Reassessing family relations law: issues and inquiries in the state courts.

• Author: Friedelbaum, Stanley H.

The development of American family law, particularly the enumeration of rights, has often paralleled that of personal rights generally. All the same, neither the federal Bill of Rights nor counterpart state provisions offer explicit familial guarantees comparable to those traditionally conferred upon individuals. What prevails is a presumption that the family unit ought not to be subjected to intrusive control or supervision. There have even been reports of a proposed federal constitutional "amendment prohibiting the government from abridging the 'rights of the family.'" (1)

Over the years, a sense of privacy seems to have precluded societal intervention unless egregious conditions necessitated it. The onus of responsibility lies with the state in establishing compelling reasons for any attempt to remedy misdeeds. Throughout the nation's history, the recurring motif has favored non-interference, suggesting a conception of family law that belies overt paternalism. In this regard, procedural and substantive rights have accrued to the family, viewed as an entity essential not only to the individuals who comprise it, but also to the preservation of accepted social needs and goals.

The essay that follows does not focus upon issues and questions encompassed within the customary bounds of family law. (2) Instead, emphasis has been placed upon a review of contemporary cases that have touched upon unusual themes affecting internal relationships and conflicts both within and outside the family unit. Additionally, in the major cases, constitutional aspects (or their absence) are treated either directly or impliedly. Attention is directed to controversies litigated in the state courts from which, historically, most of American family law originated and where it continues to be centered. The cases often reflect a revived judicial federalism and are marked by nuances in an ever-growing and changing body of law.

THE FEDERAL JUDICIAL FRAMEWORK

The first glimpses of legal recognition for family autonomy arose within settings not integrally related to familial relations. Among the earliest cases suggesting a protective framework was Meyer v. Nebraska, (3) initiating occasional spurts of judicial inquiry. The sanctity and integrity of the family unit had long been recognized but without reference to specific constitutional language or, until Meyer, even to the common law. It was from the latter that a listing of individual rights and privileges, including the "right to marry, establish a home and bring up children," was derived as "essential to the orderly pursuit of happiness by free men." (4) When the Supreme Court acknowledged the existence of these rights in 1923, they were linked to conceptions of liberty, though it is noteworthy that they were not defined with exactness. (5) Almost simultaneously, the Court in Pierce v. Society of Sisters went on to sustain the "liberty of parents and guardians to direct the upbringing and education of children under their control." (6) Overtones of now much-decried substantive due process pervaded both opinions. In Meyer, the Court referred to the Fourteenth Amendment's due process clause as preventing the states from interfering with individual contractual rights, (7) thus raising the specter of a continued reliance on Lochner v. New York, (8) subsequently taken to be among the most denounced precedents of the century.

The opinions in Meyer and Pierce were written by Justice James McReynolds, (9) one of the most conservative members of the Court. In both cases, questions were raised concerning the types of schools that children should be required to attend and the foreign languages that they might elect to study. The former centered on state efforts to discourage attendance at parochial schools. (10) The latter, in large measure a legacy of World War I, was designed to eliminate the study of the German language as a part of the curriculum. (11) Whether in a broader, more inclusive context, family rights would have been set out with greater attention to scope and breadth remained problematic at the time.

An identifiable linkage of family rights and a right to privacy came to prevail in cases decided during the era of the Warren Court. Perhaps the most conspicuous treatment of such rights occurred in the emotionally charged case of Griswold v. Connecticut. (12) At issue was a state anti-contraceptive statute that defied invalidation under existing precedent. (13) Justice William Douglas, writing for the Court in Griswold, resorted to a strange amalgam of rights, encompassing segments of the Bill of Rights brought together by means of the Fourteenth Amendment's due process clause. (14) What emerged by devious turns was a right of marital privacy, said to be preserved by "penumbras, formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance." (15) The institution of marriage itself was described with unusual deftness and sensitivity as an association "sacred" and "noble" in the purposes that it served. (16) The right of privacy, in relation to that institution, was characterized as a right older than the Bill of Rights, political parties, and the social system. (17)

The opinion in Griswold, rife with anomalous references and premised on a concept of liberty lacking tangible support in the Constitution, was accompanied by a spate of separate opinions. Justice Arthur Goldberg, joined by Chief Justice Earl Warren and Justice William Brennan, concurred, but would have preferred to rely upon the Ninth Amendment as the principal source for the results announced. (18) Marital privacy, Goldberg noted with fervor, fell within a series of fundamental personal rights not specifically listed in the first eight amendments. (19) He pointed out that Justice John Harlan had previously referred to the "private realm" of family life as encompassing marital relations (20)--a protected domain drawing upon the "principles of more than one explicitly granted Constitutional right." (21)

In Griswold, Justice Harlan concurred, though he objected to a "historically unfounded incorporation formula." (22) Instead, he would have predicated the Court's holding directly on the Fourteenth Amendment's due process clause and a finding of the state law's violation of basic values implicit in the "concept of ordered liberty." (23) Toward a like end, but without any major assault upon incorporation theory, Justice Byron White's concurrence condemned the "sweeping scope" of the statute "with its telling effect on the freedoms of married persons" and the deprivation of liberty without due process of law. (24)

Justice Hugo Black, joined by Justice Potter Stewart, dissented in Griswold. While professing a strong aversion to the anti-contraception law and the public policy underlying it, Black could find no appropriate basis on which to declare the state law invalid. (25) Personal antipathy, it appeared, did not and ought not be translated into a holding of unconstitutionality. (26) With impassioned pleas, Black took exception to what he took to be a return to substantive due process and discredited natural law formulas, rejected following the Court-packing episode of the late 1930s. (27) Such a course, he warned, "is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights." (28) Justice Black counseled deference to the legislative will and the avoidance of any judicial effort to "roam at will" in the selection of policies entrusted to those responsible to the people in a democratic state. (29)

Justice Stewart's dissent characterized the statute in question as an "uncommonly silly law." (30) He noted, however, that any reliance upon the Ninth Amendment as a basis for setting aside the law would "turn somersaults with history." (31) Like Justice Black, Stewart pointed to the legislative process as the sole recourse since, as he viewed it, no general right of privacy inhered in the Bill of Rights or any other part of the Constitution. (32)

That the derivation of a privacy right, drawn from unconventional sources, remained controversial and open to continuing modification did not prevent the Court from reaffirming and enhancing its belief in the integrity of the family unit. In a much-debated inquiry into the reach of the extended family, the Court, in a plurality opinion by Justice Lewis Powell in Moore v. East Cleveland, (33) extended substantive due process rights to safeguard family life against intrusive regulation. (34) Justice Powell explained that such protection had to be accorded to not only the nuclear family but also to families that passed beyond the bounds of "certain narrowly defined family patterns." (35) Though findings grounded on substantive due process called for "caution and restraint," he believed they did not require abandonment of the concept so long as appropriate limits were observed. (36) The family, deeply rooted in American tradition, merited the reinvocation of due process with substantive content attaching. (37)

The Court moved to redefine the family unit in Michael H. v. Gerald D., (38) a case that raised difficult questions of procedural and substantive due process within a setting at once extraordinary, provocative and at times even wryly humorous. In the California courts, the putative father relied on the Fourteenth Amendment due process clause to challenge a state law that extended a legitimacy presumption to children born to a married woman who lives with her husband, even if tests indicate illegitimacy. (39) In this case, although blood tests revealed a high probability that the putative father was the biological father, the child was imputed to the marriage. (40) The biological father's efforts to establish his paternity failed in the state courts, ruling on federal rather than independent state grounds. (41) The California Supreme Court declined to intervene. (42)

In a...