Disestablishing the family

Yale Law Journal

Volumn 119, Issue 6, 2010, Pages 1236-1279

  Ristroph, Alice ^a   Murray, Melissa ^a  

^a SETON HALL UNIVERSITY   (United States)

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EID: 77949662564     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (189)

1. PLATO, THE REPUBLIC 457d (R.E. Allen trans., Yale Univ. Press 2006).
2. For a detailed critique of Plato's Republic as totalitarian, see KARL R. POPPER, 1 THE OPEN SOCIETY AND ITS ENEMIES: THE SPELL OF PLATO (5th ed. 1966). As Popper explains Plato's argument, "family loyalties might... become a possible source of disunion." Id. at 48. To ensure political stability and social harmony, "[n]o member of the ruling class must be able to identify his children, or his parents." Id.
3. KARL MARX & FREDERICK ENGELS, THE COMMUNIST MANIFESTO 21-22 (David McLellan ed., Oxford University Press 1992) (1848) (responding to arguments against the "infamous" communist proposal of abolishing the family).
4. See, e.g., IRVING KRISTOL, NEOCONSERVATISM: THE AUTOBIOGRAPHY OF AN IDEA 143-44 (1995) (describing and critiquing "hostility" toward the family in communist and socialist thought).
5. The Greek drama Antigone is perhaps the most famous literary illustration of the competing claims of family and state. Antigone's brother Polyneices has been killed in the course of a revolt against Creon, King of Thebes, and Creon prohibits the burial of Polyneices as punishment for his disloyalty. Antigone buries Polyneices anyway: "Is he not my brother... ? I shall never desert him, never.... [Creon] has no right to keep me from my own." SOPHOCLES, THE THEBAN PLAYS 128 (E.F. Watling trans., Penguin Books 1974). Of course, Antigone believes her brother's burial is both a familial obligation and a religious one; for this reason, her story illustrates that religion as well as family might generate duties or values that clash with political obligations. For further discussion, see infra text accompanying notes 28-29.
6. See, e.g., Michael W. McConnell, Establishment and Toleration in Edmund Burke's "Constitution of Freedom," 1995 SUP. CT. REV. 393, 425-26 [hereinafter McConnell, Establishment and Toleration]; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1514-17 (1990) [hereinafter McConnell, Origins and Historical Understanding]; Ira C. Lupu & Robert W. Tuttle, The Limits of Equal Liberty as a Theory of Religious Freedom, 85 TEX. L. REV. 1247, 1271 (2007) (book review).
7. The antitotalitarian argument against an established church can be thought to serve state interests if we think a democratic government of limited powers has an interest in remaining a government of limited powers. But we do not usually associate the phrase "state interests" with an interest in limitations on state power.
8. See, e.g., Steven H. Shiffrin, The Pluralistic Foundations of the Religion Clauses, 90 CORNELL L. REV. 9, 37 (2004) ("A longstanding claim about the relationship between the Free Exercise Clause and the Establishment Clause is that the Free Exercise Clause protects liberty directly and the Establishment Clause protects liberty indirectly.").
9. This last point is crucial. On the antitotalitarian argument, the Establishment Clause is not simply an enforcement mechanism for the Free Exercise Clause. Separate spheres of authority are important not only because separation protects religious liberty, but also because competition among authoritative institutions helps maintain limitations on government power in areas other than religion.
10. The terms "nonestablishment" and "disestablishment" are used interchangeably in discussions of the Establishment Clause. We use the verb "disestablish" to refer to efforts to untangle existing establishments, and either "disestablishment" or "nonestablishment" to refer to an ongoing norm against establishment. On what constitutes an "establishment," of religion or of a family, see infra text accompanying notes 26-27.
11. See Zablocki v. Redhail, 434 U.S. 374 (1978); Boddie v. Connecticut, 401 U.S. 371 (1971); Loving v. Virginia, 388 U.S. 1 (1967).
12. See Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).
13. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
14. See Moore v. City of East Cleveland, 431 U.S. 494 (1977).
15. We discuss the "free exercise of the family" in more detail in Part II.
16. To date, only a handful of U.S. jurisdictions permit same-sex marriage. See Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 IOWA L. REV. 1253, 1265 n.45 (2009) (discussing the emergence of same-sex marriage in a minority of states). Most states do not permit same-sex marriages. Indeed, many U.S. jurisdictions maintain mini-Defense of Marriage Acts that explicitly restrict civil marriage to opposite-sex couples. See Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 LOY. U. CHI. L.J. 265, 265-66 (2007) (describing the enactment of mini-DOMAs in a number of U.S. jurisdictions). Similarly, the federal Defense of Marriage Act defines marriage as a heterosexual union for purposes of federal law. See 1 U.S.C. § 7 (2006); 28 U.S.C. § 1738(c).
17. Murray, supra note 16, at 1264-70 (discussing criminal law's role in articulating and enforcing the normative parameters of intimate life).
18. DAN MARKEL, JENNIFER M. COLLINS & ETHAN J. LEIB, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES (2009).
19. Commentators disagree on whether a single principle can explain the Establishment Clause; most say no. See, e.g., Bd. of Educ. v. Grumet, 512 U.S. 687, 718 (1994) (O'Connor, J., concurring in part and concurring in the judgment) (expressing doubt that there could be one "Grand Unified Theory" of the Establishment Clause). Noah Feldman argues that as a matter of intellectual history, a single theory-Lockean liberty of conscience-unified the various arguments made in favor of disestablishment in colonial and post-revolutionary America. See Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 372-98 (2002) (identifying, and arguing against, scholarship that identifies multiple theories of establishment).
20. Limited government is a fairly capacious concept, since there is a considerable distance between no state and a total state. See Alice Ristroph, Proportionality as a Principle of Limited Government, 55 DUKE L.J. 263, 285-86 (2005). For purposes of this Feature, we need not specify the precise structure or scope of government power; we imagine disestablishment as a principle for a world in which there is some ruling authority but not an absolute ruler.
21. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 250 (J.P. Mayer ed., George Lawrence trans., Harper Perennial 1988) (1835) (discussing the "tyranny of the majority").
22. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); Larry Alexander & Frederick Schauer, Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance, in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION 175 (Matthew D. Adler & Kenneth Einar Himma eds., 2009).
23. Cf. MARY DOUGLAS, HOW INSTITUTIONS THINK 92 (1986) (arguing that given the extent to which institutions shape individual thought, "the hope of intellectual independence is to resist, and the necessary first step in resistance is to discover how the institutional grip is laid upon our mind").
24. See, e.g., TOCQUEVILLE, supra note 21, at 68-70 (discussing the independence of New England townships); id. at 174-79 (discussing political parties); id. at 189-95 (discussing political associations as guarantees against tyranny); id. at 513-17 (noting the democratic benefits of civil associations not formed for explicitly political purposes).
25. Such individuals will also be exposed to competing understandings of law. Robert Cover famously argued that individuals inhabit different "normative worlds," and those worlds produce different and often irreconcilable claims about the content and meaning of the law. Robert M. Cover, The Supreme Court 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 11-19 (1983). Cover called the production of these competing claims jurisgenesis, and courts' decisions to recognize one claim at the expense of another jurispathic. The antitotalitarian argument could be understood as an attempt to embrace, rather than forestall, the "multiplicity of meaning" that jurisgeneration produces. See id. at 16. Stephen Carter develops a similar argument with specific reference to religious communities and their antitotalitarian potential. See STEPHEN L. CARTER, THE DISSENT OF THE GOVERNED: A MEDITATION ON LAW, RELIGION, AND LOYALTY 27-35, 47-48, 53-54 (1998).
26. See Matthew 22:21.
27. William Galston makes similar arguments, also with reference to God, Caesar, and Antigone. See WILLIAM A. GALSTON, LIBERAL PLURALISM 93-103 (2002); William A. Galston, The Idea of Political Pluralism, in NOMOS XLIX: MORAL UNIVERSALISM AND PLURALISM 95 (Henry S. Richardson & Melissa S. Williams eds., 2009) [hereinafter Galston, The Idea of Political Pluralism]. Galston decries "civic totalism," which seems to be the idea that "a demos that observes the norms of democratic decision-making may do what it wants," including regulating nonstate institutions to serve public ends. Galston, The Idea of Political Pluralism, supra, at 103-04. The worry about civic totalism is akin to a worry about totalitarianism.
28. SOPHOCLES, supra note 5, at 128-29.
29. Antigone's sister, Ismene, had declined to help Antigone with the burial ("I cannot act Against the State. I am not strong enough."). Id. at 128. After the crime, Ismene wishes to share Antigone's punishment, but Antigone coldly refuses: "You chose; life was your choice, when mine was death.... Your way seemed right to some, to others mine." Id. at 141.
30. This terminology is somewhat anachronistic, because, as our discussion of Madison's 1785 text makes clear, this argument for institutional separation precedes the term "totalitarianism." Mussolini introduced the latter term in the 1920s, and the word quickly became associated with a form of government that seeks total control over its subjects, including control of speech, belief, and opinion. See BENITO MUSSOLINI, FASCISM: DOCTRINE AND INSTITUTIONS 11 (1935) ("The Fascist conception of the State is all-embracing; outside of it no human or spiritual values can exist, much less have value. Thus understood, Fascism is totalitarian, and the Fascist State-a synthesis and a unit inclusive of all values- interprets, develops, and potentiates the whole life of a people."). Carl Schmitt developed similar arguments in support of the Third Reich. See Carl Schmitt, The Way to the Total State, in FOUR ARTICLES 1931-1938 (Simona Draghici trans. & ed., 1999). The critical analysis that introduced the term more widely is HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (1951). Today, the adjective "antitotalitarian" invokes efforts to forestall expansive government control of private conduct and even thought and belief. See, e.g., Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 784-87 (1989) (describing privacy rights as antitotalitarian). Accordingly, we use the word to describe our account of nonestablishment, notwithstanding the fact that the adjective is of more recent vintage than the underlying argument.
31. JAMES MADISON, Memorial and Remonstrance Against Religious Assessments, in 8 THE PAPERS OF JAMES MADISON 295, 299 (Robert A. Rutland et al. eds., 1973) (1785).
32. Id. at 302.
33. Id. at 300. The strong antitotalitarian argument, which is not necessarily one spelled out by Madison in Memorial and Remonstrance, is that persons exposed to plural authoritative institutions are more likely to take alarm at the first experiment on their liberties.
34. Nor, as we discuss below, is the argument one that would persuade only the religious.
35. See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105, 2107 (2003) (arguing that the Court has focused too much on "one event in one State" to interpret the Establishment Clause, and referring to the dispute in Virginia that prompted Madison's Memorial and Remonstrance).
36. McConnell, Establishment and Toleration, supra note 6, at 393-96.
37. Id. at 426.
38. Id.; see also Michael W. McConnell, Origins and Historical Understanding, supra note 6, at 1516 (1990) ("If government admits that God (whomever that may be) is sovereign, then it also admits that its claims on the loyalty and obedience of the citizens is partial and instrumental. Even the mighty democratic will of the people is, in principle, subordinate to the commands of God, as heard and understood in the individual conscience. In such a nation, with such a commitment, totalitarian tyranny is a philosophical impossibility.").
39. See also Lupu & Tuttle, supra note 6, at 1271 (explaining that "religious freedom finds its basic justification in liberalism's opposition to totalitarian pretensions of civil government").
40. See infra Part III.
41. Epperson v. Arkansas, 393 U.S. 97, 105 (1968) (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)) (finding state prohibition of teaching evolution to be motivated by religious belief and to violate the First Amendment).
42. 319 U.S. 624 (1943); cf. Galston, The Idea of Political Pluralism, supra note 27, at 113-16 (discussing Barnette as alternative to civic totalism).
43. Barnette, 319 U.S. at 641. The antitotalitarian principle prohibits government from taking certain steps to shore up its own authority. Justice Jackson was optimistic that this prohibition bore little danger for the United States, but one can also understand the antitotalitarian argument as a claim that democracy entails certain risks. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. Id. at 641-42; see also infra text accompanying note 189 (discussing the implications of Justice Jackson's Barnette opinion). Robert Tsai has argued that "the anti-totalitarian enterprise... utterly dominated free speech mythos" after World War II, but he notes that this enterprise often led the Supreme Court to uphold restrictions on allegedly dangerous or inflammatory speech. Robert L. Tsai, Fire, Metaphor, and Constitutional Myth-Making, 93 GEO. L.J. 181, 205 (2004).
44. Barnette, 319 U.S. at 634-35 ("Nor does the issue as we see it turn on one's possession of particular religious views.... While religion supplies appellees' motive for... making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.").
45. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
46. Lee, 505 U.S. at 589.
47. Id.
48. McConnell, supra note 35, at 2193-96.
49. Barnette, 319 U.S. at 641-42.
50. Cf. McConnell, supra note 35, at 2205 (noting the "remarkable" fact that "the most prominent voices for disestablishment" in early American history often relied on explicitly religious arguments).
51. See Michael W. McConnell, Education Disestablishment: Why Democratic Values Are Ill-Served by Democratic Control of Schooling, in NOMOS XLIII: MORAL AND POLITICAL EDUCATION 87, 103-04 (Stephen Macedo & Yael Tamir eds., 2002).
52. In other words, it may be the case that the antitotalitarian rationale for disestablishment was one that early Americans performed unselfconsciously rather than theorized in extensive detail.
53. See David B. Cruz, Disestablishing Sex and Gender, 90 CAL. L. REV. 997 (2002); Andrew Koppelman, Sexual and Religious Pluralism, in SEXUAL ORIENTATION & HUMAN RIGHTS IN AMERICAN RELIGIOUS DISCOURSE 215 (Saul M. Olyan & Martha C. Nussbaum eds., 1998); Michael W. McConnell, What Would It Mean to Have a "First Amendment" for Sexual Orientation?, in SEXUAL ORIENTATION & HUMAN RIGHTS IN AMERICAN RELIGIOUS DISCOURSE 234 (Saul M. Olyan & Martha C. Nussbaum eds., 1998); Andrew P. Morriss & Benjamin D. Cramer, Disestablishing Environmentalism, 39 ENVTL. L. 309 (2009). Consistent with our reading of Michael McConnell as an advocate of a version of antitotalitarianism, his argument for "education disestablishment" is more concerned with protecting the possibility of separate, competing authoritative institutions. See McConnell, supra note 51.
54. A growing literature advocates increased attention to institutional context in First Amendment jurisprudence. See, e.g., Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1998); Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256 (2005). In the subset of this literature that directly addresses religious institutions, one finds frequent emphasis of the political value of plural, autonomous institutions. See, e.g., Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILL. L. REV. 273, 292-93 (2008); Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 HARV. C.R.-C.L. L. REV. 79 (2009) (arguing that First Amendment doctrine should be based on an understanding of church and state as distinct institutions, each sovereign in its own sphere).
55. Kent Greenawalt has proposed that constitutional analysis should interpret the term "religion" by deploying Ludwig Wittgenstein's multifactor "family resemblances" approach. See, e.g., 1 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: FREE EXERCISE AND FAIRNESS 139 (2006). This approach creates an opportunity for normative bias. The definition of religion (or for our purposes, of the family) will depend on the "selection of the 'paradigm cases.'" Eduardo Peñalver, Note, The Concept of Religion, 107 YALE L.J. 791, 815 (1997). Like religion, which is not easily defined but is recognizable by "family resemblances," the family itself is identified in law by its resemblance to a certain model of kinship and domesticity, as we discuss below.
56. If we identify principled (rather than textual) reasons for religion to get special constitutional protection, those principles may well apply to families as well. Families play similarly important roles in individual development; they impose similarly not-quite- voluntarist obligations; and they have similar cultural and moral importance in the lives of citizens.
57. See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 17-23 (1989) (discussing perceptions of "the family as a school of justice" in western political thought); JOHN RAWLS, A THEORY OF JUSTICE 462-71 (1972).
58. For example, Linda McClain argues that the state may promote (marital) families as "seedbeds of civic virtue," but argues for a broad, liberal list of virtues that includes toleration, gender equality, and the capacity for critical reflection. LINDA C. MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 50-84 (2006). Similarly, Mary Anne Case has suggested that modern marriage law promotes at most a very general vision of the good-"the assumption that the social good is likely to be promoted when government facilitates people working together to achieve joint ends." Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1782 (2005). According to Case, "it is hardly a thick and rich ethical vision that is presently being given state sponsorship."
59. In the following discussion, we rely almost exclusively on decisions of the United States Supreme Court in order to consider the outer parameters of the state's power to define the family or to limit government intervention into families. Our reliance on Supreme Court cases resists the claim that family law is exclusively the creature of state law, and emphasizes the degree to which a normative model of the family has been adopted at the national level. For historical evidence that family law has long been a subject of federal and state concern, see Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297 (1998).
60. See Carl E. Schneider, The Channelling Function in Family Law, 20 HOFSTRA L. REV. 495, 497- 98 (1992). This channeling function occurred in a number of ways. Family law historically prescribed the parameters for executing a valid marriage, specifying relationships that were eligible for marriage and those that were not. See Murray, supra note 16, at 1266. However, family law relied on criminal law to bolster and police the normative parameters of marriage. Id. at 1266-67. Historically, family law's prescriptions for valid marriages have been echoed by criminal law's prohibitions on behavior deemed ineligible for, or inimical to, marriage. Id. at 1267. As a consequence, until quite recently, marriage was the legally approved site for sexual activity and, importantly, childbearing. Id. at 1268, 1270.
61. Perhaps the clearest example of this preference is the robust privacy protections afforded to members of the marital family. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (expressing alarm over the prospect of police entering "the sacred precincts of marital bedrooms").
62. 405 U.S. 645 (1972).
63. The fact that the Court understood Peter Stanley to have functioned as a husband and father is evident in subsequent cases where the Court contrasted the behavior of other petitioning fathers with Peter Stanley's conduct. See infra text accompanying notes 67-68 (discussing the Court's disposition of Quilloin and Lehr).
64. 434 U.S. 246 (1978).
65. 463 U.S. 248 (1983).
66. See Lehr, 463 U.S. at 250; Quilloin, 434 U.S. at 255.
67. See Lehr, 463 U.S. at 267 (noting that "appellant... ha[d] never established a substantial relationship" with his daughter); Quilloin, 434 U.S. at 256 (noting that appellant "ha[d] never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child").
68. The Lehr Court underscored this critical distinction by comparing the circumstances in Lehr to those in an earlier case, Caban v. Mohammed, 441 U.S. 380 (1979). See Lehr, 463 U.S. at 267. Statutes like the ones challenged in Lehr and Quilloin, the Court concluded, could "not constitutionally be applied in that class of cases where the mother and father are in fact similarly situated with regard to their relationship with the child." Id. The father in Caban was deemed similarly situated to his children's mother because he, like Peter Stanley, "had admitted paternity and had participated in the rearing of the children." Id. (discussing Caban). As important, the father in Caban had also "contributed to the [financial] support of the family." Caban, 441 U.S. at 383.
69. Lehr, 463 U.S. at 250; Quilloin, 434 U.S. at 551.
70. Lehr, 463 U.S. at 268 (affirming the lower court's decision to sever parental rights and permit the stepparent adoption); Quilloin, 434 U.S. at 255 ("[T]he result of the adoption in this case is to give full recognition to a family unit already in existence....").
71. Lehr, 463 U.S. at 261 (emphasis added) (internal quotation omitted).
72. Id. at 261.
73. 491 U.S. 110 (1989).
74. Id. at 113-14.
75. Id. at 114.
76. Id. at 116 (noting that Victoria also raised a due process challenge to the statute, seeking to preserve her relationships with both Michael and Gerald).
77. Id. at 123 n.3.
78. Id. at 123.
79. Id.
80. 530 U.S. 57 (2000).
81. Id. at 61. The state court concluded that visitation with their paternal grandparents would be in the girls' best interests. The girls' mother, who had never married her daughters' father and was now married to another man with whom she had a child, vehemently objected. Id.
82. Id. at 67.
83. As in Quilloin and Lehr, the children's mother recently had married and was creating a marital family with her new husband, who had adopted the daughters. Id. at 61-62 (noting Granville's marriage to Kelly Wynn and Wynn's adoption of Granville's daughters). Extensive visitation with their grandparents likely would have precluded the girls' integration by requiring their absence from the marital family unit their mother and her husband were creating. Ariela R. Dubler, Constructing the Modern American Family: The Stories of Troxel v. Granville, in FAMILY LAW STORIES 95, 100 (Carol Sanger ed., 2008).
84. Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 VA. L. REV. 385, 439-41 (2008).
85. Levy v. Louisiana, 391 U.S. 68 (1968) (holding that laws that discriminate on the basis of legitimacy violate the Equal Protection Clause).
86. Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (striking down a Cleveland housing ordinance limiting occupancy of a single-family dwelling unit to nuclear family members).
87. Lawrence v. Texas, 539 U.S. 558 (2003) (striking down a state law criminalizing same-sex sodomy); Eisenstadt v. Baird, 405 U.S. 438 (1972) (striking down a state law prohibiting the distribution of contraception to unmarried persons); McLaughlin v. Florida, 379 U.S. 184 (1964) (striking down a state law prohibiting interracial cohabitation).
88. Melissa Murray, Equal Rites and Equal Rights, 96 CAL. L. REV. 1395, 1396-97 (2008) (discussing the development of civil-union statutes); Murray, supra note 84, at 440-41, 449 (same).
89. For example, the New York Court of Appeals deemed two (unmarried) gay men "family members" for purposes of a New York City rent and eviction regulation, in large part because their relationship comported with traditional indicia of marital family life. Braschi v. Stahl Assocs. Co., 543 N.E.2d 49, 53-55 (N.Y. 1989). Interestingly, the court declined to find the couple to be "spouses," indicating that the terms spouse/marriage are less flexible than the term "family." And yet, even as the court declined to find them spouses, it used the normative concept of marriage to inform its understanding of family. Id. at 53-54 ("[A] more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of 'family' and with the expectations of individuals who live in such nuclear units."). Likewise, in Hann v. Housing Authority of Easton, 709 F. Supp. 605 (E.D. Pa. 1989), an unmarried couple with children was determined to be a family for purposes of public housing assistance because they conducted their lives as though they were a marital family, cohabiting and raising children together. Id. at 610 (noting that "[t]he only thing missing [was] a marriage certificate"). Though not legitimated through marriage, both relationships approximated the marital family in substance and form. See also Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 COLUM. L. REV. 957, 1020 (2000) ("[C]ontemporary performance-based approaches to nonmarital cohabitation posit marriage as the as the reigning normative model against which nonsolemnized unions are compared and against which their legal merits are evaluated.").
90. As Martha Fineman and others have noted, this autonomy is illusory. We are all dependent on others-and the state-at some point in our lives. MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY 35-40 (2004).
91. Procreative decisions are the most obvious example, but note that they are protected only up to a point. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992) ("The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations [on abortion] must be deemed unwarranted."). States may restrict access to abortion in numerous ways, and may prohibit it outright in the third trimester subject to certain narrow exceptions. Roe v. Wade, 410 U.S. 113, 154 (1973) (concluding that "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation"). In addition, the cultural and political battle over the meaning of marriage should make clear that the socially recognized "autonomy" of married couples is not a principle of moral laissez-faire.
92. See FINEMAN, supra note 90.
93. Historically, the prosecution of Mormon polygamy in the Utah Territory involved invasive investigative techniques like questioning minors about their parentage. RICHARD S. VAN WAGONER, MORMON POLYGAMY: A HISTORY 117-19 (2d ed. 1989). Some have argued that Utah's modern statute criminalizing bigamy sweeps more broadly than analogous laws in other states because of these efforts to detect and punish "unlawful cohabitation." See Brief of Appellants at 27-32, Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (No. 05-4161). More recently, law enforcement efforts to prosecute underage marriages in a fundamentalist Mormon sect in Texas included DNA testing of sect members in an attempt to determine family relationships. James C. McKinley Jr., Trial of Sect Leader Exposes Difficulties for Prosecutors, N.Y. TIMES, Nov. 4, 2009, at A14.
94. Cf. 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION (Robert Hurley trans., Vintage Books 1978) (1976) (discussing the state's use of the family as a site of intimate regulation).
95. See, e.g., MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE 82 (1999) (arguing that the drive toward same-sex marriage will further marginalize sexual expression and relationships that are not recognized and valued by the state); Judith Butler, Is Kinship Always Already Heterosexual?, 13 DIFFERENCES: J. FEMINIST CULTURAL STUD. 14, 17-18 (2002) (suggesting that discussions of same-sex marriage may insufficiently value intimate relations that are neither recognized nor prohibited by the state); Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1418 (2004) (identifying the complexity of the GLBT community's decision to exchange one form of legal regulation of homosexuality (criminal law) for another (marriage)); Katherine M. Franke, Longing for Loving, 76 FORDHAM L. REV. 2685, 2687-88 (2008) (explaining that because marriage is a potent regulatory tool, the GLBT community should be more skeptical of the drive toward same-sex marriage).
96. See, e.g., Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) ("Man is, or should be, woman's protector and defender.... The harmony [of] the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband."); Mark E. Brandon, Family at the Birth of American Constitutional Order, 77 TEX. L. REV. 1195, 1204 (1999) (discussing the Lockean view that "the family's function was to bring the child into the exercise of reason-a kind of self-limitation-and therefore enable him to live under law"); John Gilbert McCurdy, We the Bachelors, N.Y. TIMES, July 4, 2009, at A21 (observing that when the founding fathers "created a new nation, they assailed sexual immorality, luxury and sloth-all of which they associated with the single life").
97. McConnell, supra note 35, at 2131.
98. Murray, supra note 16, at 1267 n.50.
99. Indeed, many scholars have identified moral condemnation as the distinctive feature of criminal (as opposed to civil) sanctions. See, e.g., Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 402, 404 (1958) ("What distinguishes a criminal from a civil sanction... is the judgment of community condemnation which accompanies it and justifies its imposition.").
100. But see Martha Minow, We, the Family: Constitutional Rights and American Families, 74 J. AM. HIST. 959 (1987). Though Minow does not emphasize the role of criminal sanctions in early constitutional cases involving families, she does illuminate the extent to which these cases involved the enforcement of favored ideological positions. Id. Though Griswold v. Connecticut and other post-1960 opinions depict a lengthy tradition of respect for family privacy, Minow suggests that this image of family autonomy is an "invented tradition." Id. at 962. Opinions such as Meyer v. Nebraska and Pierce v. Society of Sisters are more accurately characterized as the scenes of ideological battles between religious or ethnic groups. Id. at 962-65. 98 U.S. 145 (1878).
101. Id. at 146, 161. For useful studies of Reynolds in historical context, see SARAH BARRINGER GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH-CENTURY AMERICA (2002) [hereinafter GORDON, THE MORMON QUESTION]; Martha M. Ertman, The Story of Reynolds v. United States: Federal "Hell Hounds" Punishing Mormon Treason, in FAMILY LAW STORIES 51-75 (Carol Sanger ed., 2008); and Sarah Barringer Gordon, "The Liberty of Self-Degradation": Polygamy, Woman Suffrage, and Consent in Nineteenth-Century America, 83 J. AM. HIST. 815 (1996) [hereinafter Gordon, The Liberty of Self-Degradation].
102. Reynolds, 98 U.S. at 161 (internal quotations omitted). 104.
103. Id. at 164-65.
104. Id. at 165-66.
105. Id. at 166. Monogamy, Lieber insisted, "is one of the primordial elements out of which all law proceeds... [and] the foundation of all that is called polity." Carol Weisbrod & Pamela Sheingorn, Reynolds v. United States: Nineteenth-Century Forms of Marriage and the Status of Women, 10 CONN. L. REV. 828, 835 (1978) (quoting Francis Lieber, The Mormons: Shall Utah Be Admitted into the Union?, 5 PUTNAM'S MONTHLY 225, 234 (1855)).
106. Bradwell v. Illinois, 83 U.S. 130 (1872).
107. See GORDON, THE MORMON QUESTION, supra note 102, at 171-72 (noting that those opposed to polygamy emphasized the perceived absence of consent in polygamous unions).
108. After all, what right-thinking woman would voluntarily consent to live in a "system as fundamentally contrary to her interests as polygamy"? Id. at 173.
109. Interestingly, first wave feminists also analogized marriage to slavery. Gordon, The Liberty of Self-Degradation, supra note 102, at 824. However, their disapprobation was not directed at polygamous wives, but to women in monogamous marriages. Id. at 837 (observing that marriage, like slavery, stripped wives of legal capacity and demanded their submission to their husbands' will).
110. In his concurrence in Bradwell v. Illinois, Associate Justice Joseph Bradley famously expounded on "the constitution of the family," which specified separate spheres for husbands and wives. 83 U.S. 130, 141 (1872) (Bradley, J., concurring); see also TOCQUEVILLE, supra note 21, at 603 ("Americans do not think that man and woman have the duty or the right to do the same things, but they show an equal regard for the part played by both and think of them as being of equal worth, though their fates are different.").
111. Mark E. Brandon, Home on the Range: Family and Constitutionalism in American Continental Settlement, 52 EMORY L.J. 645, 694 (2003) ("[T]he wife, as mistress of the home, was perceived by society and herself as the moral superior of the husband, though his legal and social inferior.") (internal quotations and citation omitted); Barbara Welter, The Cult of True Womanhood: 1820-1860, 18 AM. Q. 151, 151-52 (1966).
112. Welter, supra note 112, at 152.
113. Brandon, supra note 112, at 653 ("Combined with assumptions about women's innately superior capacity for moral judgment and behavior, the educative function pictured wives and mothers as guardians of civilization in society.").
114. For more detailed discussion of the view that mother's domestic behavior served a political function in the cultivation of good citizens, see Linda Kerber, The Republican Mother: Women and the Enlightenment-An American Perspective, 28 AM. Q. 187, 202 (1976).
115. Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641, 659 (2005) (quoting Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to De Shaney, 105 HARV. L. REV. 1359, 1366 & n.19 (1992)).
116. Abrams, supra note 116, at 661-62 (discussing the fears that polygamy and illiberal values would be reproduced in subsequent generations).
117. Reynolds v. United States, 98 U.S. 145, 165 (1878).
118. Id. at 164.
119. The perception that polygamy-and Mormonism more generally-posed a threat to democracy persisted, even after Reynolds. See Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 49 (1890) (referring to the Mormons' "persistent defiance of law under the government of the United States"); see also SARAH SONG, JUSTICE, GENDER, AND THE POLITICS OF MULTICULTURALISM 155-56 (2007) (discussing the perception of the Mormons as an antiauthoritarian threat to the government of the United States).
120. Reynolds, 98 U.S. at 165 (discussing the criminalization of polygamy in England and Wales, and later in the United States).
121. Id. at 165-66 ("[A]ccording as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people to a greater or less extent, rests.").
122. See Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection.") (internal citations and quotations omitted); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (noting that public schools are "educating the young for citizenship").
123. 262 U.S. 390, 397, 400 (1923).
124. The statute, popularly known as the "Foreign Language Statute," was enacted after World War I amid a wave of anti-German hysteria. See Sylvia R. Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399, 450 n.239 (1999). The statute was part of the "100 percent Americanism" campaign, a nationwide pro-American movement that identified and celebrated the "beliefs and actions of patriotic Americans." Mark Kessler, Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger, 27 LAW & SOC'Y REV. 559, 574 (1993).
125. Robert Meyer, a teacher at the Lutheran Zion Parochial School in Hamilton County, Nebraska was charged with violating the Foreign Language Statute. Meyer, 262 U.S. at 396-97.
126. Id. at 401. The Court also referred to Meyer's own rights under the Fourteenth Amendment ("the calling of modern language teachers"), id., but most of its discussion focuses on parental autonomy and the limits of state power to direct children's education. Id. at 400-03.
127. The Court read the Fourteenth Amendment to protect "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children...." Id. at 399. Some of these liberties have since been denied full constitutional protection. W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Lochner v. New York and the concept of an unfettered freedom of contract). But the principle of familial autonomy, for the most part, survives.
128. Meyer, 262 U.S. at 403 ("No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed.").
129. Id. at 400.
130. Id. at 401-02. 132.
131. See id.
132. See id. at 402 (noting that the state's insistence on homogeneity "exceed[ed] the limitations" of the state's power and "conflict[ed] with rights assured to [citizens]").
133. 268 U.S. 510 (1925).
134. Id. at 530-31, at *.
135. See Josh Chafetz, Social Reproduction and Religious Reproduction: A Democratic- Communitarian Analysis of the Yoder Problem, 15 WM. & MARY BILL RTS. J. 263, 276 (2006). As in Meyer, the actual plaintiffs in Pierce were not convicted parents, but a Catholic organization that maintained several parochial schools, and a private all-male military training school. Pierce, 268 U.S. at 531-33. But the challenged statute was directed at parents: it required parents, guardians, and other persons having custody of children to enroll them in the local public school.Id. at 530-31.
136. Pierce, 268 U.S. at 534-35. 138.
137. Id. at 535.
138. It is also worth considering the social contexts that distinguish Pierce and Meyer from Reynolds. Even those schools that provided foreign language instruction or religious instruction also provided instruction in elements specifically designed to foster patriotism. A child raised in a polygamous family in the Utah Territory had few options for acquiring the American values perceived as inherent in the monogamous family. Moreover, the particular political circumstances in Utah guaranteed that almost all available institutions would accept-if not promote-polygamy as the accepted model for family life. To that point, adherence to polygamy would clearly convey one's allegiances to the Mormon Church and its institutions, rather than the nation itself. See Ertman, supra note 102, at 163-70 (arguing that the nineteenth century anxiety over Mormon polygamy was rooted in fears that Mormons were political traitors faithful to their church and territorial government, rather than to the United States).
139. Reynolds v. United States, 98 U.S. 145, 166 (1878).
140. To be clear, neither Pierce nor Meyer discusses family form explicitly-both cases are focused on the exercise of parental autonomy in the context of educational choices. Nevertheless, the facts of both cases make clear that the families at issue were organized along the traditional lines of the nuclear family. While they departed from preferred norms regarding education, they did not deviate from the form of the established family, and thus were less threatening to the state's authority.
141. Of course, parental authority is not unfettered. "The state may intervene into the family to usurp parental decisionmaking authority only in limited circumstances, such as abuse, neglect, and abandonment." Murray, supra note 84, at 395-96.
142. Scholars such as Dorothy Roberts and Linda Gordon have discussed at length the degree to which nonconformity with the marital family norm invites state scrutiny and interference. See Dorothy E. Roberts, Welfare and the Problem of Black Citizenship, 105 YALE L.J. 1563, 1577 (1996) (book review) (criticizing government interference with the morality of single mothers who are welfare recipients). See generally LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935 (1994) (discussing the history of state regulation of single mothers).
143. 406 U.S. 205 (1972).
144. Id. at 210-11.
145. Reynolds is cited twice by the majority for the proposition that "activities of individuals, even when religiously based, are often subject to regulation by the States," particularly where "[t]he conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order." Id. at 220, 230 (internal citations omitted). In a vigorous dissent, however, Justice Douglas argues that the majority's opinion allows "organized religion a broader base than it has ever enjoyed," perhaps portending that "in time Reynolds will be overruled." Id. at 247 (Douglas, J., dissenting).
146. Reynolds, 98 U.S. 145, 166 (1878) ("Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.").
147. Yoder, 406 U.S. at 220 ("But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.").
148. Generally, Amish families are composed of a husband and wife living with their children (and perhaps an elderly family member). See JOHN A. HOSTETLER, AMISH SOCIETY 145-67 (4th ed. 1993) (discussing Amish family life); Franklin G. Snyder, Nomos, Narrative, and Adjudication: Toward a Jurisgenetic Theory of Law, 40 WM. & MARY L. REV. 1623, 1689 (1999) (noting that, in terms of "[t]heir nuclear family life, their houses and food, their general cosmology, and their theology," the Amish "share many more narratives of the rest of America than one might suspect").
149. Yoder, 406 U.S. at 222.
150. Id. at 223 n.11.
151. Id. at 226.
152. See generally GORDON, THE MORMON QUESTION, supra note 102 (noting that the Mormon conflict was essentially a battle in which the supremacy of the federal government over a rogue territory was at stake).
153. The political dynamics of the postbellum United States, coupled with its particular understanding of polygamy, all shaped the conditions in which the Court decided Reynolds in 1878. When the Court decided Yoder nearly a century later, there had developed a substantial body of jurisprudence concerning First Amendment rights and the fundamental rights of parents that had not informed Reynolds's disposition.
154. See Gordon, The Liberty of Self-Degradation, supra note 102.
155. Yoder, 406 U.S. at 210.
156. Id.
157. Austin Sarat & Roger Berkowitz, Disorderly Differences: Recognition, Accommodation, and American Law, 6 YALE J.L. & HUMAN. 285, 298 (1994) (discussing the Yoder Court's sentimental depiction of the Amish "as exemplars of fundamental American values"). It is perhaps not coincidental that Yoder was decided only four years before the American Bicentennial celebrations.
158. See Lawrence v. Texas, 539 U.S. 558 (2003) (holding unconstitutional a criminal ban on same-sex sodomy); Levy v. Louisiana, 391 U.S. 68 (1968) (holding unconstitutional discrimination on the basis of illegitimacy). Although laws criminalizing adultery continue on the books in a number of states, actual prosecutions are quite rare. See Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277, 290 n.50 (2004) (collecting adultery statutes). The impact of the Supreme Court's decision in Lawrence renders the likelihood of adultery prosecutions even more remote. See 539 U.S. at 590 (Scalia, J., dissenting) (observing that Lawrence "called into question" the continued vitality of adultery prohibitions and other morals legislation); Hobbs v. Smith, No. 05CVS267, 2006 WL 3103008 (N.C. Super. Ct. Aug. 25, 2006) (striking down a law criminalizing fornication and adultery on the ground that it violated substantive due process rights).
159. See, e.g., NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION 212 (2000) (characterizing the changed "relation between marriage and the state" as "disestablishment"); Tamara Metz, The Liberal Case for Disestablishing Marriage, 6 CONTEMP. POL. THEORY 196, 199 (2007) ("[B]y some accounts the establishment of marriage is weakening."). We would balk at calling these changes "disestablishment." Although the marital nuclear family is no longer the only acceptable model for family life, nonconforming families and family practices are often judged against the model of the marital nuclear family, further entrenching its primacy as the normative ideal for intimate life. As such, we would not characterize this trend as complete disestablishment.
160. We do not here propose a particular model of familial disestablishment or identify the types of families that might be recognized under such an approach. Suffice to say that the boundaries that define the legal family are fraught with dignitary and economic interests. Instead, the Feature intends only to identify the degree to which the existing model of the established family is inadequate and to gesture toward an approach that might yield more satisfying models.
161. MARKEL, COLLINS & LEIB, supra note 18.
162. Id. at 95-96. Markel, Collins, and Leib imply a strong commitment to family autonomy in several instances. See, e.g., id. at xiii ("It is one thing for the law to recognize how citizens organize themselves into close circles of affection; but it is another for the criminal law to take a stance on how citizens ought to organize themselves-and to discredit and disadvantage those who choose to draw their circles of intimacy differently.").
163. Id. at 23-25.
164. "By giving families special support... the state may be able to economize on expenditures that it would otherwise be forced to bear in educating its citizenry and preparing its members to contribute to the stability and flourishing of the regime." Id. at 24.
165. See id. at 25.
166. So, for example, Markel, Collins, and Leib would permit classifications based on family status when they serve as "proxies for promoting some of the distinctive purposes of the criminal justice system." Id. at xix. The "normative framework" the authors adopt is one that simply asserts the priority of the state. See, e.g., id. at 29 ("[W]e do not think the interest... in ... encouraging close familial relationships ... constitutes sufficient reason for the state to deny our commitment to the truth-seeking function of the criminal justice system."); id. at 58 ("[T]he state's and the public's interests should generally prevail over the need to promote the comparatively private interest of family preservation and 'harmony.'"); see also infra note 187 (discussing the statist perspective evinced by Markel, Collins, and Leib).
167. MARKEL, COLLINS & LEIB, supra note 18, at 29 ("Although it cannot be denied that humans are frail and fallible-particularly when it comes to family loyalty-the state simply cannot legitimize its acceptance of perjury and obstruction by refusing to prosecute individuals who engage in these practices."); id. at 43 (characterizing laws that exempt family members from prosecution for harboring a fugitive as "an acknowledgment of human frailty," and arguing that the exemptions are misguided) (quoting State v. Mobbley, 650 P.2d 841, 843 (N.M. Ct. App. 1982) (Lopez, J., dissenting)). It is worth noting that in other cultures, the presumption of institutional superiority is quite different. Prior to the Cultural Revolution, Chinese culture placed allegiance to the family ahead of allegiance to the state. DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA: EXEMPLIFIED BY 190 CH'ING DYNASTY CASES 39 (1967) (noting that although Confucianism placed "heavy emphasis" on both loyalty to family and the state, if the two conflicted, loyalty to family was prioritized).
168. Recall, again, Antigone and her sister Ismene: ISMENE: O think, Antigone; we are women; it is not for us To fight against men; our rulers are stronger than we, And we must obey in this, or in worse than this. May the dead forgive me, I can do no other But as I am commanded ... ANTIGONE: Go your own way; I will bury my brother; And if I die for it, what happiness! SOPHOCLES, supra note 5, at 128. Which of these sisters is best described as frail? Privilege or Punish refers to Antigone briefly, but the authors find the analogy between her story and their own concerns about conflicting obligations "imperfect." See MARKEL, COLLINS & LEIB, supra note 18, at xii, 156 nn.16-17. "[W]e are more sympathetic to Antigone's plight because the edict she was flouting was unreasonable and oppressive ... Antigone's defiance of Creon may be viewed as a rebellion against an unjust law ... ." Id. at 156-57 n.17. But to excuse Antigone because she was bound by an unjust law is to miss the point. How does an individual gain the capacity to decide whether a law is just or unjust? Or the willpower to defy an unjust law? These faculties, we argue, are unlikely to arise in persons for whom the state is the only authoritative institution.
169. Mary Lyndon Shanley, Just Marriage: On the Public Importance of Private Unions, in JUST MARRIAGE 3 (Mary Lyndon Shanley ed., 2004).
170. See, e.g., Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 CARDOZO L. REV. 1161, 1165 (2006). Of course, as Zelinsky and other contract proponents note, many individuals may enter intimate associations but fail to formalize the relationship in a contract. Zelinsky argues that states should adopt default rules to apply to such persons. Id. at 1183.
171. See Edwardson v. Edwardson, 798 S.W.2d 941 (Ky. 1990) (enforcing a prenuptial contract negotiating around default rules for post-dissolution property distribution). But see Borelli v. Brusseau, 16 Cal. Rptr. 2d 16 (Cal. Ct. App. 1993) (refusing to enforce a postnuptial agreement requiring the husband to compensate the wife for providing care to him).
172. MARKEL, COLLINS & LEIB, supra note 18, at 90-93.
173. Id. at 91. Markel, Collins, and Leib argue that "one's familial status qua spouse or parent may be presumptively used to establish that the relationship involves voluntarism," and so the criminal law could continue to punish those who neglect their spouses or children whether or not they register for covenants of care. Id.
174. Oddly, after arguing for covenants of care, the authors consider and reject similar covenants of loyalty. [W]e toyed with an idea ... that parties should be able to opt into a regime of voluntary criminal law regulation, such that breach of a contract for monogamy could lead to criminal prosecutions for bigamy or adultery. But upon further consideration, we recognized the unfairness of using public resources to investigate, prosecute, and punish conduct that amounted to a breach of private promises between individuals.
175. The registry proposal seems to perpetuate the view that the wrongdoers' consent is the source of the right to punish. For a critique of that understanding of punishment, see Alice Ristroph, Respect and Resistance in Punishment Theory, 97 CAL. L. REV. 601 (2009).
176. Education disestablishment, according to Michael McConnell, entails "the idea ... that families would be permitted to choose among a range of educational options, including but not limited to government schools, using their fair share of educational funding to pay for the schooling they choose." McConnell, supra note 51, at 87. On this view, access to diverse educational experiences should not be the privilege of wealthy families who can independently pay for private schools. So long as public funding is not used to promote a particular religion or to facilitate state control of religious institutions, publicly funded voucher programs do not violate the Establishment Clause. In short, antitotalitarian principles of disestablishment do not prohibit, and may even require, public funding for families who wish to educate their children at religious schools. It is possible to extend these arguments to defend other kinds of public funding to families. In particular, voucher programs might be developed that would enable families to pursue a greater range of childcare options-beyond the traditional marital family with one stay-at-home parent.
177. Theoretically individuals, once grown, can exit family relationships that they did not choose, but this does not make the voluntary label accurate. Notably, Antigone's particular loyalty to Polyneices is based on the fact that her relationship with him was not chosen and, in fact, was beyond her control. She would not have made the same choice to bury a husband or child, given that marriage and motherhood involve somewhat more individual agency: "O but I would not have done the forbidden thing/For any husband or for any son ... I could have had another husband/And by him other sons, if one were lost ... ." SOPHOCLES, supra note 5, at 150.
178. MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY 65-71 (1996).
179. Theoretically individuals, once grown, can exit family relationships that they did not choose, but this does not make the voluntary label accurate. Notably, Antigone's particular loyalty to Polyneices is based on the fact that her relationship with him was not chosen and, in fact, was beyond her control. She would not have made the same choice to bury a husband or child, given that marriage and motherhood involve somewhat more individual agency: "O but I would not have done the forbidden thing / For any husband or for any son . . . .I could have had another husband / And by him other sons, if one were lost . . . ."SOPHOCLES, supra note 5, at 150.
180. Id. at 66.
181. They distinguish their argument from an equal protection claim that familial classifications should get strict scrutiny, but urge that "as a policy matter, the government should view the use of family status skeptically." MARKEL, COLLINS & LEIB, supra note 18, at xvii.
182. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007) (critiquing color blindness).
183. When it comes to religion, there is as much-or more-disagreement about how to implement the Establishment Clause as there is about the rationale for disestablishment. Even those who agree on the purpose of disestablishment often disagree about how best to resolve particular church-state controversies.
184. These two issues-exemptions from generally applicable laws and funding to religious institutions-are two of the most controversial and widely discussed questions arising under the religion clauses today. See, e.g., Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50 WM. & MARY L. REV. 1831, 1927-28 (2009) (identifying these two issues and a third: whether democratically enacted laws may permissibly be based on religious beliefs).
185. See id. at 1929; cf. Abner S. Greene, The Irreducible Constitution, 7 J. CONTEMP. LEGAL ISSUES 293, 307 (1996) (distinguishing judicially mandated exemptions from legislatively crafted accommodations). Since we do not take a position on whether familial accommodations should be decided by the legislature or judiciary, we use the terms accommodation and exemption interchangeably below.
186. MARKEL, COLLINS & LEIB, supra note 18, at 36-43 (describing and critiquing evidentiary privileges); id. at 43-45 (describing and critiquing exemptions for family members from laws that punish harboring a fugitive); id. at 46-53 (describing and critiquing pretrial release and sentencing decisions that take into account a defendant's familial relationships and obligations).
187. It is worth noting that the labeling of these exemptions as "benefits" evinces the statist perspective of Privilege or Punish. If the only visible obligations are those to the state, then a release from those obligations is easily characterized as a benefit. But if we do not take the state as the most important human institution, then it is easier to recognize other sources of obligation. A defendant released early from prison to care for a family member has not simply received a free pass; he has been released from one obligation to assume another. Markel, Collins, and Leib would sometimes take family relationships into account in sentencing or prison furlough or visitation policies, but in this context, their statist presumption is again evident: "[O]ne of the strong arguments for having the state benefit the family arises when the family is doing work the state very much wants done." Id. at 53. See also Murray, supra note 84, at 427-32 (discussing the state's considerations vis-à-vis the family in sentencing departures).
188. In some instances, the state cannot avoid making crucial decisions about the composition of families. For example, as James Dwyer has recently explained, the state must set default rules for the custody of newborn infants. James G. Dwyer, A Constitutional Birthright: The State, Parentage, and the Rights of Newborn Persons, 56 UCLA L. REV. 755 (2009).
189. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); see also Terminiello v. City of Chicago, 337 U.S. 1, 37 (1947) (Jackson, J., dissenting) ("There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.").