Family Relationships.

Starting with Meyer and Pierce,691 the Court has held that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”692 For instance, the right to marry is a fundamental right protected by the Due Process Clause,693 and only “reasonable regulations” of marriage may be imposed.694 Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting compliance with support obligations.695 In fact, any regulation that affects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny.

In 2015, in Obergefell v. Hodges, the Supreme Court clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.696 In so holding, the Court recognized marriage as being an institution of “both continuity and change,” and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.697 More broadly, the Obergefell Court recognized that the right to marry is grounded in four “principles and traditions.” These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;698 and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits.699 With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately “demean[ed]” and “stigma[tized]” those couples and any children resulting from such partnerships.700 Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Fourteenth Amendment.701 The open question that remains respecting the substantive due process right to marriage post-Obergefell is whether the right of marriage, as broadly envisioned by the Court in the 2015 case, can extend to protect and require state recognition of other committed, autonomous relationships, such as polyamorous relationships.702

There is also a constitutional right to live together as a family,703 and this right is not limited to the nuclear family. Thus, a neighborhood that is zoned for single-family occupancy, and that defines “family” so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the Due Process Clause.704 And the concept of “family” may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited.705 On the other hand, the Court has held that the presumption of legitimacy accorded to a child born to a married woman living with her husband is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights.706

The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights.707 The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other third parties. In Troxel v. Granville,708 the Court evaluated a Washington State law that allowed “any person” to petition a court “at any time” to obtain visitation rights whenever visitation “may serve the best interests” of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the “fundamental rights of parents to make decisions concerning the care, custody and control of their children,”709 reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child.

Footnotes

691
Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1928). [Back to text]
692
Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Unlike the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are “intrinsic human rights.” Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). These rights, however, do not extend to all close relationships. Bowers v. Hardwick, 478 U.S. 186 (1986) (same sex relationships). [Back to text]
693
Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978). [Back to text]
694
Zablocki v. Redhail, 434 U.S. 374, 386 (1978). [Back to text]
695
Zablocki v. Redhail, 434 U.S. 374 (1978). The majority of the Court deemed the statute to fail under equal protection, whereas Justices Stewart and Powell found a violation of due process. Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977). [Back to text]
696
See 576 U.S. ___, No. 14–556, slip op. at 12 (2015). [Back to text]
697
See id. at 6–10. [Back to text]
698
In Pavan v. Smith, the Court reviewed an Arkansas law providing that when a married woman gives birth, her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s genetic parent. 582 U.S. ___, No. 16–992, slip op. at 1 (2017). The lower court had interpreted the law to not require the state to extend the rule to similarly situated same-sex couples. Id. Relying on Obergefell, the Court struck down the law, noting that the “differential treatment” of the Arkansas rules “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.’ ” Id. (quoting Obergefell, slip op. at 17.) [Back to text]
699
See id. at 12–16. [Back to text]
700
See id. at 17. [Back to text]
701
See id. at 17–18. The Court also grounded its Obergefell decision in the Equal Protection Clause of the Fourteenth Amendment. Id. at 19 (“The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”). For a discussion of Obergefell’s equal protection holding, see infra Fourteenth Amendment: Equal Protection of the Laws: The New Equal Protection: Sexual Orientation. [Back to text]
702
See, e.g., Obergefell, slip op. at 20 (Roberts, C.J., dissenting) (“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”); but see Joanna L. Grossman & Lawrence M. Friedman, Is Three Still a Crowd? Polygamy and the Law After Obergefell v. Hodges, VERDICT (July 7, 2015), available at https://verdict.justia.com/2015/07/07/is-three-still-a-crowd-polygamy-and-the-law-after-obergefell-v-hodges (“Obergefell did not really open the door to plural marriages.”). For an extended debate on whether the right to marry protects plural marriages, compare Ronald C. Den Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 EMORY L.J. 1977 (2015), with John Witte, Jr., Why Two in One Flesh? The Western Case for Monogamy Over Polygamy, 64 EMORY L.J. 1675 (2015). [Back to text]
703
“If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded impermissibly on ‘the private realm of family life which the state cannot enter.’ ” Smith v. Organization of Foster Families, 431 U.S. 816, 862–63 (1977) (Justice Stewart concurring), cited with approval in Quilloin v. Walcott, 434 U.S. 246, 255 (1978). [Back to text]
704
Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion). The fifth vote, decisive to the invalidity of the ordinance, was on other grounds. Id. at 513. [Back to text]
705
Smith v. Organization of Foster Families, 431 U.S. 816 (1977). As the Court noted, the rights of a natural family arise independently of statutory law, whereas the ties that develop between a foster parent and a foster child arise as a result of state-ordered arrangement. As these latter liberty interests arise from positive law, they are subject to the limited expectations and entitlements provided under those laws. Further, in some cases, such liberty interests may not be recognized without derogation of the substantive liberty interests of the natural parents. Although Smith does not define the nature of the interest of foster parents, it would appear to be quite limited and attenuated. Id. at 842–47. In a conflict between natural and foster families, a court is likely to defer to a typical state process which makes such decisions based on the best interests of the child. See Quilloin v. Walcott, 434 U.S. 246 (1978). [Back to text]
706
Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no opinion of the Court. A majority of Justices (Brennan, Marshall, Blackmun, Stevens, White) was willing to recognize that the biological father has a liberty interest in a relationship with his child, but Justice Stevens voted with the plurality (Scalia, Rehnquist, O’Connor, Kennedy) because he believed that the statute at issue adequately protected that interest. [Back to text]
707
The clearest conflict to date was presented by state law giving a veto to parents over their minor children’s right to have an abortion. Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Planned Parenthood v. Casey, 503 U.S. 833 (1992). See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child for treatment of mental illness). [Back to text]
708
530 U.S. 57 (2000). [Back to text]
709
530 U.S. at 66. [Back to text]