Family and the Constitution

• Author: Robert A. Burt
• Pages: 972-974

Page 972

Family relations have an uncertain, even ambivalent constitutional status in Supreme Court decisions. If the Constitution

Page 973

protects the family against external interference, it also permits the establishment of public moral standards to regulate social relations among adults and to protect children from apparently harmful parental conduct.

This ambivalence appeared early. In MEYER V. NEBRASKA (1923) the Supreme Court opined that FOURTEENTH AMENDMENT "liberty" included the right "to marry, establish a home and bring up children." The Court did not explain, however, why this right stopped short at monogamy. In REYNOLDS V. UNITED STATES (1878) it had upheld Congress's power to forbid POLYGAMY in the TERRITORIES notwithstanding the religiously grounded objections of Mormon settlers. Nor did the Court subsequently explain how the right "to bring up children" was consistent with the compulsory STERILIZATION of a woman considered retarded by state authorities upheld in BUCK V. BELL (1927). One discernible principle did unify these early cases: the Constitution protects only family relations that judges consider "normal" and "wholesome." This principle might occasionally lead judges to substitute their views of normality for legislative impositions (as in Meyer where the state had forbidden schoolroom teaching of children in any language but English); it hardly serves, however, as a MAGNA CARTA for the protection from state interference of family sanctity and autonomy.

The prospect that constitutional doctrine might be elevated to serve this broader protective purpose emerged in the 1960s, as cases involving family relations began to appear in unprecedented numbers on the Supreme Court's docket. But in fact the decided cases exemplify the same conflicting strains as before. The first of the modern cases was GRISWOLD V. CONNECTICUT (1965), striking down a state law that prohibited anyone including married couples from using contraceptives. The Court spoke of marriage as "intimate to the degree of being sacred" and found a constitutionally protected " RIGHT OF PRIVACY surrounding the marriage relationship." In subsequent cases, however, the Court has been reluctant to extend this familial privacy right beyond the conventionally conceived marriage bond. Although EISENSTADT V. BAIRD (1972) recognized the right of unmarried persons to practice contraception, in Doe v. Commonwealth's Attorney (1976) the Court summarily affirmed a lower court's rejection of a constitutional attack on a state law criminally proscribing homosexual relations even...