Family and the Constitution
FAMILY AND THE CONSTITUTION
Family relations have an uncertain, even ambivalent constitutional status in Supreme Court decisions. If the Constitution 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 among consenting adults in private. Similarly in Belle Terre v. Boraas (1974) the Court upheld a municipal zoning restriction excluding communal families unless they were "related by blood, adoption or marriage"; and yet in moore v. city of east cleveland (1977) the Court struck down zoning restrictions that limited residence to nuclear families and excluded multigenerational families with blood ties. The theme that runs through these two zoning cases and through Griswold and Doe is that the Constitution protects "families" when they reflect conventional social definitions of decency and morality.
The Court does not unquestioningly defer to legislative conceptions of appropriately conventional family relations. The Court has struck down familial regulations reflecting racial discrimination as in loving v. virginia (1967), or sex discrimination regarding alimony entitlements as in Orr v. Orr (1979), or required consent for adoptive placement as in Caban v. Mahammed (1979). But even in these cases the Justices appear guided more by their own conceptions of appropriate social conventions for family relations than by any principle of protection of individuals against state interference with their autonomous choices in family matters.
The constitutional status of parent-child relations is the result of similar conflicting impulses. In the adult relations cases, the underlying conflict is essentially between principles of individual autonomy and of community, between the individual's freedom of intimate association and the right of a group to define and enforce common standards of conduct on every group member. For state regulation of parent-child relations, these same conflicting principles are at stake, but the conflict extends even into these principles' very definition.
Thus the state can plausibly claim that it must restrict parental conduct to protect and enhance the child's developing capacity for individual autonomy. The claim is implicit in compulsory education laws, in laws permitting state intervention to override parental directives in disputes between parent and child (particularly adolescent children), and in laws proscribing child abuse or neglect. Parents, however, can plausibly claim that a child's capacity to develop as an autonomous individual is impaired by state impositions on parental conduct beyond the most minimal standards to protect the child's physical integrity. Thus even if constitutional doctrine should give priority to individual autonomy over communitarian claims in adult relations, this priority does not resolve disputes regarding state regulation of parental conduct when both the state and the parents can plausibly claim to speak for the child's developing capacity for individual autonomy.
These disputes have occurred in three different contexts: claims by state authorities that parents' conduct was harmful to children; claims by parents that their children were harmed by state conduct, particularly in public schools; and claims by children, particularly older children, that state authorities should take their sides in disputes with their parents. In none of these contexts do the decided cases yield consistent constitutional principles.
The unresolved tension between competing principles was particularly evident in two Supreme Court decisions in successive terms that considered the application of constitutional norms to state abuse and neglect statutes. In Santosky v. Kramer (1982) the Court held that states must meet a higher burden of proof than the ordinary civil standard before the parent-child relationship could be terminated on grounds of harmful parental conduct; but in Lassiter v. Department of Social Services (1981) the Court had held that the parental relationship was not of sufficient constitutional weight to require the appointment of counsel to give indigent parents effective assistance against state actions for termination.
A similar if less blatant inconsistency is evident in the Court's rulings regarding the rights of parents to constrain state impositions on their children in public schools. Thus in ingraham v. wright (1977) the Court ruled that school officials were free to inflict corporal punishment on students notwithstanding parental objections that the punishment was physically and psychologically harmful to their children; but in wisconsin v. yoder (1972) the Court had ruled that school officials could not require Amish children to attend secondary schools in the face of their parents' objections that this imposition was harmful to the children and inconsistent with the parents' views on proper child-rearing practices.
In the Amish case, the Court emphasized the religious basis for the parents' claims, a factor that might serve to distinguish the parents' claim in the corporal punishment case. But parental claims to preclude state interference in their decisions regarding children were not similarly honored, notwithstanding the religious grounding of such claims, in planned parenthood v. danforth (1976) where the parents objected to their unmarried pregnant daughters' wish to obtain an abortion. The minors' abortion and the Amish case might be distinguished on the ground that the pregnant minors openly disagreed with their parents while the Amish students apparently concurred with theirs. But this view of the abortion case—that the Constitution not only permits but requires state intervention to protect the autonomous wishes of older children from being overridden by their parents—cannot readily be squared with the Court's subsequent ruling in parham v. j. r. (1979) essentially upholding parents' authority to confine their adolescent children in psychiatric institutions, notwithstanding the children's objections and claims for independent judicial protection.
These decisions raise at least the suspicion that the same guiding principle is at work in these parent-child-state cases as appeared in the cases regarding state regulation of adult familial relations—the principle that the Justices are not prepared to find constitutional protection for family status as such but only for those families whose conduct meets the Justices' particular approval. This principle could explain the Court's deference to Amish parents who generally succeed in imposing rigid behavioral controls on their children, as the Court repeatedly stressed in Yoder, or its deference to parents' wishes to confine their socially disruptive children in psychiatric institutions. A judicial preference for such behavior controls might also explain the Court's refusal to defer to parents' objections to school corporal punishment or to parents' resistance to abortions when they had failed effectively to constrain their unmarried daughters' indulgence in sexual relations.
The Court has not been unanimous in these cases, and no Justice has explicitly defended this particular child-rearing principle as a constitutional norm. Yet the logical plausibility of this harmonizing principle does suggest that current constitutional doctrine gives no special status to family relations as such, either between parents and child or among adults. The occasional rhetorical flourishes in Supreme Court opinions about the "constitutional sanctity" of the family does not yet reflect any consistent constitutional principle.
Robert A. Burt
Burt, Robert A. 1979 The Constitution of the Family. The Supreme Court Review 1979:329–395.
Goldstein, J. et al. 1973 Beyond the Best Interests of the Child. New York: Free Press.
——1979 Before the Best Interests of the Child. New York: Free Press.
Karst, Kenneth L. 1980 The Freedom of Intimate Association. Yale Law Journal 89:624–692.