University of Connecticut OpenCommons@UConn Faculty Articles and Papers School of Law 1996 Lochner for Women: The deologI y of Separate Spheres in Muller v. Oregon Anne Dailey University of Connecticut School of Law Follow this and additional works at: https://opencommons.uconn.edu/law_papers Part of the Constitutional Law Commons, Family Law Commons, and the Privacy Law Commons Recommended Citation Dailey, Anne, "Lochner for Women: The deI ology of Separate Spheres in Muller v. Oregon" (1996). Faculty Articles and Papers. 293. https://opencommons.uconn.edu/law_papers/293 +(,121/,1( Citation: 67 Tul. L. Rev. 955 1992-1993 Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Aug 16 12:51:15 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-3992 CONSTITUTIONAL PRIVACY AND THE JUST FAMILY ANNE C. DAILEY* I. INTRODUCTION ..................................... 955 II. THE CONVENTIONAL PORTRAIT OF CONSTITUTIONAL PRIVACY ......................... 962 A. The Privatizationof the Family ................. 964 B. The Liberalization of the Family ................ 972 C. The Conflict Between Privatization and Liberalization................................... 979 III. CONFLICT WITHIN THE "PRIVATE" FAMILY ....... 982 A. Authority Within the Private Family ............ 983 B. The PoliticalDimensions of Family Life ......... 990 IV. THE CONSTITUTIONAL PROMISE OF FAMILY JUSTICE ............................................ 994 A. The Family as a Public Institution .............. 997 B. Family Tradition ............................... 1008 C. Family Justice .................................. 1016 1. Public and Private in Feminist Thought ..... 1018 2. A Progressive Approach to the Public Fam ily ...................................... 1021 3. Family Justice in Hodgson v. Minnesota ..... 1027 V. CONCLUSION ....................................... 1030 I. INTRODUCTION Liberal political theory has for the most part ignored the family on the unstated assumption that the family is not an insti- tution relevant to political life.' Under liberalism, the domestic * Associate Professor of Law, University of Connecticut. B.A., 1983, Yale University; J.D., 1987, Harvard Law School. I would like to thank David Cole, Richard Dailey, Steven Ecker, Carolyn Jones, Rick Kay, Martha Minow, Laurie Parsons, Jeremy Paul, Nomi Stolzenberg, and Carol Weisbrod for their extremely helpful comments and criticisms. Special thanks go to my research assistant, Nancy Meyer. 1. See SUSAN M. OKIN, JUSTICE, GENDER AND THE FAMILY 9 (1989); CAROLE PATEMAN, THE DISORDER OF WOMEN: DEMOCRACY, FEMINISM AND POLITICAL THE- ORY 3 (1989). A recent exception to this tradition is the work of Michael Walzer. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 227-42 (1983). Legal philosophers in the liberal tradition have, by virtue of omission, agreed. See infra Part II. 955 956 TULANE LAW REVIEW[ [Vol. 67 sphere of family life is generally perceived as lying outside the realm of legitimate political discourse. Set apart from the public world of work and politics, the family is understood to offer a private sanctuary of individual freedom safe from intervention by government or other public forces. Since the early part of this century, the Supreme Court has adopted a view of the family as a private institution wherein individuals may pursue their own conception of "the good life" free from government intervention. This constitutional doctrine of family privacy, which the Court has grounded in the guaran- tee of "liberty" under the Due Process Clause of the Fourteenth Amendment, is said to preserve a "private realm of family life which the state cannot enter."' 2 This most "private" of social institutions has established itself as a central focus of heightened constitutional concern in a line of cases affirming the importance of the family as a fundamental social unit. Despite this vision of the private family in liberal theory and constitutional law, political discourse on the family is hardly an unknown phenomenon in this country. From laws prohibit- ing divorce in the early years of the republic to contemporary laws denying homosexuals the right to marry, the state has con- tinually shaped and promoted a particular vision of family life. Far from prohibiting state intervention in a prepolitical social sphere, the ideal of family privacy expresses a particular set of family values by protecting only those social relations that the state deems worth protecting. The boundaries of family privacy are drawn by political choice; and the decision regarding which relationships fall within these disputed boundaries is one that helps to define the content of family life. The ongoing and increasingly heated debate over family values and family structure is carried out today most vigorously at the level of everyday politics. Issues of family life were at the center of the recent presidential election, and legislation aimed at improving, and even restructuring, family life has gained increasing media attention and popular support. In the debate over family values, conservatives tend to call for laws reinforcing 2. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). 3. This line of cases, beginning with Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), includes Griswold v. Connecticut, 381 U.S. 479 (1965), Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (plurality opinion), and, most recently, Bowers v. Hardwick, 478 U.S. 186 (1986). See infra text accompany- ing notes 40-54, 85-93. 1993] CONSTITUTIONAL PRIVACY 957 the traditional family, while progressives typically pursue legis- lation addressing the needs of single parents and working mothers. From across the political spectrum, family life has moved to the forefront of our national political debate. It is time for liberal theory and constitutional law to acknowledge the existence and importance of political discourse on the family and to relinquish the myth of family privacy. This Article has two broad goals: the first is to draw atten- tion to the central role that the family has played, and continues to play, in shaping the Supreme Court's interpretation of consti- tutional privacy. This insight carries important consequences because it reveals a deep tension within privacy doctine between the competing goals of safeguarding individual autonomy and insulating communal familial relations. Individual and family together may claim a right of privacy against unwanted inter- vention by the state. But when individual and family interests differ-when the family is divided-the personal autonomy of the individual comes into direct conflict with the institutional autonomy of the family unit. Within the framework of constitu- tional privacy lies a fundamental conflict between the principle of individual sovereignty and the principle of communal self- 4 government. The Supreme Court has attempted to resolve this conflict in favor of individual rights by adopting a view of children as "incompetent" individuals whose development depends on the proper organic functioning of familial relationships of authority. In the Court's view, parental authority is necessary to prepare children for their "eventual participation in a free society."5 The Supreme Court has thus come to define the constitutional right of family privacy in terms of the development of future citizens 4. Contemporary constitutional scholarship has generally dealt with this conflict by simply ignoring the family's independent constitutional significance, although exceptions to this scholarly oversight do exist. See, eg., June A. Eichbaum, Towards an Autonomy- Based Theory of ConstitutionalPrivacy: Beyond the Ideology of FamilialPrivacy, 14 HARV. C.R.-C.L. L. REv. 361 (1979); Bruce C. Hafen, The ConstitutionalStatus of Marriage, Kinship, and Sexual Privacy-Balancingthe Individual and Social Interests, 81 MICH. L. REV.463 (1983). Although Eichbaum and Hafen recognize the doctrinal conflict between individual and family privacy, they draw from this insight very different conclusions from those presented here. In Robert A. Burt, The Constitution of the Family, 1979 Sup. Cr. REv. 329, although the author does not ignore the family, he contends that "principled legitimacy for parental authority as such in preference to other sources of social power commands no adherents yet among liberal or conservative Justices of this generation." Ia at 351 (footnote omitted). This view is not true today, if it ever was. 5. Bellotti v. Baird, 443 U.S. 622, 638-39 (1979). 958 TULANE LAW REVIEW [v/ol. 67 and the maintenance of a liberal democratic order. Yet in so doing, the Court has opened up the "private" family to political meaning and public control, thereby stripping constitutional protection for the family of its privacy rationale. This Article thus aims first to reveal the political meaning of family life underlying the Supreme Court's commitment to family privacy. The second goal of this Article is to formulate an alterna- tive constitutional approach grounded in an understanding of the family as a distinctly "public"