Disestablishing the family.

• Author: Ristroph, Alice

FEATURE CONTENTS INTRODUCTION I. AN ANTITOTALITARIAN VIEW OF (RELIGIOUS) DISESTABLISHMENT II. FAMILIAL ESTABLISHMENT: ENCOUNTERS WITH THE CONSTITUTION A. The Marriage Model B. Thick Establishment C. Thin Establishment III. THE FAMILY-STATE RELATIONSHIP, REIMAGINED CONCLUSION INTRODUCTION

Congress shall make no law respecting an establishment of a family, or prohibiting the free exercise thereof....

Nothing seems more churlish--or more likely to provoke reactionary critique--than an attack on the family. Plato's Republic famously proposed a system in which women and children would belong to all men in common, (1) and for that (and other reasons) the Republic is sometimes derided as an argument for a totalitarian regime. (2) Similarly, proposals to "abolish the family" in communist literature (3) have been the target of intense criticism by thinkers in the classical liberal tradition. (4) According to these critiques, totalitarian or communist regimes are bad because they dissolve families, which are self-evidently worthwhile. But one could also argue from the other direction: families are worthwhile in part because they make totalitarianism less likely. Families are institutions in which individuals find meaningful relationships, necessary nurturing and support, and a structure of authority independent of the state. Individuals with strong family ties are more likely to be capable of critical reflection about organized political institutions; individuals who are family members before they are citizens are less susceptible to organized public indoctrination. (5)

Similar antitotalitarian arguments have been advanced in defense of the religion clauses in the United States Constitution. (6) We should resist the establishment of a single official church and instead embrace religious pluralism, the argument goes, because a populace with a diverse array of religious beliefs is less likely to enable or accept excessive concentrations of government power. Notably, this line of thought does not condition the constitutional protection of religion on the degree to which religion serves "state interests," as that phrase is typically used. (7) To the contrary, religion is recognized as an important dimension of human life that may well conflict with political obligations or the claims of public institutions. Indeed, to foster some tension between institutions is precisely the point: we seek to preserve separate sources of authority so no single authority gains too much power. Toward that end, the Constitution validates individual liberty interests directly by protecting the free exercise of religion. At the same time, it provides indirect, structural protection for individual religious liberty by insisting on the institutional separation of church and state. (8) The Establishment Clause may sometimes be thought to protect the state from the influence of religion, but it is equally or more concerned with protecting religion from the influence of the state. Indeed, one of the goals of the Establishment Clause is to preserve distinctive spheres of meaning, value, and authority for these two institutions. By this account, to disestablish religion is hardly to abolish it: disestablishment seeks to preserve the possibility of religious freedom along with other liberties. (9)

This antitotalitarian view of church-state relations has much to teach us about family-state relations. This Feature explores what it would mean to disestablish the family--how a principle of familial nonestablishment could ensure familial and individual freedom. (10) In many ways, the rationales for the Free Exercise and (non-) Establishment Clauses of the First Amendment support parallel principles of free exercise and nonestablishment for the family. Indeed, substantial rights to what we call "free exercise of the family"--rights to marry and to divorce, (11) to procreate or avoid procreation, (12) to direct the education of one's children, (13) and to cohabit with relatives (14)--have already been recognized in American constitutional doctrine. (15) But there is not, at present, any parallel principle of nonestablishment. Legislators and other policymakers are free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. Legal privileges or burdens are often contingent on an individual's family status. One of the most obvious ways in which states--and the federal government--have established a particular vision of the family is by limiting civil marriage to heterosexual couples. (16) But there are other forms of familial establishment. Just as religious establishment often assumed the form of criminal prosecutions for nonconformance, familial establishment sometimes has occurred through the force of the criminal law. (17) In this Feature, we give particular attention to instances in which criminal laws are used to enforce a particular model of the family. Ultimately, our focus is the use of state power to encourage or discourage particular visions of the family, and criminal sanctions are often, but not always, the most intrusive form of such power.

We begin in Part I by elaborating the antitotalitarian argument for a principle of disestablishment of religion. In Part II, we consider the extent to which a particular model of the family has been established in American law. We examine a number of constitutional challenges to state regulations of families to ascertain the outer limits of the power of the state over the family. As an established church seeks to ensure political stability and production of the right kind of citizen through a coincidence of civic and ecclesiastical authority, so American law has sought to guarantee political stability and a model citizenry through regulation of the family. We emphasize, however, that establishment is not an all-or-nothing matter. In several ways, the recognition of rights of free exercise of the family has already led toward disestablishment. Other incidents of familial establishment remain in force, however, and in Part III, we offer some initial reflections on the possibilities, promises, and perils of further familial disestablishment. We do so by means of comparison: we contrast the antitotalitarianism of familial disestablishment with the strongly statist proposals of recent scholarship by Dan Markel, Jennifer Collins, and Ethan Leib. (18)

1. AN ANTITOTALITARIAN VIEW OF (RELIGIOUS)

   DISESTABLISHMENT A constitutional provision with disputed interpretations and muddled

   doctrine is no rarity. But even as constitutional disputes go, those concerning the Establishment Clause of the First Amendment are especially pronounced, and doctrinal clarity is elusive. In this Feature, we will neither survey the disputes nor attempt to resolve them. Instead, we examine a particular understanding of the purpose of disestablishment of religion and consider its implications for family-state relationships. This theory of religious disestablishment has occasionally surfaced in judicial opinions and scholarly writing, and we will note some of those appearances below. But we do not seek to unify doctrine, to identify the one true meaning of constitutional text, or to show the historical pedigree of this view of disestablishment. (19) Ours is an argument of principle and political theory, and caveats duly issued, we proceed to it.

   The particular defense of disestablishment of interest here is deeply grounded in principles of limited government. (20) It stems from the idea that in a liberal democracy, not only power but also limitations on power require popular support. It seems obvious enough that a democratic government cannot survive unless it is accepted by a substantial portion of the populace. Too rarely noticed, however, is the fact that restrictions on government power also depend on public opinion. Without popular support for principles of limited government, the ruling majority may be tempted to override inconvenient limitations. Even the existence of a written constitution is not alone sufficient to forestall what Alexis de Tocqueville called "the tyranny of the majority." (21) Constitutions require interpretation and enforcement, and majority sentiment shapes both interpretation and enforcement to a considerable degree. (22)

   In order to preserve the limits in a system of limited government, citizens must be able to view political authority with skepticism and to reflect critically on the ruling authorities. But as a matter of human psychology, skepticism and critical reflection are neither innate nor inevitable. Humans learn to think in the context of institutions, and a person exposed to only one institution will have a difficult time imagining any other. (23) So a democratic, limited government requires a plurality of authoritative institutions. According to Tocqueville, the success of American democracy was linked to the proliferation of subnational associations and institutions: churches, political parties, business organizations, and myriad civic associations. (24) Individuals with affiliations to multiple associations will be exposed to competing ideologies and competing accounts of justice and value. (25) Such persons will be more likely to reflect on the various institutional claims and to criticize or even reject certain claims of authority. To be sure, institutional pluralism provides no hard guarantee of such critical distance; the institutions that grow independently of the state may yet end up endorsing and reinforcing the state's own authority. (In practice, some religious traditions in the United States do just this.) So institutional pluralism provides no guarantees of skeptical, critical citizens, but it provides better odds than institutional consolidation. In short, persons for whom government is not the only imaginable source of authority are more likely to endorse the idea of limited government, and they are more likely to engage in...