The family's constitution.

• Author: NeJaime, Douglas

Many of the leading constitutional issues of our day implicate family law matters. (1) Modern substantive due process is replete with questions of family law. Griswold v. Connecticut, (2) Eisenstadt v. Baird, (3) Roe v. Wade, (4) Planned Parenthood v. Casey, (5) and Lawrence v. Texas (6) raise issues of family formation, intimate relationships, and reproductive decision making. Loving v. Virginia, (7) Zablocki v. Redhail, (8) and Turner v. Safley (9) address the contours of marriage. Moore v. City of East Cleveland (10) protects the extended family. Stanley v. Illinois, (11) Lehr v. Robertson, (12) and Michael H. v. Gerald D. (13) consider the rights of unmarried fathers. Troxel v. Granville (14) protects a parent's childrearing decisions. Modern equal protection law, too, features a significant number of family law issues. A string of cases beginning in the late 1960s extends rights to nonmarital parent-child relationships. (15) Leading sex equality decisions dating back to the 1970s render rights and responsibilities regarding marriage and childrearing formally gender neutral. (16) Most recently, decisions on the rights of same-sex couples to marry--namely, United States v. Windsor (17) and Obergefell v. Hodges (18)--recognize the families formed by gays and lesbians on grounds of equal protection and due process.

These cases are thought to represent a relatively straightforward account of the relationship between family law and constitutional law. (19) On this account, family law is generally perceived as a body of state law. (20) Legislatures pass statutes that define and regulate relationships between adults as well as parents and children. (21) Courts resolve specific disputes by interpreting and applying these statutes, as well as through common law and equitable principles that have traditionally governed family law. (In resolving questions of family law, state courts seldom turn to constitutional doctrine--whether state or federal. (22)) Through this lens, domestic relations implicate matters of local concern; federal courts give states wide latitude to regulate the family, and thus only rarely do family law questions enter federal courts. (23) When they do, courts attempt to leave ample room for state regulation. (24) Nonetheless, federal courts may eventually apply federal constitutional law in ways that invalidate forms of family regulation in many states. (25) On this view, constitutional principles--primarily equal protection and due process--operate to discipline and reorient state family law, and family law responds by reforming itself in line with constitutional mandates. (26)

This conventional account is inaccurate along a number of dimensions, some of which family law scholars have explored. (27 )I focus here on how this account distorts the interaction between family law and constitutional law. On the conventional understanding, family law and constitutional law exist in relatively separate spheres, (28) but occasionally meet when constitutional law, exercising power in a top-down way, dictates new directions for family regulation. (29) This account fails to capture the dialogic relationship between family law and constitutional law. It fails to see that family law and constitutional law often occupy the same space, contribute to understandings of the same issues, and interact in mutually constitutive ways. Further, the conventional account fails to appreciate the ways in which family law exerts influence over constitutional law; family law shapes the terrain on which constitutional adjudication occurs, structures constitutional conflict, and orients constitutional reasoning.

To many scholars of family law, this claim may seem obvious. Indeed, there is a rich family law literature challenging the conventional narrative that family law and federal law are. and should be. separate. Scholars have shown that, contrary to common assumptions, family law is not simply a matter of local control and is not outside the scope of federal oversight. (30) Rather, specific bodies of federal law should be considered family law. By including constitutional oversight as a component of federal family law. (31) this literature convincingly challenges the instinct of courts and commentators to view (state) family law and (federal) constitutional law as distinct.

Nonetheless, this body of scholarship is more concerned with federalism, and thus levels of government rather than bodies of law. In contrast, this Article's central concern relates to doctrinal, rather than governmental, boundaries. In particular, it focuses on family law--and specifically a body of case law and statutes regulating family relationships--and constitutional law--and primarily questions of equality and liberty. Indeed, while my analysis draws on the interaction between regulation of the family and federal constitutional law, similar observations may be made about family law and state constitutional decisions.

Even as this Article attends to a dynamic that has yet to be explicitly elaborated, it joins existing family law scholarship that challenges conventional narratives about family law's place in the legal order. My claim about the dialogic relationship between family law and constitutional law runs against tendencies that continue to dominate the treatment of family law and constitutional law. (32) Identifying and unpacking this dialogic relationship is critical to appreciating the reach of family law, as well as the role of constitutional review in regulation of the family. (33) It suggests that, with respect to divisive conflicts over the family, existing accounts both underestimate the power of state family law developments and overestimate the power of federal courts applying federal constitutional law.

This Article captures the dialogic relationship between family law and constitutional law by drawing on my earlier work on the relationship between LGBT legal mobilization and the resolution of claims to marital and parental recognition. (34) Marriage and parenthood are central institutions in family law and receive protection as a matter of constitutional law. Contestation in family law over the meaning of marriage and parenthood has shaped understandings of these institutions for purposes of constitutional doctrine. And constitutional doctrine has in turn shaped family law disputes over the contours of marital and parental recognition.

First, this Article examines family law reform aimed at nonmarital relationship and parental recognition for gays and lesbians. These family law developments contributed to new understandings of marriage and parenthood, as well as same-sex couples' status within each. Constitutional claims to marriage equality gained traction after family law work altered the meaning and reach of marriage and parenthood, and positioned same-sex-couple-headed families as similarly situated to different-sex-couple-headed families for purposes of relationship and parental recognition.

Accordingly, this Article then relates earlier family law reform to eventual constitutional adjudication of same-sex couples' claims to marry. Federal courts considered whether same-sex couples merited inclusion in marriage in ways that were shaped by family law struggles over the romantic and parental relationships of gays and lesbians. Meanings forged in family law conflict structured how federal courts understood the purposes and boundaries of marriage and parenthood as a matter of constitutional doctrine.

Appreciating the historical trajectory of same-sex marriage--and specifically situating same-sex marriage within broader conflicts over the family--enables us to see how marriage equality relates to a more capacious set of questions about family formation and recognition that lawmakers and judges will continue to confront. (35) After exploring the impact of family law developments on constitutional decisions, this Article returns to family law. Rather than resolve family law questions, constitutional adjudication reshapes aspects of state family law, not only in a clear top-down manner but in more subtle ways. The inclusion of same-sex couples in marriage altered the meaning of marital parenthood by mainstreaming concepts of intentional and functional parenthood while rendering biological and gendered approaches to parenthood less dominant. With such inclusion occurring on constitutional terms, advocates for parental recognition have gained new and powerful arguments for reform of parentage law. Understanding marriage equality's family law antecedents relates the constitutional embrace of same-sex marriage to parental recognition, making visible parenthood's centrality to the equal status of gays and lesbians.

Finally, this Article briefly contemplates the future interaction between family law and constitutional law, specifically with respect to parenthood. In the wake of marriage equality, shifts in the law of parental recognition have been expressed in constitutional terms. For married lesbian couples, constitutional protection for the nonbiological mother's parent-child relationship has generally sounded in the register of equality. Due process protection for parental rights, in contrast, remains tethered to the biological connection between parent and child, even as family law has increasingly embraced concepts of parenthood that transcend biological relationships. Accordingly, this Article briefly contemplates how, if at all, family law shifts in the meaning of parenthood might reverberate in constitutional conflict over parental rights.

The examples of the dialogic relationship between family law and constitutional law presented here are meant to be illustrative and not exhaustive. They are limited to one context--LGBT family recognition--and focus on developments from a single jurisdiction--California. This Article's larger purpose is to initiate a dialogue about family law and constitutional law--to challenge...