The development of American family law, particularly the enumeration of rights, has often paralleled that of personal rights generally. All the same, neither the federal Bill of Rights nor counterpart state provisions offer explicit familial guarantees comparable to those traditionally conferred upon individuals. What prevails is a presumption that the family unit ought not to be subjected to intrusive control or supervision. There have even been reports of a proposed federal constitutional "amendment prohibiting the government from abridging the 'rights of the family.'" (1)
Over the years, a sense of privacy seems to have precluded societal intervention unless egregious conditions necessitated it. The onus of responsibility lies with the state in establishing compelling reasons for any attempt to remedy misdeeds. Throughout the nation's history, the recurring motif has favored non-interference, suggesting a conception of family law that belies overt paternalism. In this regard, procedural and substantive rights have accrued to the family, viewed as an entity essential not only to the individuals who comprise it, but also to the preservation of accepted social needs and goals.
The essay that follows does not focus upon issues and questions encompassed within the customary bounds of family law. (2) Instead, emphasis has been placed upon a review of contemporary cases that have touched upon unusual themes affecting internal relationships and conflicts both within and outside the family unit. Additionally, in the major cases, constitutional aspects (or their absence) are treated either directly or impliedly. Attention is directed to controversies litigated in the state courts from which, historically, most of American family law originated and where it continues to be centered. The cases often reflect a revived judicial federalism and are marked by nuances in an ever-growing and changing body of law.
THE FEDERAL JUDICIAL FRAMEWORK
The first glimpses of legal recognition for family autonomy arose within settings not integrally related to familial relations. Among the earliest cases suggesting a protective framework was Meyer v. Nebraska, (3) initiating occasional spurts of judicial inquiry. The sanctity and integrity of the family unit had long been recognized but without reference to specific constitutional language or, until Meyer, even to the common law. It was from the latter that a listing of individual rights and privileges, including the "right to marry, establish a home and bring up children," was derived as "essential to the orderly pursuit of happiness by free men." (4) When the Supreme Court acknowledged the existence of these rights in 1923, they were linked to conceptions of liberty, though it is noteworthy that they were not defined with exactness. (5) Almost simultaneously, the Court in Pierce v. Society of Sisters went on to sustain the "liberty of parents and guardians to direct the upbringing and education of children under their control." (6) Overtones of now much-decried substantive due process pervaded both opinions. In Meyer, the Court referred to the Fourteenth Amendment's due process clause as preventing the states from interfering with individual contractual rights, (7) thus raising the specter of a continued reliance on Lochner v. New York, (8) subsequently taken to be among the most denounced precedents of the century.
The opinions in Meyer and Pierce were written by Justice James McReynolds, (9) one of the most conservative members of the Court. In both cases, questions were raised concerning the types of schools that children should be required to attend and the foreign languages that they might elect to study. The former centered on state efforts to discourage attendance at parochial schools. (10) The latter, in large measure a legacy of World War I, was designed to eliminate the study of the German language as a part of the curriculum. (11) Whether in a broader, more inclusive context, family rights would have been set out with greater attention to scope and breadth remained problematic at the time. …