|
Visiting America in the 1830's, the
German traveller Francis J. Grund found a land characterized by "early
marriage," "the sanctity of the marriage vow," "rapid increase of population,"
and "domestic happiness." Indeed,
he saw "the domestic virtue of the Americans as the principle source of all
their other qualities," including democratic governance. Grund continued:
No government could be established on the same principle as that of the
United States, with a different code of morals. The American Constitution is remarkable for its simplicity;
but it can only suffice a people habitually correct in their actions, and would
be utterly inadequate to the wants of a different nation. Change the domestic habits of the
Americans, their religious devotion, and their high respect for morality, and
it will not be necessary to change a single letter of the Constitution in order
to vary the whole form of their government...: [T]he disparity which would then
exist between the laws and the habits of those whom they are destined to govern,
would...make a different government...absolutely necessary, to preserve the
nation from ruin.[1]
While clear to a 19th-century
visitor from Europe, this grounding of the American constitutional order in
home, marriage, and family has not been a common object of discussion among
Americans themselves. As legal
scholar Bruce Hafen once put it, "[t]he 'family tradition'...has been such an
obvious presupposition of our culture that it has not been well articulated,
let alone explained or justified."[2]
All the same, it is clear that family law in America has not only
reflected these common assumptions and behaviors, but has also shaped
them. Family law has performed a "channeling function," in Carl E. Schneider's words, where it
"builds...institutions with norms" and offers people "models for organizing
their lives" which have successfully developed over time. For example, "[t]he institution of
marriage which the law recruits and shapes attempts to induce in spouses a
sense of an obligation to...love and honor each other."[3] Legal theorist Martha Fineman agrees that
"[s]tate policies can profoundly affect the form and functioning of the
family."[4]
In recent decades, however, these
powers to "channel" human behaviors and "shape" the form and functions of the
family have taken a remarkable new course. "[I]t would not be wrong to talk of a revolution in family
law," writes Lee Teitelbaum in the Journal of Legal Education.[5] "In the last few decades, family law has been transformed,"
explains Carl Schneider.[6]
Importantly, these radical changes have not been primarily the result of
popular social pressures coming from below. Rather, the driving force has been adoption by the U.S.
Supreme Court and certain inferior courts of a new philosophy of marriage,
family, and sexuality. As legal
analyst Peter J. Riga notes:
These judicial influences on
family law have directly contributed to the change in marriage and family
behavior and in the way people think about marriage and family...The educative
force of law in America is so strong that people tend to draw moral conclusions
for practical living from it which in turn influence social life itself.[7]
As this paper will explain, the
Supreme Court's new social philosophy has aimed at nothing less than an embrace
of the sexual revolution, the extinguishing of traditional marital structures,
the elimination of the autonomous home, and the elevation of the state into a
substitute for the family.
To grasp the scope of this
revolution in marriage and family law, one must first understand the roots and
nature of the original American constitutional order.
The foundations of American family
law lay in the social teachings of the early Christian Fathers, who crafted the
moral basis of Western Christian civilization. Legal historian Charles Reid makes a compelling case that
the "mental universe" of St. Augustine actually shaped the original American
jurisprudence of marriage. Writing
at the end of the fourth century, A.D., Augustine faced two challenges. On the one side stood the Manicheans, a
heretical sect which so focused on the spirit that they practiced total
abstention from reproductive intercourse.
On the other side were the pagan Romans, among whom concubinage,
prostitution, and easy divorce were common. Referring to the innate "sociability" of humankind and
"a
natural companionship between the sexes," Augustine defined the true "goods of
marriage" as threefold: procreation, fidelity, and sacramental permanence. Rejecting both extreme ascetisin and
hedonism, Augustine affirmed that "the marriage of man and woman is something
good."[8]
These principles flowed into the
making of public law. The Code of
Justinian and his Novella 117 appeared in 542 A.D., and together they inaugurated the
formal influence of Christianity on family law in the West.[9]
They portrayed the family as a voluntary covenant union of a man and a woman
resting on mutual fidelity and indissolubility. In 1140 A.D., the canonist
Gratian compiled a vast and systematic legal treatise, the Decretum.
Concerning marriage, he focused on its procreative purpose, condemning those who
used the "poisons of sterility" to prevent conception. At the same time,
he argued that it was the free consent of man and woman, not sexual intercourse,
that made the marriage. A century later, Thomas Aquinas stressed that
marriage rested on the natural law and was designed for procreation and the
education of children. Through their vows, man and woman placed themselves
in the power of the other, making their fidelity a matter of justice. Reid
shows that while the Protestant Reformation denied the sacramental nature of
marriage and introduced certain limited grounds for divorce, the Anglican canon
law held on to Augustine's three "goods" of marriage. Canonist John
Ayliffe (1676-1732), for example, embraced the "three fold matrimonial Good" in
his description of marriage, while Richard Grey, writing in 1732, continued to
emphasize the indissolubility of the marital bond.[10]
This tradition forcefully entered
American law through the person of Chancellor James Kent (1763-1847), an early
leader on the New York bench who had a profound impact on legal thinking in
America. In an 1811 case, Wightman
v. Wightman, Kent affirmed that the natural law
underlay family law. He wrote: "By
the law of nature I understand those fit and just rules of conduct which the
Creator has prescribed to man, as from the deductions of right reason, though
they may be...more explicitly declared by divine revelation." Writing several decades later, he
underscored the transcendent value of the marital relationship:
The primary and most important of
the domestic relations, is that of husband and wife. It has its foundation
in nature, and is the only relation by which Providence has permitted the
continuance of the human race....It is one of the chief foundations of social
order.[11]
Another early architect of American
family law, Joel Bishop, also drew on the Anglican canons:
'As the first cause and reason of
matrimony,' says Ayliffe, 'ought to be the design of having an offspring so the
second ought to be the avoiding of fornication.' These two, observes Dr.
Lushington, the law recognizes as its 'principle ends'; namely, 'a lawful
indulgence of the passions to prevent licentiousness and the procreation of
children according to the evident design of Divine Providence.'[12]
The American Founders gave special
attention to the family institution.
They showed, in historian Nancy Cott's words, a "Christian common sense"
in taking for granted "the rightness of monogamous marriage." In contrast, the Founders associated
polygamy with Oriental absolutism and the harem with tyrannical rule. Drawing from the Baron de Montesquieu's Spirit of the Laws,
they viewed monogamous marriage and republican governance as mirror images of
each other. They reasoned that
Christian monogamy and a free republic were both voluntary unions, premised on
consent.[13] In this spirit, John
Witherspoon, president of Princeton University and signer of the Declaration of
Independence, cited "the absolute necessity of marriage for the service of the
state, and the solid advantages that arise from it."[14] John Adams was even more adamant about
the importance of strong homes to the nation:
[T]he foundations of national
Morality must be laid in private Families. In vain are schools, Accademies
[sic] and universities instituted, if loose Principles and licentious habits are
impressed upon Children in their earliest years.... How is it possible that
Christians can have any just Sense of the sacred Obligations of Morality or
Religion if, from their earliest Infancy, they learn that their Mothers live in
habitual Infidelity to their fathers, and their fathers in as constant
Infidelity to their Mothers.[15]
Visitors to the new republic
commented frequently on the special American attachments to marriage and
family. Francis Grund, cited at
the outset, emphasized how the American practice of early marriage brought
prosperity. The successful
merchants and shipowners, the leading manufacturers, and the owners of the
largest farms and estates "are married men; and what is still more remarkable,
have acquired their property, not before, but after, their marriage."[16] Grund's better known contemporary,
Alexis de Tocqueville, found Americans unusually committed to strong and
faithful unions:
There is certainly no country in
the world where the tie of marriage is more respected than in America, or where
conjugal happiness is more highly or worthily appreciated.... While the European
endeavors to forget his domestic troubles by agitating society, the American
derives from his own home that love of order which he afterwards carries with
him into public affairs.[17]
As had Grund,
Tocqueville saw America's unique balance between liberty and order resting on a
strong family system.
In the spirit of St. Augustine,
court decisions among the states during the 19th century underscored the
importance of procreation. In
1847, the Pennsylvania Supreme Court ruled that "the paramount purpose of
marriage [is] the procreation and protection of legitimate children, the
institution of families, and the creation of natural relations among mankind;
from which proceed all the civilization, virtue, and happiness to be found in
the world."[18]
The Supreme Judicial Court of Massachusetts reached a similar conclusion in
1862: "[O]ne of the leading and most important objects of the institution of
marriage under our laws is the procreation of children, who shall with certainty
be known by their parents as the pure offspring of their union."[19]
Controversy over the Mormon practice
of polygamy brought the U.S. Supreme Court deeply into family law for the first
time and produced remarkable statements on the importance of monogamous
marriage to the commonweal. In Reynolds v. the United States, the court linked polygamy to the
despotic societies of Asia and Africa.
In contrast, democratic "society may be said to be built" on monogamous
marriage.[20]
In Murphy v. Ramsey, the Supreme Court raised the tone still higher, arguing
that no legislation could be "more wholesome and necessary" in the founding of a
"free, self-governing commonwealth" than that which sees the family "as
consisting in and springing from the union for life of one man and one woman in
the holy estate of matrimony." This family model would be "the best
guaranty of that reverent morality which is the source of all beneficient
progress in social and political improvement."[21]
While dealing
with divorce rather than polygamy, the Supreme Court in Maynard v. Hill affirmed
the great import of matrimony in a still more powerful manner. Marriage
"is something more than a mere contract," the Court ruled. While the
consent of man and woman was of course essential, the marriage contract created
a relationship between the two "which they cannot change." While other
contracts could be "modified, restricted,...enlarged," or even broken, "[n]ot so
with marriage." Once formed, the law stepped in and enforced distinctive
obligations and duties. This happened because marriage was "an
institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society."[22]
The first seven decades of the 20th
century witnessed Supreme Court decisions that continued, in fine Augustinian
fashion, to affirm the family as natural and autonomous. In 1923, the Court ruled in Meyer v. Nebraska that it was
"the natural duty of
the parent" to educate his child.[23]
Two years later, the Supreme Court declared in Pierce v. Society of Sisters that the
"child is not the mere
creature of the State" and affirmed "the liberty of parents and guardians to
direct the upbringing and education of children under their control."[24] In 1944, the Court recognized that
"the
custody, care and nurture of the child" resided first and foremost with parents
whose primary functions and freedoms "the state can neither supply nor
hinder." These formed "the private
realm of family life which the state cannot enter."[25]
Other court decisions in the
mid-20th century remained faithful to the Augustinian "goods of marriage"
embraced by the American Founders.
In Skinner
v. Oklahoma, the
Supreme Court struck down a mandatory sterilization act, declaring that
"[m]arriage and procreation are fundamental to the very existence and survival
of the race."[26] In 1957,
California Justice Roger Traynor drew on the corpus of extant Supreme Court
decisions and ably summarized the place of the family in American law:
The family is the basic unit of
our society, the center of the personal affections that enoble and enrich human
life. It channels biological drives that might otherwise become socially
destructive; it ensures the care and education of children in a stable
environment; it establishes continuity from one generation to another; it
nurtures and develops the individual initiative that distinguishes a free
people.[27]
Even after the revolution in family
law had begun, some court rulings continued to reflect this prior line of
thinking. In 1971, the Minnesota
Supreme Court noted that "[t]he institution of marriage as a union of man and
woman, uniquely involving the procreation and rearing of children within a
family, is as old as the book of Genesis."[28] In Wisconsin v. Yoder, decided the same year, the U.S. Supreme Court elevated the
"fundamental interest of parents" over that of the state relative to the
education and rearing of children.[29]
The Washington state Court of Appeals, in a 1974 case regarding claims
to same-sex marriage, ruled that "the state views marriage as the appropriate
and desirable forum for procreation and the rearing of children," adding "that
marriage exists as a protected legal institution primarily because of societal
values associated with the propagation of the human race."[30] As late as 1982, the Utah Supreme Court
could argue that "[t]he rights inherent in family relationships—husband-wife,
parent-child, and sibling—are the most obvious example of rights retained by
the people." Indeed, such rights "are 'natural,' 'intrinsic,' or 'prior' in the sense that our Constitution
presupposes them."[31]
All the same, by the mid-1960's an
alternate vision of family life and family law was taking form within the
judiciary. It arose out of secular
liberal thought as both a consequence and a reinforcement of the
de-Christianization of American culture.
This intellectual revolution proved to be particularly intense at
American universities and law schools.
In the name of equal protection and due process, this new vision would
embrace the tenets of the sexual revolution, dismantle marriage, and subvert
the autonomy of the home. The end
result would be to magnify the power and sweep of the state.
Early straws in
the wind came as dissents in Poe v. Ullman, a 1961 case involving a state of
Connecticut ban on the use of contraceptives by married couples. For the
first time, William O. Douglas claimed to see "the privacy that is implicit in a
free society" residing within "the intimacies of the marriage relationship."
In his dissent, John Harlan argued that the marital activity at issue involved
not only procedural rights, but substantive rights as well. He believed
that these rights should be applied in this case as the Court sought a balance
between "respect for the liberty of the individual" and "the demands of
organized society."[32]
In Griswold v. Connecticut, decided four years later, these
appeals to "privacy" and substantive due process came together to begin the
destruction of traditional American family law. In striking down the same measure it had ruled
constitutional four years earlier, the Supreme Court cleverly appealed to the "sacred precincts of marital bedrooms."
Writing for the majority now, Justice Douglas grounded the Court's
decision in a constitutional "penumbra" of personal privacy that supposedly
emanated from the Bill of Rights.
He stated:
We deal with a right of privacy
older than the Bill of Rights.... Marriage is a coming together for better or
worse, hopefully enduring, and intimate to the degree of being sacred....It is
an association for as noble a purpose as any involved in our prior decisions.[33]
According to legal scholar Peter Riga,
this appeal to the sacred nature of marriage in Griswold "was at least logical and
historical," even if the new right to privacy had no basis in the
Constitution.[34] The moral and
social revolution implicit in "privacy" only became apparent in the 1972
decision in Eisenstadt v. Baird,
where the court struck down a ban on contraceptive use by the unmarried, as
well. Rejecting its 1965 appeal to
the "sacred precincts" of the marital bedroom, the Court now ruled that "whatever the rights of the individual to access to contraceptives might be,
the rights must be the same for the married and unmarried alike." The Court went on to weaken drastically
the ability of a state or community to distinguish a married-couple family from
other living situations. Upending
over 1,500 years of jurisprudence, the Court argued:
It is true that in Griswold the
right of privacy inhered in the marital relationship. Yet the marital
couple is not an independent entity with a mind and heart of its own, but an
association of two individuals each with a separate intellectual and emotional
make up. If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision to
bear or beget a child.[35]
Through these words, the
U.S. Supreme Court essentially enlisted in the Sexual Revolution.
According to Riga, the Eisenstadt decision was
"radical," "confusing," alien to the "rooted traditions" of the American people, and
without any foundation in constitutional law.[36] All the same, its logic flowed into a series of decisions
that dismantled key functions and most legal protections of the family. In the 1973 abortion cases, for
example, the new right of a woman to abort a child during the first trimester
of pregnancy was rooted in the same appeal to privacy. Significantly, relative to family
relations, the Court's ruling made no distinction between Jane Roe, the
unmarried plantiff, and Mary Roe, who was married.[37] The Supreme Court's 1976 decision in Planned Parenthood
of Missouri v. Danforth stripped the father of an unborn
child—whether married to the mother or not—of any right to affect the mother's
abortion decision.[38] A year later,
the Court also stripped parents and state governments of any controls over the
sale or gift of contraceptives to minor children. Here again, "privacy" trumped family autonomy and parental
rights, with the Court ruling that "it is clear that among the decisions that
an individual may make without unjustified interference are personal
decisions,"[39] including the use of birth control.
In a subsequent case denying a
parental veto over an abortion by a minor, the radical antinomianism flowing
out of Eisenstadt
became starkly clear. Denying any
notion of natural law or moral order, and rejecting over a millennia of
Christian influence on the law, the U.S. Supreme Court reasoned that "[a]t the
heart of liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life."[40]
In 2003, the Court used the same gnostic thinking to strike down the Texas
anti-sodomy law, ruling that the right to privacy also encompasses the behavior
of homosexuals: "Their right to liberty under the Due Process Clause gives
them the full right to engage in their conduct without intervention of the
government."[41]
While the right to privacy provided
cover for the Court's embrace of the Sexual Revolution, another line of cases
between 1967 and 2005 transformed the nature of marriage in another way. The broad trend has been from a view of
marriage as a social institution with binding claims of its own and with
prescribed roles for men and women into a free association, easily entered and
easily broken, with a focus on the needs of individuals. However, the ironical result of so
expanding "the freedom to marry" has been to enhance the authority and sway of
government.
The new moral
relativism toward marriage first surfaced in Associate Justice Frank Murphy's
dissent in the 1946 case, Cleveland v. U.S. While the majority of the U.S.
Supreme Court ruled here that polygamy remained a practice of debauchery,
lewdness, and immorality, Murphy took a new approach. Rather than being
"odious," he said that polygamy was "one of the basic forms of marriage," to be
found around the globe. Even if distasteful to Americans, polygamy was "a
form of marriage built upon a set of social and moral principles" that deserved
legal recognition.[42]
The marital revolution commenced in
1967 with Loving
v. Virginia. Here, the U.S. Supreme Court struck
down a provision that denied marriage to persons of different races. On the one hand, this action was a
logical and welcome component of the civil rights and desegregation campaigns
of the 1960's. However, the Court
went beyond the simple logic of requiring "equal protection" of the laws, which
would have sufficed here. Instead,
it chose to recognize in sweeping language "the right to marry" as one of the "basic civil rights of man," fundamental to
"our very existence and
survival." This freedom to marry,
the justices continued, was "one of the vital personal rights essential to the
orderly pursuit of happiness by free men."[43]
While such language seemed on the surface to elevate marriage, in practice it
diminished the institution. Loving took a social institution, with its own
rights and claims, and redefined it as a personal choice, a matter governed by
the rights of the individual. According to Dean Robert Drinan, SJ, this
decision mandated "a complete rethinking" of American marriage law, for it
implied "that the state and the law should say as little as possible about who
should marry whom."[44]
Subsequent decisions revealed the
full logic of Loving. In Boddie v. Connecticut, decided in 1971, the Supreme Court
struck down a provision placing certain financial requirements on indigent
persons seeking divorce. Such
measures, the Court reasoned, were impermissible burdens on the newly
recognized freedom to end a marriage.[45]
As legal scholar Carl Anderson comments, "[t]he original freedom to
marry had now become the freedom to divorce without cost."[46] The Court's decision in Eisenstadt, as noted earlier in another
context, denied to the states the power to differentiate between citizens of
varying marital status.[47] In the
celebrated case of Marvin v. Marvin, the California Supreme Court ruled that cohabitating
couples could claim some of the legal financial obligations formerly attached
only to marriage.[48] In effect, the
distinction between marriage and non-marriage diminished again.
Other decisions followed. In 1979, the U.S. Supreme Court ruled
in Zablocki v. Redhail that the state of Wisconsin could
not place significant limitations on the acts of marriage, divorce, or
remarriage. Justice Thurgood
Marshall, writing for the Court, said that the "freedom to marry" allowed
legislators to construct only "regulations that do not significantly interfere
with" these decisions.[49] In Turner v. Safley, the Supreme Court defined the
essence of marriage to be: "expressions of emotional support and public
commitment"; an expectation of consummation; and "the receipt of government
benefits." What began as an
institution focused on procreation, fidelity, permanence, and social order had
become instead a highly personalized extension of the welfare state.[50]
As legal theorist Richard Posner has summarized, through this string of cases
"the contemporary Court has simply 'deregulated' the family in much the same way
that its discredited predecessors prevented states from regulating business."[51]
Recent "same-sex marriage" cases
have further altered and weakened the institution of the marriage-based
family. In its 1993 decision in Baehr v. Lewin, the Hawaii Supreme Court took a
minimalist view of marriage. Where
the prior legal tradition understood marriage as pre-existing the state, this
Court defined marriage as a "state conferred legal status." Where the prior tradition emphasized
procreation, fidelity, and permanence, the new one saw marriage as simply "a
partnership to which both parties bring their financial resources as well as
their individual energies and efforts."[52]
In a similar case, an Alaska judge relabeled the right to marry as "the
right to choose one's life partner," completely abandoning the historic
connections of marriage to children and civil society.[53] Turning to sentiment, the Supreme Court
of Vermont ruled in Baker v. State that homosexuals asking for marriage were mere
"Vermonters
who seek nothing more, nor less, than legal protection and security for their
avowed commitment to an intimate and lasting human relationship...a recognition
of our common humanity." In an age
of reproductive technology, and given the Vermont legislature's willingness to
allow same-sex couples to adopt children, the Court could find no legally
meaningful differences between same-sex and opposite-sex couples.[54] Rewriting history, the Massachusetts
Supreme Judicial Court declared in Goodridge v. Department of Public Health:
Simply put, the government creates
civil marriage. In Massachusetts, civil marriage is, and since
pre-Colonial days has been, precisely what its name implies: a wholly secular
institution.[55]
Implying that marriage is good for
the individual's self-esteem, the Court concluded that "[c]ivil marriage is at
once a deeply personal commitment to another human being and a highly public
celebration of the ideals of mutuality, companionship, intimacy, fidelity, and
family."[56] Meanwhile, the
Washington state Superior Court in Anderson v. King County further minimalized marriage,
ruling in 2004 that "[t]o 'marry' means to join together in a close and
personal way."[57] This was a far
cry from Augustine's goods of marriage.
As early as 1979, Peter Riga could
conclude that this de-institutionalizing process meant that marriage was no
longer a legal category on which the state could predicate exclusive sexual
relations, govern parent-child relations, regulate state financial assistance,
or control the sexual conduct of minors.
And there were consequences.
Carl Anderson has traced how the Supreme Court's Griswold and Loving decisions gave direct impetus to
the "no fault" divorce revolution, launched in California in 1969, and also
advanced the radical Uniform Marriage and Divorce Act of 1970, drafted by the
National Conference of Commissioners on Uniform State Laws.[58] In addition, it seems to be no
coincidence that the revolution in marriage law, launched by Griswold (1965) and Loving (1967) and climaxing in Eisenstadt (1972), exactly coincides with the
collapse of America's 20th-century culture of marriage. Consider the table below
(America’s Mid-Century “Culture of Marriage”).
|
America’s Mid-Century “Culture of Marriage” |
|
Year |
Marriage
Rate* |
% Above
Base Year
(1932) |
|
1932 |
56.0 |
0% |
|
1936 |
74.0 |
+32% |
|
1940 |
82.8 |
+48% |
|
1944 |
76.5 |
+37% |
|
1948 |
98.5 |
+76% |
|
1952 |
83.2 |
+49% |
|
1956 |
82.4 |
+47% |
|
1960 |
73.5 |
+31% |
|
1964 |
74.6 |
+33% |
|
1968 |
79.1 |
+41% |
|
1972 |
76.5 |
+37% |
|
(Eisenstadt v. Baird) |
|
1976 |
64.8 |
+16% |
|
1980 |
61.4 |
+10% |
|
1984 |
59.5 |
+ 6% |
|
1988 |
54.6 |
- 3% |
|
1992 |
53.3 |
- 5% |
|
1996 |
49.7 |
- 11% |
|
|
*Marriages per 1,000 Unmarried Women,
15 years & older |
|
It shows the mid-century American
"marriage boom," from a Depression-era low in 1932 (which is used as the base
here) to a peak in the late 1940's, and revealing strength as late as
1972. The numbers fall sharply
only after the Eisenstadt decision, and the boom finally disappears during the
1980's. While other forces and
factors were surely involved, the American judiciary's philosophical choice of Eisenstadt over Augustine bore here very
bitter fruit.
Over the same years, the federal
courts also radically altered the meaning of parenthood. The primary targets here were the
concepts of "legitimate" and "illegitimate" births. These distinctions were old. Indeed, they reached back into the early centuries of
Western Civilization. The purposes
behind them were simple and clear.
First, a "legitimate" birth assured that the new child would have a
permanent claim on a father's support because that father would be reasonably
sure that the child was, in fact, his own. Second, laws built on these distinctions discouraged
illegitimate births, encouraged marriage between a newly pregnant woman and her
lover, and created incentives for parents to legitimize children already
born. Third, these distinctions
restrained the number of impoverished, mother-only households needing support
from the community or state.
All the same, between 1968 and 1973,
the U.S. Supreme Court essentially abolished "illegitimacy." In effect, the justices decided that
the harm done to children labelled as "illegitimate" greatly outweighed such
social purposes. Viewed from
another angle, the public goals of family law were sacrificed once more to the
pursuit of individual rights.
Both Levy v. Louisiana and Glona v. American Guarantee and
Liability Ins. Co.,
decided in 1968, involved a wrongful death statute in Louisiana. In Levy, the U.S. Supreme Court ruled that
illegitimate children had the right to file a wrongful death suit over the demise
of their mother. Writing for the
majority, Justice Douglas underscored "that illegitimate children are not
'nonpersons.' They are humans,
live, and have their being. They
are clearly 'persons' within the meaning of the Equal Protection Clause of the
14th Amendment." He added that "it
is invidious to discriminate against them when no action, conduct, or demeanor
of theirs is possibly relevant to the harm that was done the mother."[59] For similar reasons, the Court ruled in Glona that the
mother of an illegitimate child had the right to seek recompense for the
wrongful death of her child.[60]
The Supreme Court returned to the
issue in the early 1970's. At
issue in Weber
v. Aetna Casualty Insurance Company was a Louisiana statute that gave preference to legitimate
children in the recovery of worker's compensation benefits. Again, the Court overturned the
law. Writing for the majority,
Louis Powell underscored the break being made with legal history:
The status of illegitimacy has
expressed through the ages society's condemnation of irresponsible liaisons
beyond the bonds of marriage. But visiting this condemnation on the head
of the infant is illogical and unjust. Moreover, imposing disability on
the illegitimate child is contrary to the best interests of our system.[61]
The following
year, in New Jersey Welfare Rights Organization v. Cahill, the Court reached a
similar conclusion. At issue were welfare benefits paid only to married
persons with children born in wedlock. A three-judge federal court had
found the restriction to be rational, a way "to preserve and strengthen
traditional family life." The Supreme Court reversed the decision, finding
such a purpose irrelevant. Instead, the court insisted that children could
not be penalized by unequal state treatment.[62]
|
Births to Unmarried White Women |
|
(as a percentage of all births) |
|
1965 |
4.0% |
|
[(1968) Levy v. Louisiana] |
|
1970 |
5.7% |
|
1975 |
7.3% |
|
1980 |
11.0% |
|
1985 |
15.0% |
|
1990 |
20.0% |
|
1995 |
25.3% |
|
2000 |
27.1% |
|
|
Source: Statistical Abstract of the United States |
Modern sensibilities, of course,
focus sympathy on the child born out of wedlock. All the same, the consequences of eliminating
"illegitimacy"
are large. Through this act,
marriage is both diminished and discouraged. The number of "out-of-wedlock" births predictably
grows. As the table at right
indicates, the explosion in out-of-wedlock births among white women correlates
precisely with the dismantling of "illegitimacy" as a legal concept through the
1968 Levy and Glona decisions (the rise in
out-of-wedlock births among African Americans occurred earlier and was clearly
driven by other causes, such as the legacy of slavery and the disorienting
migration of rural southern blacks to northern cities in the early 20th
century[63]):
Fatherhood, too, is diminished by
the end to "illegitimacy," while the support willingly provided by fathers to
children predictably falls. In
consequence, welfare costs rise, as does the need for state apparati to track
down absent fathers and collect child support. Children without fathers in their homes, particularly boys,
also show much higher levels of school failure, criminality, illegal drug use,
and incarceration. In the end, the
only winner here is the welfare state.
Married in 1972, just prior to the Eisenstadt decision, your author here stands
as one of the last Americans to be bound in wedlock under the Augustinian
dispensation. The revolution
launched against it continues to our day.
Some radical legal voices, who view the marital bond as slavery and
happily married women as "the 'house niggers' of slave culture," urge the
complete abolition of marriage.[64]
More refined legal theorists, such as those at the American Law
Institute (ALI), would achieve the same end through incremental steps. In 2000, for example, the ALI
promulgated a new set of recommendations, Principles of the Law of Family
Dissolution: Analysis and Recommendations. Key
values driving the document include efforts to: "minimize reliance on
stereotypes"; "preserve diversity in parenting arrangements"; eliminate "sexual
orientation" and "sexual conduct" in determining child custody; recognize "de
facto" parents as having claims on children equal to those of biological
parents; and reduce marriage to a "legal formality" with no intrinsic
claims.[65] As early as 1979, Peter
Riga concluded that the "mental universe" behind Eisenstadt could find no state interest
"forbidding simultaneous
polygamy, or polyandry, since this has to do with the fundamental rights of
privacy, marriage, and consenting adults."[66] And indeed, new polygamy cases are now moving their way
through the federal court system: "the next frontier in the freedom to marry,"
advocates claim.
Freedom, though, will not be the
result. As the American Founders
understood, marriage and the autonomous family were the true bulwarks of
liberty, for they were the principle rivals to the state. The English author G.K. Chesterton has
made the same point. Writing
nearly a century ago, he argued that "the institution of the home is the one
anarchist institution....It is the only check on the state that is bound to
renew itself as eternally as the state, and more naturally than the
state."[67] And surely, as the
American judiciary has deconstructed marriage and the family over the last 40
years, the result has been the growth of government. Legal scholar Mary Ann Glendon describes
"the modern
attenuated nuclear family with loose blood and conjugal ties, where jobs and
entitlements of various sorts are the most important forms of wealth, and a
person's status in the 'feudalism of the new property' is derived from his
occupation or his dependency relation with government."[68] Historian Nancy Cott concludes that
marriage and family in America have already surrendered most authority to the
state:
...the interweaving or intrusion
of government presence in the lives of individuals through their employment,
schooling, immigration, taxation, social welfare, travel, and so on, has
advanced so far that all are already in the state's grasp.[69]
In good Orwellian
fashion, Americans have surrendered their liberty in the name of freedom.
Can
these developments be reversed?
Might a Supreme Court guided by Chief Justice John Roberts, with Samuel
Alito, Antonin Scalia, and Clarence Thomas at his side, launch a counter
revolution in family law? Could
they decouple the "right to privacy" from the sexual revolution? Might they overturn the
"freedom to
marry"? Could they restore "illegitimacy" as a concept of law?
The odds are long. All the
same, the future of what is left of the American
Republic depends on the answers to these questions.
Endnotes:
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