Family Law Federalism: Divorce and the Constitution
Estin, Ann Laquer, The William and Mary Bill of Rights Journal
American divorce law was transformed by the Supreme Court in a series of decisions beginning with Williams v. North Carolina in 1942. These constitutional full faith and credit cases resolved a long-standing federalism problem by redefining the scope of state power over marital status. With these decisions, the Court shifted from an analysis based on the competing interests of different states to an approach that highlighted the individual interests of the parties involved. This change fundamentally altered state power over the family by extending to individuals greater control of their marital status. In the process, the Court cleared a path for innovations including unilateral no-fault divorce and divorce based on mutual consent and laid the foundation for a stronger national role in domestic relations law.
In the American conception of federalism, families are a matter for local rather than national control. This premise was central in the popular and congressional debates before and after the Civil War on subjects such as slavery and women's emancipation,1 and the same trope complicates the present debate over legal recognition for samesex marriage. The premise appeared in Supreme Court opinions in the nineteenth century2 and reemerged in the jurisprudence of the 1990s when the Court reshaped the limits of federal authority under the Commerce Clause.3
The traditional association of "family" with "local" assumes that families can be meaningfully identified with specific geographic territories for regulatory purposes. While this notion has a powerful rhetorical and emotional appeal, it was already problematic in the middle of the nineteenth century and had become largely untenable a hundred years later.4 Throughout this time period, attempts to sustain state authority over the family generated enormous conflict of laws problems, particularly in the context of divorce and child custody disputes.5 The federalism problem at the core of the divorce debate was ultimately truncated by the Supreme Court in a series of decisions that began in 1942.6 Acting on the basis of constitutional full faith and credit principles, the Court severed the connection between state power and marital status, changing the shape of both divorce law and American federalism.
In the literature on the Supreme Court's transformation of federalism in the mid-twentieth century and in the literature on the history of divorce,7 the intersection between divorce law and federalism has gone largely unexplored.8 This Article reconnects these subjects, analyzing the ways in which the Supreme Court reframed divorce law and federalism in the 1940s and 1950s.9 The Article traces the Supreme Court's important innovations into the "divorce revolution" ofthe 1960s and 1970s and examines the Court's transformation of constitutional full faith and credit from a federalist doctrine that centered on state interests to an individual rights discourse that highlighted the interests of ordinary citizens. 10 The Article argues that the divorce cases fundamentally altered state power to set the normative boundaries of family Hf e by extending to individual citizens the ability to choose which jurisdiction would control their marital status. The construction of this individual right, in the interstices ofthe Full Faith and Credit Clause,11 suggests an important tension between a strong theory of federalism and a strong conception of national citizenship. In this respect, these cases seem to anticipate the more extensive infusion of constitutional principles into family law that occupied the Court during the decades that followed.
Despite the survival of old rhetoric assigning the family to local authority, the constitutional model that consigned the family to local control was effectively discarded fifty years ago. Family law in America today is extensively shaped by national law, with both Congress and the Supreme Court deeply engaged in setting policies, defining norms, and harmonizing the competing laws of different states. …