Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Consitutional Law and Policy Reform, The
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Missouri Law Review Volume 66 Issue 3 Summer 2001 Article 1 Summer 2001 Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Consitutional Law and Policy Reform, The Richard F. Storrow Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Richard F. Storrow, Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Consitutional Law and Policy Reform, The, 66 MO. L. REV. (2001) Available at: https://scholarship.law.missouri.edu/mlr/vol66/iss3/1 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Storrow: Storrow: Policy of Family Privacy: MISSOURI LAW REVIEW VOLUME 66 SUMMER2001 NUL.mER3 The Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Constitutional Law and Policy Reform RichardF. Storrow* TABLE OF CONTENTS I. INRODUCTION ................................................ 527 II FAMILY PRVACY .............................................. 532 A The OriginsofFamily Privacy .............................. 536 B. The Limits ofFamily Privacy ................................ 539 C. The Legacy ofFamily Privacy ............................... 545 BL1. INDIVIDUAL PRIVACY ........................................... 550 A From Griswold to Hardwick ................................. 551 B. Abortion and Glucksberg ................................... 559 1. Roe and Its Progeny ................................... 559 a. SpousalNotification and Consent .................... 562 b. ParentalNotification and Consent ................... 565 2. Glucksberg .......................................... 579 IV. FAMILY POLICY IN THE LAW OF SuccEssioN ......................... 583 V. PoLicYREFOrpm .............................................. 592 A Nonmarital ChildrenandMarital Families ..................... 594 B. Mimicking NuclearFamilies in Adoption Policy ................. 605 C. Relocating the MaritalFamily ............................... 613 VL CoNcLusIoN: MARRYING POLICY AND PRIVACY ..................... 620 I. INTRODUCTION Regarded as fundamental to the integrity of society, the family--and, more specifically, its preservation-has for a very long time been a priority of both courts and legislatures. Hand in hand with this focus onfamilies, however, comes Published by University of Missouri School of Law Scholarship Repository, 2001 1 Missouri Law Review, Vol. 66, Iss. 3 [2001], Art. 1 MJSSOURILA WREVIEW [Vol. 66 disagreement about the definition of the family.1 Decisions by the Supreme Court are onlypartially illuminating. In Trimble v. Gordon2 and Stanley v. Illinois,3 an unwed father and his children are a family; by contrast, inMichaelH.v. Gerald .,4 a married woman, her lover, and their child are not. nMoore v. City ofEast Cleveland,5 a grandmother and her two sets of grandchildren are a family; in Village of Belle Terre v. Boraas,6 unrelated adults sharing meals and living quarters are not. These cases reveal that marriage and consanguineous relationships are significant elements in the definition of a family! Other cases suggest that these factors are not determinative. In Smith v. Organizationof Foster Familiesfor Equality and Reform,' the Court asserted that "biological relationships are not [the] exclusive determination of the existence of a family.' 9 In a similar vein, the Court in Stanley remarked that "the law [has not] refused to recognize those family relationships unlegitimized by a marriage ceremony."" Taken as a whole, these cases imply that without either marriage or a biological relationship, legal recognition of a family is unlikely." For example, in the absence of aparent-child relationship, marriage is critical for the law to recognize a family.'2 Marriage alone may not be sufficient for recognition, however.13 For * Copyright 2001 by Richard F. Storrow. Associate Professor, Texas Wesleyan University School of Law. B.A,, Miami University 1987; M.A., Columbia University 1989; J.D., Columbia Law School 1993. The Author is grateful to Carlos Ball and David Meyer who provided valuable comments on previous drafts. The Author thanks Texas Wesleyan University for providing the research support that made the preparation of this Article possible. 1. See Martha Albertson Fineman, What Placefor Family Privacy?, 67 GEo. WASH. L. REv. 1207, 1208 (1999). 2. 430 U.S. 762 (1977). 3. 405 U.S. 645 (1972). 4. 491 U.S. 110 (1989). 5. 431 U.S. 494 (1977). 6. 416 U.S. 1 (1974). 7. See ELizABETHBARTHOLET, FAMILYBONDS: ADOPTION, INFERTILITY, ANDThE NEW WoRLD OF CHILD PRODUCTION 232 (1999) (describing the family as "defined and confined by biology and marriage"). 8. 431 U.S. 816 (1977). 9. Id. at 843. 10. Stanleyv. Illinois, 405 U.S. 645, 651 (1972). 11. See Martha Albertson Fineman, Our Sacred Institution: The Ideal of the FamilyinAmerican Law andSociety, 1993 UTAHL. REV. 387,388 [hereinafterFineman, Our Sacred Institution]. "Historically only the nuclear family has been protected and promoted by legal and cultural institutions." Id. "Intimate entities that do not conform to the form designated as natural in most instances are not considered families at all." Id. at 404. 12. Discrimination against the unmarried who wish to purchase contraceptives is https://scholarship.law.missouri.edu/mlr/vol66/iss3/1 2 Storrow: Storrow: Policy of Family Privacy: 2001] THE POLICY OFFAMILYPRIVACY a parent-child relationship to be legally recognized as a family, either biological or legal consanguinity is required. 4 Nonetheless, such consanguinity by itself does not appear to guarantee familial status. Consanguinity's legal significance in defining who is and who is not a family may depend on whether the existence of a marriage undermines this significance." The foregoing synthesis of the constitutional law of family recognition is deliberately vague. The lines drawn in the case law purporting to define the family are blurry and incomplete.' 6 Nonetheless, recognition as a family matters. As the cases mentioned above make clear, the family is a private realm that the state cannot enter.' These cases also underscore the fact that groups of persons not regarded as families have no shield of privacy against governmental interference withtheirrelationships. The impact ofthis lack ofprivacyprotection can be grave. For instance, where a group of persons does not constitute a family in the eyes of the law, local ordinances can exclude them from living in certain forbidden. See Eisenstadt v. Baird, 405 U.S. 438,447 (1972) (finding no rational basis for denying unmarried persons access to contraceptives). Nevertheless, the activity for whichthe contraceptives are purchased is vulnerable to proscription. See Doev.Duling, 782 F.2d 1202, 1204 (4th Cir. 1986) (citing prohibition of fornication and cohabitation under Virginia law). Similarly, the mere ability of unmarried persons to live together as a household is vulnerable to proscription. See, e.g., City ofLadue v. Horn, 720 S.W.2d 745, 752 (Mo. CL App. 1986) C'There is no doubt that there is a governmental interest in marriage and in preserving the integrity of the biological or legal family. There is no concomitant governmental interest in keeping together a group of unrelated persons, no matter how closely they simulate a family.'). 13. See BARIHOLET, supranote 7, at 169 ('[A] married couple are not really a family until they produce the children who provide the blood link tying them all together.'). 14. See Katharine K. Baker, PropertyRules Meet FeministNeeds: Respecting Autonomyby ValuingConnection,59 OHIo ST.L.J. 1523,1539 (1998) (commentingthat where one cannot establish legal parentage, "one's substantive rights to a relationship -with the child depend on whether the [parent-child] relationship is supported by a [marital] relationship"). 15. See Michael H. v. Gerald D., 491 U.S. 110, 129-30 (1989) (upholding the statutory denial of standing of a genetic father to challenge marital-presumption paternity); JANET L. DoLGIN, DUNG THE FAMILY: LAW, TECHNOLOGY, AND REPRODUCIONiNANUNEAsYAGE 99,117 (1997) (noting that outcomes inunwed-father cases turn on the existence of a marital relationship); Baker, supranote 14, at 1539 (commenting that where it exists, the law is more deferential to marriage, a "horizontal relationship," than to parent-child relationships, "vertical relationships"). 16. See MarthaAlbertsonFineman, The FamiWy in CivilSociety, 75 CHL-KENTL. REv. 531, 532 (2000) [hereinafter Fineman, Fanify in Society] ('[T]he teim 'family' is susceptible to a variety of definitions."). 17. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Published by University of Missouri School of Law Scholarship Repository, 2001 3 Missouri Law Review, Vol. 66, Iss. 3 [2001], Art. 1 MISSOURILA WREVIEW [Vol. 66 neighborhoods."8 Where a father cannot marry his child's mother because she is married to someone else, the father has no standing to establish a legal tie to his child. 9 Whereas a father who is married to his child's mother cannot be deprived of custody short of a determination of his unfitness, 0 an unwed father can be denied mere visitation with his child based solely on a finding that it is not in the child's best interests.2 The decisions asserting these