“Issues involving the family … are among the most difficult that courts have to face, involving as they often do, serious problems of policy disguised as questions of constitutional law” (pp. 624–625), declared Justice Potter Stewart in Parham v. J. R. (1979). Stewart's declaration revealed the tensions that have accompanied the Supreme Court's increasing involvement in American family life. Family cases coming before the court pit state and federal regulations against challenges by husbands and wives, mothers and fathers, sons and daughters, and various other family claimants. The disputes have compelled the justices both to devise ever more intricate legal doctrines to govern families and to articulate their conceptions of family responsibilities and roles. Their decisions reveal a broad judicial commitment to the family yet deep disagreements over how to implement that commitment. As a result, family cases have become some of the most controversial and contentious on the Supreme Court's docket.
That was not always the case. For most of its history, the Court avoided extensive involvement with family disputes. Under nineteenth‐century conceptions of federalism, states had the primary responsibility for family laws. Rules for marriage, divorce, childrearing, inheritance, and other family issues were the province of the state. The Supreme Court endorsed state jurisdiction over the family in a number of decisions, most notably in Maynard v. Hill (1888). The Court's main contribution was to clarify issues of comity, that is, it determined the responsibility of one state to enforce the rules of another in disputes over marriage or child custody. Generally, the justices encouraged states to grant full faith and credit to the family rules of other jurisdictions. In addition, the Court got involved in specific controversies such as the fight against polygamy, in which the justices refused to defer to marriage laws of Utah endorsing the practice. In general, the Court's endorsement of state family regulation encouraged an array of local and regional differences in American family law. These variations ranged from bans on interracial marriages to limits on the inheritance rights of illegitimate children.
In the twentieth century, the states continued to structure family life, but the Court assumed an even greater supervisory role culminating in a set of national family law standards. Significant federal judicial involvement in family disputes began in a series of parental rights cases in the 1920s. In Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), the Court upheld the right of a parent to direct his or her child's education. The decisions endorsed parental authority by asserting that families existed in a constitutionally protected private realm of society. Prince v. Massachusetts (1944) widened the Court's commitment to family privatism by declaring that there is a realm of family life that the state cannot enter without substantial justification. Through shifting determinations of such justifications, the Court has granted families autonomy from state regulations as protections of liberty guaranteed by the Fourteenth Amendment. In the years after World War II, such constitutional protection became the basis of the court's growing involvement with the nation's families.
A series of interrelated developments encouraged the Court to act. American families underwent significant changes. Divorces increased dramatically; women entered the permanent labor force in growing numbers; contraception and abortion became available family‐limitation practices; and alternative family arrangements from foster homes to homosexual unions challenged existing definitions of families. These and many other changes transformed family life and created growing controversies and an escalating number of lawsuits. Indeed, as at times of social tension in the past, the family became a battleground for contests spawned by social change. Unlike the past, though, the federal government, and especially the Supreme Court, became one of the primary arenas of that struggle. The federal government's role in family life had increased dramatically with the creation of programs like Social Security and Aid to Families with Dependent Children. The civil rights revolution also sparked new concerns about national family policies and a new sense of rights consciousness among family members. Similarly, an expanding sense of privacy encouraged new assertions of family autonomy over decisions about pregnancy and childrearing. Consequently, many of the endemic tensions in American family law that had plagued state courts in the nineteenth century emerged to bedevil the Supreme Court in the twentieth.
Beginning in the 1960s, the Court's construction of family law rules became more and more extensive. As the range of family matters under its scrutiny increased, the family beliefs, commitments, and disagreements of the justices became more evident. The Court often split over whether to defer to state policies or to enlarge individual rights. Both the range and limits of the Court's family jurisprudence indicates its new role in the nation's households. In almost every area of family life, the Court issued rulings that significantly altered the balance of power within the family and between family members and the state. At the same time, the justices struggled over the extent and character of these changes. Decisions on four issues illustrate the results: parents and children; illegitimacy; family privacy; and family definition.
The Court has redefined the legal relationship of parent and child. It has created new balances between state and parental control over socialization as well as between the rights of children and parents. The cases also exhibited the persistent tension in family law over whether the court should support the rights of individual family members or those of the family as a unit. The overlapping claims and rights of families made these troubling issues. The Court responded to them in part by continuing the policy of supporting parental rights. In Wisconsin v. Yoder (1972), it granted constitutional sanction to Amish parents who withdrew their children from school in violation of compulsory school laws. Yet for the first time, children received constitutionally protected rights they could assert against the state and even against their parents. In re Gault (1967) launched the expansion of juvenile rights. In granting youths coming before juvenile courts procedural rights such as the right to counsel, the Court declared the young had rights similar to those of adults. It extended them in cases like Tinker v. Des Moines Independent Community School District (1969) by giving students political rights, since the young had rights they do not leave “at the schoolhouse gate” (p. 506). At the same time, the Court ruled that minors could act independently of their parents by seeking abortions and by gaining protections against abuse and neglect. However, the Court refused to grant minors rights as extensive as those of adults. Parents retained considerable authority over their offspring. In Parham, which supported the right of parents to commit their children to mental institutions, Chief Justice Warren Burger used the kind of language often heard in family cases: “[O]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children” (p. 602). The Court, in short, rearranged the balance of rights and duties between parents, children, and the state by using the Due Process and Equal Protection Clauses to create a series of newly protected family rights.
Similarly, the Court tackled the age‐old problem of
Quite to the contrary, the Court greatly expanded its conception of family privacy. A series of decisions had long upheld the right of individuals to wed and procreate, but those rights had always been balanced against state regulations on marriage and birth. Griswold v. Connecticut (1965) fundamentally shifted the balance by granting family privacy constitutional protection. In overturning a birth control ban, the ruling initiated a series of decisions that protected the right to make private choices free from state interference in a range of matters. The Court ruled that the state could not deprive persons of the right to marry or to take away their ability to have children, nor forbid the use of contraception or abortion. As before, the newly expanded private realm of family life was not entirely immune from state regulation. The Court shifted the balance toward individual choice and against state regulation by knocking down state laws dating back to the mid‐nineteenth century. The decisions also documented the reemergence of persistent family law themes such as the interconnection of gender and family issues evident in the clash of fetal versus woman's rights, and the class dimension of legal rules revealed in rulings upholding the right of states to bar public funding of abortion. Equally significant, the family privacy cases demonstrated how contentious family law cases could be as they thrust the Court into the center of political controversy.
Finally, the Court was forced to define the family itself in constitutional terms. New family forms, federal policies, and legal rules spurred debate over what sort of families warranted constitutional protection. Over the years, the justices had issued a stream of statements in support of the family. The meaning of that commitment became clearer in decisions like Moore v. East Cleveland (1977), upholding the right of extended, biologically related families to live together in defiance of local zoning ordinances limiting family size. Equally telling was Belle Terre v. Boraas (1974), in which the Court endorsed a zoning law limiting the number of unrelated people who could live together. It refused to accept a communal arrangement of college students as a family in conformance with the law. Other decisions limited the rights of foster families and refused to accept as families alternative family arrangements such as homosexual unions and cohabiting couples. In these cases, the Court reiterated a long‐standing state and federal judicial commitment to the “traditional” family, especially to the primacy of blood ties, and an aversion to granting alternative family arrangements legal protection. As in decisions involving illegitimate children, unwed fathers, and poor women seeking state‐funded abortions, class and moral commitments of the Court emerged in these decisions. The dual system of family law that had long dominated state rules and rulings—a set of liberationist rules for the middle and upper classes and those in traditional arrangements, and a set of repressive rules for the lower classes, the dependent, and cultural minorities—now appeared in national family jurisprudence.
By the 1990s the Supreme Court had issued extensive rulings on family life. The cases spilled over into issues ranging from religion to gender equity. And the disputes were so intense that they generated apocalyptic statements from the justices and intense debate among the public. Despite their inconsistencies and contradictions, the Court's rulings had redefined the legal and constitutional basis of the American family. Significantly, the Court had become a major source of national family policies. Its decisions helped structure American family life on everything from birth to death.
Bibliography
- Robert A. Burt,
The Constitution of the Family , Supreme Court Review (1979): 329–395. - Michael Grossberg, Governing the Hearth, Law and the Family in Nineteenth Century America (1985).
- Robert H. Mnoonkin etal., In the Interests of Children, Advocacy, Law Reform, and Public Policy (1985).
- Eva Rubin, The Supreme Court and the American Family (1986)
— Michael Grossberg
