Conceptualizing Modern Family Law

• Pages: 1-26
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

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Chapter 1

CONCEPTUALIZING MODERN

FAMILY LAW

Once a static arena of marriage, disputes involving fault divorce,

alimony, and child custody—gove rned by the local vagaries of sta te

law—modern family law burgeoned into an amalgam of privately

ordered contracts, assisted reproductive technologies, and

encroaching federal preemption of state law. Many factors

contributed to this evolution of American domestic relations. First,

global media communications and Internet connectivity facilitated

the erosion of local laws and procedures, replaced by national

influences and international commitments. This evolution is

illustrated by easier access to divorce through the adoption of no-

fault divorce, the modern ascendancy of nonmarital cohabitation,

acceptance of same-sex marriage, and the protection o f legal

parentage established other than through the traditional status o f

marriage. Easily accessible media influe nces fueled the pursuit of

newly discovered individual liberties, making attainable what was

heretofore unthinkable.

Second, federal preemption of state laws continues unabated.

Professor Adam J. Hirsch commenting on the preponderant role

played by the states as architects of private law, suggests that

increasingly, private law is giving way to the federal giant.

Increasingly, federal Co nstitutional law preempts state statutes

defining marriage, allocating child support, child custody, and

confronting those accused of child abuse. And federal statutes,

through the Supremacy Clause, mold state policies pertaining to

child and spousal support enforcement, domestic violence

enforcement, division of federal benefits upon divorce, termination

procedures for children at risk, parental kidnapping of children, and

intercountry adoption. Today, unlike in the past, litigation involves

federal pre emption o f state laws and procedures related to divorce

and Social Security benefits, military bene fits, and ERISA and

related welfare benefits. The trend towards federal supremacy is

unlikely to reverse.

Third, the federal judiciary, especially the United States

Supreme Co urt, has by right, impacted domestic re lations throug h

the Court’s interpretation of the United States Constitution. For

example, in an 1878 decision of the Court, the first addressing family

law issues, Reynolds v. United States,

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the Court rejected a First

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Reynolds v. United States, 98 U.S. 145 (1878).

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CONCEPTUALIZING MODERN FAMILY LAW

Ch. 1

Amendment defense propounded by a man arrested for the crime of

polygamy, a practice he asserted was part of his right to Free

Exercise of religion. Succinctly, the Court held tha t the Territory of

Utah was free to define marriage as solely monogamous and free to

criminalize other forms of marriage . Furthermore, the Court held

that while the polygamist’s Free Exercise claim under the

Constitution guaranteed the right of a citizen to believe anything,

Free Exercise does not prohibit a state from legislating a citizen’s

conduct.

Since Reynolds, involving the extent of a citizen’s rig ht to Free

Exercise, other skirmishes ensued, involving clashes between a

citizen’s Free Exercise claim and the state’s right to legislate conduct.

Among the most notable involved the Federal Patient Protection and

Affordable Care Act of 2010, which was implemented by the federal

Department of Health and Human Services and required large

employers to provide group health insurance coverage to employees.

Among the benefits that had to be offered were contraceptive drugs

of various types and related counseling at no extra charge to the

employees. Some of these employers, religious organizations and for-

profit enterprises, refused to provide the added coverage, arguing

that the “contraceptive mandate” violated their rights under the

federal Religious Freedo m Restoration Act of 1993 (RFRA), because

the devices were morally objectionable. After extensive litigation the

Court ruled in 2020 that an accommodation could be arranged

because the government has unbridled discretion to identify and

create exemptions from its own guidelines.

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Nonetheless, the Court

added that it is clear that man dating contraceptives is capable of

violating the Religious Freedom Restoration Act.

Free Exercise claims also arise in connection with participation

in medical procedures associated with abortion, assisted

reproduction, and vaccinations.

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In addition, state licensing of

adoption agencies that refuse to permit same-sex co uples to ado pt,

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prayer in public schools, home schooling, school vouchers,

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and a

parent’s right to refuse medical treatment for an ill child. As America

secularizes, Free Exercise claims will increasingly invite attention.

2

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591

U.S. 657, 677 (2020).

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See, e.g., Hillel Y. Levin, Private Schools’ Role and Rights in Setting

Vaccination Policy: A Constitutional and Statutory Puzzle, 61 WM. & MARY L. REV.

1607 (2020).

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See, e.g., Buck v. Gordon, 959 F.3d 219 (6th Cir. 2020).

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See, e.g., Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464 (2020) (Court

applied strict scrutiny to any state statute barring religious schools from participating

in state tax credits).