The Supreme Court of the United States Versus The American Family

Large-scale wars often take place on several fronts. In its undeclared war against the American family, the Supreme Court of the United States has initiated conflict in several areas of constitutional law. The Court launched its first attacks more than fifty years ago, with the most important developments occurring from roughly 1957 to 1977. Today, the war shows no signs of ceasing. Indeed, to judge from comments offered during the last decade, the High Court takes considerable pride in what it has been doing to undermine the family as a social ideal and as a social institution. Unsurprisingly, the American family—understood since colonial times to the modern era as a lawfully wedded man and woman and any children they have begotten or duly adopted[1]—remains in a precarious position. Critics can hope that the Court will someday repudiate this chapter in its history—along with the concomitant legal doctrines it has constructed—but no one should expect that to happen anytime soon. Some might argue that the Court is not hostile to the family, but is constitutionally obliged to protect the freedoms of all adults, even if the exercise of those freedoms harms important social institutions. Others might say that a proper regard for “American pluralism” justifies the Court’s new posture against the family. But these defenses of the Court are untenable. As the historical record shows, American jurists previously knew that granting constitutional protection to morally dubious freedoms could harm the family, and they accordingly rejected such claims. The argument about pluralism is also specious because the American federal system of government, which includes fifty state legislatures, can accommodate many different religious and cultural traditions. In fact, the Supreme Court sometimes shows little regard for genuine pluralism and imposes a stifling uniformity on the fifty states, preventing them from functioning as “laboratories of democracy” for social
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