For seventy-five years, the Supreme Court's protection of the constitutional rights of family privacy has had two sides. On the outside is a veneer of often absolutist rhetoric exalting the "sanctity of the family" and sketching the boundaries of a "private realm of family life which the state cannot enter." On the inside is an essentially pragmatic approach to deciding actual controversies involving the family.
In this Article, Professor Meyer contends that the Court has been right to moderate its scrutiny because the rigidity of traditional fundamental-rights analysis is ill-suited to the task of mediating the complex and intersecting private and communal interests which are often at stake in the family. He argues, however, that the Court has been wrong to resist acknowledging this reality. Besides generating confusion, the Court's refusal to come clean about the qualified nature of family-privacy rights paradoxically has undermined the values of autonomy and intimacy that the rights are said to exalt. The Court's nominal adherence to the traditional strict-scrutiny formula has pushed it- to construe the scope of family-privacy rights narrowly at the threshold in order to leave tolerable leeway for state regulation. And the Court's tendency to justify its narrow construction in terms of the desert or legitimacy of particular family relationships or decisions itself has regulatory significance, compounding the extent of the state's intrusion into family life.
Professor Meyer concludes by arguing that openly embracing the sort of intermediate review that in fact has characterized much of the Court's work in this context would place family-privacy rights on a less exalted, but ultimately more secure plane. And he points to several criteria embedded in the Court's past cases that would help provide greater determinacy to a constitutional "reasonableness" standard for state action directed at the family.
David D. Meyer,
The Paradox of Family Privacy,
53 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol53/iss2/8