Constitutional Failure: The Judicial Assault on the Family in America

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 been 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 the late twentieth century, however, these powers to “channel” human behaviors and “shape” the form and functions of the family took a remarkable new course. “[I]t would not be wrong to talk of a revolution in family law,” wrote Lee Teitelbaum in the Journal of Legal Education.5 In these years, “family law has been transformed,” explained Carl Schneider.6 Importantly, these radical changes were not primarily the result of popular social pressures coming from below. Rather, the driving force was 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 dire
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