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Vanderbilt Law Review

David D. Meyer

First Page

525

Abstract

When it comes to the nature of the Constitution's protection for freedom of choice in matters relating to family life, there is wide agreement on perhaps only two points: first, that the subject raises "questions of unsurpassed significance in th[e] Court's interpretation of the Constitution,"' and, second, that the Court's halting passes at these questions have left its family privacy doctrine in a state of unsurpassed disarray. The significance of the questions is transparent. A comprehensive account of the subject calls for answers to the most basic and intractable problems of judicial review, answers that might justify the judiciary's role in negating, without textual authority, majoritarian governance in an area that is of particularly profound interest not only to the individual but also to the polity.

Yet answers in this context have been particularly slow in coming. The Supreme Court has eschewed any effort to develop a unified theory that might define the special content of family liberty and justify the extraordinary limitations placed upon state authority in this area. Instead, the Court has been content to let strands of doctrine emerge piecemeal. Rights to abortion, contraception, marriage, kinship, and the custody and rearing of children have, for the most part, sprung up independently of one another, only later converging into a loosely recognized constellation of "family privacy" rights.

Clarity has been impeded, moreover, not only by the Court's failure to adopt any cohesive theory that might tie these rights together, but also by its refusal to adhere consistently to any single standard of constitutional review. At one time or another, the Court has denominated each of the individual rights comprising family privacy as "fundamental," suggesting that any significant govern- mental intrusions upon them should be subject to the narrowest possible limits. Yet the Court's actual behavior in specific cases has left a large wake of uncertainty and confusion. In articulating the scope of its review, the Court has seemed consciously to avoid the familiar language of strict scrutiny, opting instead to muddy the waters with ambiguous hedge phrases and arguable synonyms. Even more than in other areas of unenumerated or fundamental rights, therefore, the Court's family privacy cases have left pointedly unclear both what sorts of private conduct are deserving of heightened protection and what form that protection should take.

Importantly, all the while the Court has followed this middling course, it has insisted upon maintaining the veneer that it is protecting fundamental rights in a traditional, doctrinally familiar manner. The result, as the California Supreme Court recently lamented, is a constitutional doctrine "without any coherent legal definition or standard."

In this Article, I argue that there is an important and unfortunate disjunction between what the Court says about family privacy rights and how it actually goes about protecting those rights in real cases. In Part I, I review the Court's family-privacy cases and conclude that, notwithstanding rhetoric consistently exalting the fundamental nature of these rights, the Court in fact has taken a more meandering course. Above all else, the Court has been pragmatic, tacitly adjusting its scrutiny in light of the magnitude of the state's intrusion and the strength of the state's regulatory interests. Only in the context of abortion, however, has the Court now come close to acknowledging openly the more limited nature of its review.

In Part II, I consider the consequences of this disjunction. Specifically, I argue that the Court's illusory adherence to the fundamental-rights framework, while in fact applying a more flexible standard of review, has worked significant perversions in the constitutional doctrine. Shifting conceptions of the locus of family privacy rights-from the family as an entity to particular individuals residing within the family-have coincided with expanded notions of state action to produce a troubling paradox: a constitutional doctrine meant to limit state intrusion into the family has been converted into an invitation for intervention of a particular kind, as courts increasingly have permitted the "fundamental rights" of certain family members to mandate the outcome of intrafamily disputes. Having taken too seriously the Supreme Court's fundamental--rights rhetoric, some state and lower federal courts have held that the Constitution requires, for example, that a child submit to visitation with an incarcerated or abusive parent' or that custody be awarded to an absent biological parent rather than a step-parent or guardian who may have raised a child for years.

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