THE RIGHT FAMILY.

Author:Ben-Asher, Noa
 
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Abstract

The family plays a starring role in American law. Families, the law tells us, are special. They merit many state and federal benefits, including tax deductions, testimonial privileges, untaxed inheritance, and parental presumptions. Over the course of the twentieth century, the Supreme Court expanded individual rights stemming from familial relationships. In this Article, we argue that the concept of family in American law matters just as much when it is ignored as when it is featured. We contrast policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly disparate areas of recent policymaking--the travel ban, family separation at the southern border, agricultural subsidies, and the religious rights of closely held corporations--we explore the interplay between the family, the individual, and the corporation in modern law. We observe that both liberals and conservatives make use of the family to humanize or empower certain people, and both reject the family when seeking to dehumanize or disempower. Where liberals and conservatives differ is which families they choose to champion. Ultimately, we conclude that the use of family as a mechanism through which to confer rights and benefits is a cover to hide policies that entrench and exacerbate existing racial and religious hierarchies. Further, in the context of family businesses, it risks becoming a steppingstone for radical expansion of rights to businesses themselves. To tell this story, we analyze the use and rhetoric of family in politics, media, and recent Supreme Court decisions such as Trump v. Hawaii (2018), Burwell v. Hobby Lobby (2014), Kerry v. Din (2015), and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

INTRODUCTION

Most of the time, when we talk about the "social contract," we consider the individual. (1) The individual is the primary subject of constitutional rights and criminal prosecution. And yet, it is the family rather than the individual that the law so often champions. (2) Indeed, it is the family over which the law obsesses. Pundits blame periods of crime and poverty on the disintegration of the family unit. (3) Lawmakers design monetary policy to foster growth of family wealth via intergenerational wealth transfer. (4) The Supreme Court has situated the freedom to marry at the peak of its LGBT rights jurisprudence. (5)

In this Article, we consider how legal and policy analysis vacillates between focus on the family and focus on the individual. We observe, through analysis of governmental policies and several recent Supreme Court decisions such as Trump v. Hawaii (2018), (6) Burwell v. Hobby Lobby (2014), (7) Kerry v. Din (2015), (8) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), (9) that both liberals and conservatives use the unit of the family when seeking to recognize and empower certain groups or actions, and they focus on the individual when seeking to disempower. (10)

We support the liberal positions on the four policies at stake in this Article. But more importantly, we offer a conceptual analysis that explains how conservatives and liberals operate in relation to each other when it comes to defending and empowering individuals and families. We observe that both liberals and conservatives rely on the sanctity and unity of family in crucial political struggles. Where they differ is over which families to celebrate and, consequently, when the family is the correct unit of legal analysis. Conservatives and liberals disagree on the political, racial, religious, and national identity of the "right" family.

Our side-by-side analysis of recent policy debates surrounding the Trump administration's Travel Ban, family separations at the southern border, agricultural subsidies, and the religious rights of closely held corporations reveals a troubling pattern. For some individuals, mostly Muslim and immigrant, one's status as a member of a family is, at best, ignored and, at worst, exploited to punish. For other individuals, mostly white, Christian, and corporate, status as member of a family is elevated to justify what might otherwise appear to be undesirable government giveaways. The following table illustrates these four policies and the opposing positions taken by liberals and conservatives.

THE RIGHT FAMILY: SUMMARY CHART

The Policy Liberal Position Travel Ban Family unity should be preserved. Southern Border Family unity should be preserved. Separation Policies Agricultural The "family fanner" is a nostalgic myth. Subsidies Lawmakers should redirect subsidies to real families. Religious The "family business" is a mask for Exemptions for corporations and CEOs. Businesses The Policy Conservative Position Travel Ban National security threats caused by dangerous individuals trump family unity. Southern Border Criminality threats caused by dangerous Separation Policies individuals trump family unity. Agricultural The key social role of the family farmer Subsidies justifies expanded wealth transfers to the industrial agriculture sector. Religious Family businesses are entitled to legal Exemptions for protections of their religious values. Businesses Legal instruments regularly contract and expand families. Legal definitions of family control, among other things, marriage, (11) taxes, (12) zoning and cohabitation, (13) sex, (14) healthcare, (15) estate planning, (16) immigration, (17) and social welfare benefits. (18) While definitions of family are not uniform, (19) the recognition of familial status is often associated with legal protections or benefits. (20) It allows individuals to live together, share in one another's eligibility for benefits, and inherit. Protecting the integrity and privacy of the family and encouraging creation of families are consistent policy goals across numerous areas of law. (21) In some contexts, the law penalizes those who violate duties to their families. (22) And, at an extreme, when individual actors are considered particularly bad, the law punishes an individual's family as well. (23)

Over the course of the twentieth century, individual rights stemming from familial relationships have emerged in the Supreme Court's liberty and equality jurisprudence, (24) including the rights of parents, (25) unwed fathers, (26) and grandparents, (27) as well as privacy (28) and marriage rights. (29) Scholars have recently turned to this dialogue between family law and constitutional law as an avenue to protect vulnerable families. (30)

This Article underscores the danger of limiting human rights to the context of the family. Political scientist Melinda Cooper recently observed that "[t]he history of family is one of perpetual crisis." (31) Perhaps, too, so long as family remains a fundamental unit of social organization, the myth of family and of individuals' relationships to the family serve as fodder for achieving other goals of social ordering. (32) Muslims and immigrants are currently subjected to family-separating policies that are justified by condemnation of individual bad actors. (33) Farmers and businessmen, by contrast, are rewarded by policies that expand the size and power of individual families. (34) The decision between centering a policy on the individual or the family determines which groups of people are empowered and which are not.

This Article proceeds in three parts: Part I examines contemporary immigration laws and policies that separate families and harm individuals. In Part I.A., we examine the context of the war-on-terror, in which Muslims are often perceived and regulated as actual or potential terrorists. We focus primarily on the Trump administration's orders banning immigration from six Muslim-majority countries (the "Travel Ban"), (35) which was upheld by the Supreme Court in Trump v. Hawaii. (36) Part I.B. considers the parallel treatment of Central American immigrant families. Lawmakers and policymakers often stereotype Central American immigrants as "rapists" and "murderers." (37) Under Trump administration policies, migrant families fleeing violence and crushing poverty have been separated at the border and sent to detention facilities across the country. The administration regularly justifies family separation as a deterrent to the alleged crime of illegal border crossing or even legal asylum seeking. In this context, the threat posed by individuals is deemed so great that it justifies intentional collateral punishment of families.

In Part II, we examine farm- and business-owning families. These families enjoy a variety of state benefits. In Part H.A., we examine federal and state policies that protect family farms. These policies channel state subsidies to predominantly white farm owners. We show that when lawmakers emphasize "the family," it often serves to obscure how policies ultimately channel taxpayer dollars to the largest and most profitable farms. Liberal critiques of these policies underscore the misleading nature of "family farm" rhetoric and the ways in which these policies serve corporate interests. In Part II.B., we consider laws and policies that empower Christian family business owners. We focus on Burwell v. Hobby Lobby, in which the Supreme Court decided that a closely held corporation whose owners had "sincerely held" Christian beliefs could not be forced to provide a health insurance plan covering certain contraceptives. (38) Hobby Lobby and its progeny empower Christian families not only by giving them access to the corporate form, but also by granting them religious sovereignty over their employees (and, in some cases, customers). (39)

In Part III, we observe that both liberals and conservatives use the choice between the family and the individual as the primary unit of analysis to humanize or dehumanize legal subjects. We situate the special treatment for farm- and business-owning families in the context of corporate and religious sovereignty. We...

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