THE LAW OF MARRIAGE AND FAMILY

DEVELOPMENTS - BOOKPROOFS 05/12/03 – 10:03 AM

DEVELOPMENTS IN THE LAW

"Great families of yesterday we show,And lords whose parents were the Lord knows who."

DANIEL DEFOE, THE TRUE-BORN ENGLISHMAN

pt. 1, l. 374 (1701).

"[G]roups that have historically been the target of discrimination cannote expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one stepat a time."

Vriend v. Alberta, [1998] 1 S.C.R. 493, 559 (Can.) (Iacobucci, J.).

"The possibility of divorce renders both marriage partners stricter in their observance of the duties they owe to each other."

DENIS DIDEROT, Observations on the Drawing Up of Laws, in SELECTED WRITINGS (Lester G. Crocker ed., 1966)

"The value of the institution of marriage is that it justifies the existence of sexual relations between a man and a woman. . . . [I]n the sexual relationship between man and woman two orders meet: the order of nature, which has as its object reproduction, and the personal order, which finds its expression in the love of persons and aims at the fullest realization of that love."

KAROL WOJTYLA, LOVE AND RESPONSIBILITY 224, 226

(H.T. Willetts trans., 1981) (1960)

"The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925)

DEVELOPMENTS - BOOKPROOFS 05/12/03 – 10:03 AM

2003] DEVELOPMENTS — THE LAW OF MARRIAGE AND FAMILY 1999

I. INTRODUCTION: NUCLEAR NONPROLIFERATION

On June 24, 2002, the White House acknowledged in a one-sentence e-mail that President Bush had signed into law a bill allowing members of same-sex couples to receive federal death benefits.1 The Mychal Judge Police and Fire Chaplains Public Safety Officers’ Benefit Act of 20022 — named in honor of Rev. Mychal Judge, the New York Police Department chaplain who was the first official victim of the September 11 terrorist attacks — offers no indication on its face that it is the first federal law to extend government benefits to samesex couples.3 The Act contains no reference to sexual orientation; instead, it simply extends eligibility for the $250,000 federal benefit for survivors of public safety officers killed in the line of duty to include any "individual designated by such officer as beneficiary under such officer’s most recently executed life insurance policy."4

The House Committee Report similarly avoids the issue, observing simply that prior law limited beneficiaries to "the spouse, child, or parent of the decedent."5 Conservative critics, however, perceived a statement implicit in the Mychal Judge Act: "Homosexual folks see this as a first step toward recognizing homosexuality on the same level as marriage, and that’s what it will be used for."6 The Mychal Judge Act does not, of course, effect federal recognition of same-sex marriage. It is, however, one of the myriad ways in which American law increasingly accommodates the variant modes of American family life. Writing for the plurality in the Supreme Court’s 2000 decision in Troxel v. Granville,7 Justice O’Connor observed — in a quip now popular among family law commentators8 — that "[t]he demographic changes of the past century make it difficult to speak of

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

1 Mike Allen, Law Extends Benefits to Same-Sex Couples: Firefighters, Officers Killed onDuty Covered, WASH. POST, June 26, 2002, at A8.

2 Pub. L. No. 107-196, 116 Stat. 719 (amending 42 U.S.C.A. §§ 3796, 3796b (West 1994 &Supp. 2002)).

3 See Allen, supra note 1 (noting that "[d]omestic partners are not included in other federal death benefits").

4 § 2(b)(4), 116 Stat. at 719 (amending 42 U.S.C.A. § 3796(a) (West 1994 & Supp. 2002)). The Act retains priority for spouses and children over other beneficiaries, as the life insurance beneficiary provision kicks in only if the decedent has no surviving spouse or child. Id.

5 H.R. REP. NO. 107-384, at 3 (2002).

6 Allen, supra note 1 (quoting Rev. Lou Sheldon, chairman of the Traditional Values Coalition).

The White House disclaimed any such effect, stating that the Act simply honors the wishes of victims. A White House spokesman noted pointedly that the Act "is not a determination of legal status." Id.

7 530 U.S. 57 (2000).

8 A February 24, 2003 search in Westlaw’s Journals and Law Reviews (JLR) database yielded twenty-two articles quoting Troxel for the phrase "difficult to speak of an average American family."

2000 HARVARD LAW REVIEW [Vol. 116:1996

an average American family."9 So, too, have the resulting legal changes made it difficult to speak of a coherent American family law. The Mychal Judge Act notwithstanding, family law is almost exclusively in the custody of the states,10 and the unique demographic and cultural circumstances of each state have engendered considerable variation in the law governing marriage and divorce, parenthood and child support, and other aspects of family life. This variation — and the concomitant lack of clarity and predictability for litigants — eventually prompted the American Law Institute (ALI) to make its first foray into the field of family law, with the goal of defining "a legal framework that can accommodate the different choices people makeand the different expectations they bring to their family relationships."

11 The ALI published its Principles of the Law of Family Dissolution in 2002.12 Perhaps inevitably, ALI Principles has already drawn fire for failing to reflect the full range of perspectives on the American family.13 In this Development, the Harvard Law Review assesses the present gap — to paraphrase Dean Pound — between the family in casebooks and the family in action. 14 The purpose is to step beyond reactions to specific cases or legislation and to synthesize the recent innovations, both primary and secondary, in the law of marriage and family. The choice of subtopics accordingly reflects two principal questions. First, where does American family law best reflect, and where does it most clearly abandon, modern American family practice? Second, what legitimate interests do states possess in the forms of American families? The answers to these questions will drive family law reform for years to come.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

9 Troxel, 530 U.S. at 63.

10 See, e.g., Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that federal courts lack jurisdiction to issue decrees pertaining to divorce, alimony, or child custody); Sosna v. Iowa, 419 U.S. 393, 404 (1975) (describing domestic relations as "an area that has long been regarded as a virtually exclusive province of the States"). Of course, some of the most cherished rights in family law flow from the federal Constitution. See, e.g., Troxel, 530 U.S. at 65 (observing that "the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court").

11 Lance Liebman, Director’s Foreword to AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS, at xv, xv (2002) [hereinafter ALI PRINCIPLES].

12 ALI PRINCIPLES, supra note 11.

13 See, e.g., David Westfall, Forcing Incidents of Marriage on Unmarried Cohabitants: The American Law Institute’s Principles of Family Dissolution, 76 NOTRE DAME L. REV. 1467, 1469 (2001) (stating that ALI Principles "may not reflect the views of even a substantial minority of the [ALI] membership").

14 Cf. Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910).

A. The American Family in Practice

The 2000 Census exposed, in empirical splendor, the divergent forms of the modern American family. Traditional family structures are less prevalent now than ever before in U.S. history. The "nuclear family"15 — still the archetype in American law and politics16 — for the first time describes less than one-quarter of all U.S. households.17 Indeed, an American household picked at random today is more likely to contain a person living alone than a nuclear family.18 At the same time, single parents now constitute nearly one-third of all households with children.19 Local conditions exaggerate these effects: in Washington, D.C., for example, single mothers with children now outnumber married couples with children.20 The rates of change, too, are surprising: since 1990, the number of "nonfamily" households grew at more than twice the rate of "family"

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

15 Anthropologist George Murdock coined the term "nuclear family" in 1949 to describe a married man and woman living together with their offspring. See GEORGE PETER MURDOCK, SOCIAL STRUCTURE 1 (1949). The implicit reference to atomic physics was deliberate: "Among the majority of the peoples of the earth," he wrote, "nuclear families are combined, like atoms in a molecule, into larger aggregates." Id. at 1–2. More pointedly, Murdock observed that in American society, the nuclear family was "the type of family recognized to the exclusion of all others." Id. at 1. Murdock would scarcely recognize the American family of 2003.

16 Many commentators have noted the bias in favor of nuclear families in American law. See, e.g., Martha Albertson Fineman, Our Sacred Institution: The Ideal of the Family in American Law and Society, 1993 UTAH L. REV. 387 (discussing the grip of the "traditional family metana rrative" in American legal and extralegal institutions); Linda Kelley, Family Planning, American Style, 52 ALA. L. REV. 943 (2001) (discussing the nuclear family ideal in immigration law); David D. Meyer, Self-Definition in the Constitution of Faith and Family , 86 MINN. L. REV. 791 (2002) (arguing that constitutional doctrines protecting marriage, childrearing, and other aspects of family life embody static and traditional concepts of family); Richard F. Storrow, The Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Constitutional Law and Policy Reform, 66 MO. L. REV. 527 (2001) (arguing that the constitutional law of family privacy reflects a policy of promoting nuclear families).

The preference for nuclear families in American politics is equally plain. To cite but one example, the House of Representatives approved a bill in February 2003 that would authorize the federal government to issue "healthy marriage promotion grants" to states adopting "innovative programs designed to promote and support healthy, married, two-parent families." Personal Responsibility, Work, and Family Promotion Act of 2003, H.R. 4, 108th Cong. § 103.

17 Married couples with children constituted 24.1% of American households in 2000, down from 26.3% in 1990 and 40.3% in 1970. See JASON FIELDS & LYNNE M. CASPER, U.S. CENSUS BUREAU, U.S. DEP’T OF COMMERCE, AMERICA’S FAMILIES AND LIVING ARRANGEMENTS:

POPULATION CHARACTERISTICS 3 fig.1 (2001). In the terminology of the U.S. Census Bureau, a "household" is any housing unit containing one or more persons; every person living in the unit is considered part of that household. Id. at 1.

18 Twenty-six percent of households are persons living alone, of which the majority (58%) are women. Id. at 3.

19 See id. at 7. Single mothers make up 26% of families with children; single fathers make up 5%. In 1970, the corresponding figures were 12% and 1% respectively. Id.

20 TAVIA SIMMONS & GRACE O’NEILL, U.S. CENSUS BUREAU, U.S. DEP’T OF COMMERCE, HOUSEHOLDS AND FAMILIES: 2000, at 7 (2001).

2002 HARVARD LAW REVIEW [Vol. 116:1996

households.21 While the proportion of households comprising married couples without children has remained fairly constant for decades,22 the number of unmarried-partner households rose sharply from 3.2 million in 1990 to 5.5 million, or 5.2% of all households, in 2000.23 Moreover, more than two-fifths of unmarried cohabiting couples in 2000 lived with minor children — only slightly less than the proportion of married couples with minor children (46%).24

These data admit of no tidy summary; indeed, their untidiness is the point. As this Development illustrates, the Mychal Judge Act is far from the only instance in which the law has responded, however grudgingly, to the disparate forms of American family life. Yet what also emerges from the Parts that follow is that the law — federal and state, constitutional and statutory, procedural and substantive — continues to conceive of "family" status in a way that Americans, in practice, do not.

B. Overview: Developments in the Law

Part II25 kicks off this Development by examining the most controversial of the threshold qualifications for legal marriage in America: the heterosexuality requirement. Locating the American same-sex marriage debate in the context of larger international developments, this Part both draws lessons from the European experience and identifies trends uniquely American — for example, the unusual willingness of American courts to permit same-sex couples to adopt children and form families, notwithstanding restrictions on same-sex marriage. After evaluating the disparate rationales for same-sex unions articulated by courts in Hawaii, Alaska, and Vermont, Part II concludes with an assessment of the opportunities and obstacles facing advocates of same-sex unions across the United States. Because it is the prerogative of individual states to control access to "family" status within their borders, however, recognition of same-sex marriage in one state does not automatically expand the marital privilege elsewhere. Part III26 takes up the narrow but important question whether the federal Constitution imposes any obligation on states to

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

21 The number of family households increased by 11%, compared with a 23% increase in nonfamily households. Id. at 1. "Family" households include two or more people related by blood, marriage, or adoption; they may also include unrelated persons. "Nonfamily" households are persons living alone, as well as households with two or more persons, all of whom are unrelated (for example, roommates or same-sex partners). Id.

22 FIELDS & CASPER, supra note 17, at 3. Married couples without children were 29% of all households in 2000, compared to 30% in 1970. Id.

23 SIMMONS & O’NEILL, supra note 20, at 7.24 FIELDS & CASPER, supra note 17, at 13.25 See infra pp. 2004–27.26 See infra pp. 2028–51.

2003] DEVELOPMENTS — THE LAW OF MARRIAGE AND FAMILY 2003

recognize same-sex marriages legally celebrated in other states. Surveying the jurisprudence of the Full Faith and Credit Clause and the Due Process Clause as constitutional constraints on state choice-of-law practices, Part III dissects the circumstances under which marriage choice-of-law issues could arise and assesses the most plausible cases for mandatory recognition of out-of-state marriages, concluding that the Constitution likely places no affirmative duty on states to recognize nontraditional marriages permitted by other states.

Part IV27 shifts the lens from marriage to parenthood, examining how the "changing realities of the American family"28 have altered traditional legal rules governing parental status and parental rights. It highlights three interrelated developments — the erosion of the presumption that parents always act in the best interests of their children, the erosion of the nuclear model of the family in adjudicating parental rights, and the collective failure of courts and legislatures to reconcile traditional assumptions about parenthood with new reproductive technologies — and suggests that the law of parenthood, like the American family itself, is in the midst of a remarkable, if painful, turn away from tradition.

If Parts II through IV ask how the law creates and defines families, Parts V and VI ask how the law breaks them apart. Part V29 uses the law of divorce to examine a basic and growing tension at the heart of family law: the conflicting conceptions of marriage as public status, marriage as contract, and marriage as partnership. Divorce law in every state reflects each of these notions to some degree. This Part draws out the conflict among these ideas by tracing developments in the law of antenuptial agreements, including innovations introduced in ALI Principles, and comparing the norms embodied in those developments to those embodied in widely accepted principles of equitable distribution of marital property upon divorce.

Finally, Part VI30 focuses on the unified family court (UFC) movement and, in particular, its approach to the ultimate question in child protection cases: whether and when to dissolve the parent-child relationship. Endorsed by the American Bar Association and increasingly adopted in jurisdictions around the country, the UFC model features a hands-on, "one family, one judge" approach that is designed to facilitate the long-term revitalization of families in crisis. Yet UFCs are nevertheless courts of law and must therefore enforce federal child protection legislation that prioritizes placing children in stable homes over

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

27 See infra pp. 2052–74.

28 Troxel v. Granville, 530 U.S. 57, 64 (2000).

29 See infra pp. 2075–98.

30 See infra pp. 2099–122.

2004 HARVARD LAW REVIEW [Vol. 116:1996

sustained efforts to preserve existing families.31 The result, this Part concludes, is uncertainty regarding whether the UFC model, as implemented, fulfills its commitment to family integrity.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

31 See Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified asamended in scattered sections of 42 U.S.C. (2000)).

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.