 (2005).
213. See, e.g., 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 (1996) (describing religious and conservative coalition championing proposed federal legislation to strengthen parental rights).
214. Troxel v. Granville, 530 U.S. 57, 91-93 (2000) (Scalia, J., dissenting). Justice Scalia's view placed him in diametric opposition to the position taken by Justice Thomas. Justice Scalia alone would have upheld the visitation order on the ground that it implicated no fundamental right of the parent; Justice Thomas alone would have given the mother's fundamental right the maximum protection of strict scrutiny. See id. at 80 (Thomas, J., concurring). At the same time, Justice Thomas claimed to reserve judgment on the validity of recognizing parental rights under substantive due process and hinted that parents' rights might more legitimately be recognized by way of the Privileges and Immunities Clause of the Fourteenth Amendment. Id. 8 n.*.
215. Id. at 92 (Scalia, J., dissenting).
216. Id. at 91-92.
217. Id. at 91-92. In Troxel, Justice Scalia indicated that he was not then prepared to overrule Meyer and Pierce outright because no litigant had sought that result; instead, he would confine them to their facts.
218. See id. at 92.
219. See David D. Meyer, Justice White and the Right of Privacy, 52 Cath. U. L. Rev. 915 (2003).
220. See Catherine A. MacKinnon, Roe v. Wade: A Study in Male Ideology, in Abortion: Moral and Legal Perspective 45 (Jay L. Garfield & Patricia Hennessey eds., 1984)
221. Katharine T. Bartlett, Feminism and Family Law, 33 Fam. L.Q. 475 (1999)
222. Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991)
223. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117 (1996).
224. See Bartholet, supra note 32, at 33-40.
225. James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 Cal. L. Rev. 1371 (1994)
226. Barbara Bennett Woodhouse, the Dark Side of Family Privacy, 67 Geo. Wash. L. Rev. 1247, 1251-59(1999).
227. See Richard F. Storrow, The Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Constitutional Law, 66 Mo. L. Rev. 527 (2001).
228. See, e.g., Janice M. v. Margaret K., 948 A.2d 73, 87 (Md. 2008) (holding, in such a case, that "where visitation or custody is sought over the objection of the parent, before the best interest of the child test comes into play, the de facto parent must establish that the legal parent is either unfit or that exceptional circumstances exist")
229. David D. Meyer, What Constitutional Law Can Learn from the AL1 Principles of Family Dissolution, 2001 BYU L. Rev. 1075 (discussing additional similar cases)
230. see also Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879(1984).
231. See Anita Allen, Privacy at Home: The Twofold Problem, in Revisioning the Political: Feminist Reconstructions of Traditional Concepts in Western Political Theory 193 (Nancy J. Hirschmann et al. eds., 1996).
232. See James G. Dwyer, The Relationship Rights of Children (2006)
233. Barbara Bennett Woodhouse, Hidden in Plain Sight: The Tragedy of Children's Rights from Ben Franklin to Lionel Tate (2008).
234. See Martin Guggenheim, What's Wrong with Children's Rights (2005)
235. Emily Buss, Children's Associational Rights?: Why Less Is More, 11 Wm. & Mary Bill Rts. J. 1101 (2003)
236. Emily Buss, "Parental" Rights, 88 Va. L. Rev. 635 (2002)
237. Elizabeth S. Scott, Parental Autonomy and Children's Welfare, 11 Wm. & Mary Bill Rts. J. 1071 (2003).
238. See Jana B. Singer, The Privatization of Family Law, 1992 Wis. L. Rev. 1443.
239. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 12 (1991).
240. See Carl E. Schneider, The Channelling Function in Family Law, 20 Hofstra L. Rev. 495 (1992). For a compelling recent reconsideration
241. see Linda C. McClain, Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law, 28 Cardozo L. Rev. 2133 (2007).
242. See Carl E. Schneider, Family Law in the Age of Distrust, 33 Fam. L.Q. 447 (1999).
243. See id. at 451
244. see also Milton C. Regan, Jr., Family Law and the Pursuit of Intimacy 67 (1993) (observing that modern "[r]ole distance places a premium on intimate relationships untainted by 'external' social expectations")
245. William C. Duncan, Constitutions and Marriage, 6 Whittier J. Child & Fam. Advoc. 331, 335 (2007) (contending that "the constitutionalization of family law" has eroded social institutions and norms guiding family relationships and substituted "government values like equality and radical autonomy").
246. See Margaret Brinig, Troxel and the Limits of Community, 32 Rutgers L.J. 733, 764 (2001) (noting the threat posed to the intimacy and autonomy necessary for family flourishing by extension of new constitutional rights to third parties).
247. See Glendon, supra note 5, at 194-95 (describing ways in which trends toward freer entrance and exit from marriage "react upon and reinforce each other")
248. Mary Ann Glendon, The New Family and the New Property 3 (1981) (describing emergence of a "New Family" characterized by "increasing fluidity, detachability and interchangeability," both in adult relationships and those between parents and children).
249. See Hafen, supra note 7, at 2.
250. Glendon, supra note 5, at 147.
251. Regan, supra note 151, at 67
252. see also Glendon, supra note 153, at 3-11 (observing that the "New Family" is predominantly one of choice, implying not only a rejection of tradition as a binding determinant of family roles, but also more fundamentally a rejection of "family" itself as an essential or primary source of personal identity and gratification)
253. Bruce C. Hafen, Individualism in Family Law, in Rebuilding the Nest: A New Commitment to the American Family 161, 167 (David Blankenhorn et al. eds., 1990) (warning that "constitutionalization" poses "dramatic-and unsettling-implications for family law, and also, therefore, for the family as a social institution in America").
254. See, e.g., June Carbone, From Partners to Parents Revisited: How Will Ideas of Partnership Influence the Emerging Definition of California Parenthood?, 7 Whittier J. Child & Fam. Advoc. 3, 30 (2007) ("In the
255. See Katharine B. Silbaugh, Miller v. Albright; Problems of Constitutionalization in Family Law, 79 B.U. L. Rev. 1139, 1148-51 (1999).
256. See id. at 1139-40.
257. See Hafen, supra note 132, at 489 ("Family law has always been longer on practice than on theory," and that "[w]ith a fairly simply theoretical framework, judges in family cases have concentrated largely on the intensely practical problems that arise in divorce, custody, neglect, and similar contexts.").
258. Margaret Ryznan, Note, Adult Rights as the Achilles' Heel of the Best Interests Standard, 82 Notre Dame L. Rev. 1649, 1678 (2007).
259. See Carl E. Schneider, State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social Issues, 51 Law & Contemp. Probs. 79 (1988).
260. See id. at 99-100.
261. See id. at 97-98
262. see also Hafen, supra note 7, at 17-18 ("It is impossible to prove or disprove conclusively all of the individual and social risks at stake in following or abandoning many of the normative values that underlie our culture.").
263. See Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting)
264. Schneider, supra note 162, at 110-13 ("Although the present form of Fourteenth Amendment privacy law does not foreclose compromise, its rigidity and artificiality (and the nature of adjudication) inhibit it.").
265. See Washington v. Glucksberg, 521 U.S. 702, 789 (1997) (Souter, J., concurring) (declining to recognize a fundamental right so as to allow for continued legislative "experimentation" with regard to the "emerging issue [of] ... assisted suicide")
266. Silbaugh, supra note 158, at 1140 (cautioning that constitutionalization "can shut off debate in family law cases almost unwittingly, seemingly without the benefit of experience with the arguments in the field")
267. Wilkinson, supra note 133, at 559 (lamenting tendency of constitutionalization to nationalize family law and preclude fruitful local experimentation).
268. See Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 Mich. L. Rev. 1803, 1820-22 (1985)
269. see also Lawrence, 539 U.S. at 602-05 (Scalia, J., dissenting)
270. Romer v. Evans, 517 U.S. 620, 636, 651 (1996) (Scalia, J., dissenting).
271. See generally Carl E. Schneider, Afterword: Elite Principles: The ALI Proposals and the Politics of Law Reform, in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution 489 (Robin Fretwell Wilson ed., 2006 [hereinafter Schneider, Elite Principles]).
272. See Schneider, Elite Principles, supra note 167, at 494-95.
273. See, e.g., Hafen, supra note 132, at 487, 558-59.
274. See Michael H. v. Gerald D., 491 U.S. 110, 123, & n.3 (1989).
275. Cass Sunstein suggests that Chief Justice Rehnquist's opinion for the Court in Glucksberg can be read in this way.
276. See Cass R. Sunstein, Is There a Constitutional Right to Clone?, 53 Hastings L.J. 987, 989 (2002). The qualified reaffirmation of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), could be seen in the same light, as could Justice Scalia's position in Troxel acquiescing to Meyer and Pierce while arguing against "extending] the theory upon which they rested to this new context." Troxel v. Granville, 530 U.S. 57, 92 (2000) (Scalia, J., dissenting).
277. See Schneider, supra note 162, at 117 ([W]e need to look dispassionately and realistically at what a more flexible state-interest standard, or even the deconstitutionalization of family law, would actually mean.").
278. Hafen, supra note 132, at 527.
279. See Meyer, supra note 126, at 898-906 (explaining the basis for reading Lawrence to protect "de facto" family privacy).
280. Lawrence v. Texas, 539 U.S. 558, 571-72 (2003).
281. th Cir. 2008) (concluding that Lawrence affords heightened substantive due-process protection).
282. For opposing assessments, compare Wilkinson, supra note 133, at 562-80 (lamenting further state constitutionalization by the amendment process), with Wardle, supra note 133, at 403 (defending it).
283. For instance, even before Troxel, several state supreme courts had invalidated grandparent visitation statutes on state constitutional grounds.
284. See, e.g., Beagle v. Beagle, 678 So. 2d 1271, 1275-76 (Fla. 1996) (further noting that protection for family privacy under Florida constitution is "much broader" than under the federal constitution)
285. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).
286. See, e.g., Callender v. Skiles, 591 N.W.2d 182, 189-90 (Iowa 1999) (recognizing under state constitution the parental liberty claim rejected in Michael H.)
287. In re J.W.T., 872 S.W.2d 189, 198 (Tex. 1994) (same)
288. Justin Reinheimer, Note, What Lawrence Should Have Said: Reconstructing an Equality Approach, 96 Cal. L. Rev. 505, 510 n. 18 (2008) (collecting cases recognizing a state constitutional privacy right corresponding to the one rejected in Bowers, decided both before and after Bowers).
289. See supra notes 101-10 and accompanying text.
290. Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
291. For example, in explaining why he rejected the state supreme court's rigid application of strict scrutiny, permitting court-ordered visitation only on proof of threatened "harm" to a child, Justice Stevens wrote:
292. Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies-the child.
293. Id. at 86.
294. -542 U.S. 1 (2004).
295. Id. at 15.
296. In explaining the circumstances that would justify overriding a parent's objection to nonparent visitation in Troxel, Justice Kennedy mentioned a child's loss of contact with a former longtime caregiver-and, interestingly, listed both harm to the child and harm to the former caregiver as considerations supporting state intervention.
297. See Troxel, 530 U.S. at 99 (Kennedy, J., dissenting).
298. See In re Parentage of L.B., 122 P.3d 161, 178 (Wash. 2005)
299. In re Parentage of A.B., 818 N.E.2d 126, 131-32 (Ind. Ct. App. 2004), vacated, 837 N.E.2d 965 (Ind. 2005) (formally vacating and remanding case while upholding power of courts to extend parental rights).
300. See generally Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005) (recognizing former same-sex partner as a legal parent subject to child support obligation, but without addressing constitutional question).
301. See, e.g., Janice M. v. Margaret K., 948 A.2d 73 (Md. 2008)
302. T.B. v. L.R.M., 786 A.2d
303. -913 (Pa. 2001)
304. Mason v. Dwinnell, 660 S.E.2d 58 (N.C. Ct. App. 2008) (reserving question whether former partner might be recognized as a full legal parent)
305. Melanie B. Jacobs, Applying Intent-Based Parentage Principles to Nonlegal Lesbian Coparents, 25 N. ILL. U. L. Rev. 433 (2005).
306. Troxel, 530 U.S. at 92-93 (Scalia, J., dissenting)
307. see also Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 1940 (2001) ("Justice O'Connor's atrocious plurality opinion, combined with the Court's fragmented support for the result, threatens to (further) federalize and constitutionalize all of family law under the same kind of ad hoc and unprincipled 'substantive due process' standards that have bedeviled other areas of pseudo-constitutional law.").
308. See Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (insisting that determining "the right to control and possession of this child" was wholly unaffected by federal law or constitutional principle, and that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States").
309. See, e.g., Sheppard v. Sheppard, 630 P.2d 1121 (Kan. 1981)
310. Davis v. Collinsworth, 771
311. S.W.2d 329 (Ky. 1989).
312. Of course, Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966), is a notorious counterexample.
313. Mason, 660 S.E.2d at 63.
314. Janice M., 948 A.2d at 82 (quoting McDermott v. Dougherty, 869 A.2d 751, 809 (2005)).
315. Id. at 92.
316. See Troxel v. Granville, 530 U.S. 57, 98 (2000) (Kennedy, J., dissenting) ("Cases are sure to arise-perhaps a substantial number of cases-in which a third party, by acting in a care-giving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.")
317. id. at 85 (Stevens, J., dissenting) (mentioning cases involving "a previous caregiver" as among those in which "it would be constitutionally permissible for a court to award some visitation").
318. See id. at 73 (O'Connor, J., plurality) ("[W]e agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best 'elaborated with care.'")
319. id. at 86, 90 (Stevens, J., dissenting) (arguing against a "harm" requirement for visitation on the ground that "we have never held that the parent's liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield," and that "[t]he almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent's liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily").
320. Silbaugh, supra note 158, at 1140.
321. Id. at 1160.
322. See Troxel, 530 U.S. at 71, 73-74.
323. Id. at 73.
324. See Sandra Day O'Connor, The Supreme Court and the Family, 3 U. Pa. J. Const. L. 573 (2001).
325. Id. at 575.
326. Id. at 576.
327. Id. at 291.
328. See supra notes 77-80 and accompanying text.
329. Moore v. City of E. Cleveland, 431 U.S. 494, 576-77 (1977).
330. O'Connor, supra note 200, at 578.
331. Id. at 291.
332. See John DeWitt Gregory, The Detritus of Troxel, 40 Fam. L.Q. 133, 147 (2006).
333. See Meyer, supra note 104, at 1133-35 (describing a seeming convergence in the Court's approaches to privacy in the abortion and parental rights contexts).
334. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
335. See Tonja Jacobi, Sharing the Love: The Political Power of Remedial Delay in Same-Sex Marriage Cases, 15 Law & Sexuality 11,11 (2006) (examining the emerging "trend of dividing legal rulings of unconstitutionality from the provision of remedies" in the same-sex marriage cases).
336. See Lewis v. Harris, 908 A.2d 196, 224 (N.J. 2006)
337. Baker v. State, 744 A.2d 864, 886-88 (Vt. 1999).
338. Wilkinson, supra note 133, at 565
339. see Wardle, supra note 133, at 431-33.
340. Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)
341. see also Kathleen M. Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. Colo. L. Rev. 293, 296 (1992).
342. See Schneider, supra note 162, at 87-88.
343. See Hafen, supra note 132, at 470-71.
344. Cf. id. at 489 (warning that the Supreme Court would be drawn into precisely such a "subjective jurisprudence" if it pushed the boundaries of privacy protection beyond the bright-line markers of family status).
345. Cf. Buss, supra note 146, at 640 (cautioning against legal approaches that "draw additional claimants into the custodial circle without taking adequate account of the potential harm to children caused by this diffusion of parental authority").
346. See Hafen, supra note 132, at 527 (cautioning that, without an effective methodology for drawing limits on constitutional protection, "autonomy or privacy, even in the best sense, stands to become meaningless by becoming limitless").
347. See, e.g., Fineman, The Autonomy Myth, supra note 17, at xxiii, 292-307 (arguing "for a new version of family privacy that would attach to the caretaker/dependent unit, free from any dictates as to family form, and based instead on the caretaking function")
348. McClain, supra note 52, at 33-49 (arguing for an understanding of constitutional law embodying a principle of "toleration as respect")
349. Anne C. Dailey, Developing Citizens, 91 Iowa L. Rev. 431,491 (2006) (arguing for a "developmental approach" that defines parental rights in relation to the capacity of caregiving relationships to "ensur[e] that children have the opportunity to acquire the skills necessary for full citizenship under our Constitution").
350. See, e.g., Carlos A. Ball, The Morality of Gay Rights: An Exploration in Political Philosophy (2003).
351. See Naomi Cahn, The Moral Complexities of Family Law, 50 Stan. L. Rev. 225, 228-29, 238-40 (1997)
352. Jane C. Murphy, Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law, 60 U. Pitt. L. Rev. 1111 (1999)
353. see also Hafen, supra note 7, at 2 (noting that "[f]ortunately, an emerging body of family law scholarship is beginning to challenge the sources and implications of th[e] trend" toward boundless individualism).
354. This is not to say, of course, that the petitioners in Lawrence were themselves involved in a "family" relationship; they were not. The point, rather, is that the Court appeared to protect choices about sexuality because of their potential relation to the construction of durable family intimacy. For a fuller defense of this claim, see Meyer, supra note 118, at 484-85
355. see also, McClain, supra note 52, at 35-40 (noting that "[a] striking feature of Lawrence is its emphasis on autonomy as relational" and that it ultimately reflected a principle of "toleration as respect").
356. Katz, supra note 17, at 1.
357. Id. at 291.
358. Id. at 291.