Introduction to the Special Collection on the Intersection of Families and the Law

Family Relations, October 2002 | Go to article overview

Introduction to the Special Collection on the Intersection of Families and the Law


Introduction to the Special Collection on the Intersection of Families and the Law*

In the U. S., citizens' rights are rooted in the founding documents of American democracy, the United States Constitution and Declaration of Independence. These documents protect citizens' individual rights against unwarranted government intrusion. As suggested by Williamson (1997), the Constitution protects citizens' rights through the application of four basic principles of America's democracy:

* Equality of Rights: Recognition and implementation in our public and private lives that all people are created equal and should be treated equally by the American government; equality of opportunity, although not guaranteed by the Constitution, is often thought to follow in the context of equality of rights.

* E Pluribus Unum: Despite our diversity, there is a national unity that focuses on the principles of equality, liberty, and the common good.

* Balance of Individual Liberty and Protection of the Common Good: It is the responsibility of the government to protect the well-being of citizens using a system of checks and balances to guard individual liberties, guaranteeing citizens freedom from unwarranted government intrusion.

* Religious Freedom: Citizens have the right to practice the religious faith of their choice.

Various interpretations of these documents and principles create legal tension among citizens because everyone does not share the views of Williamson (1977). Historically, citizens failed to reach consensus on the principle of equal rights and opportunity. At one point, we blatantly tolerated unequal treatment of women (Hoff, 1991) and Blacks (Bell, 1992) because laws existed on the local, state, and federal levels that limited or omitted their political involvement. They could not vote or did not have access to education and fair housing options. Special rights, instead of fundamental rights, still shape the legal debate as we struggle with the unequal treatment of lesbian and gay families (Harvard Law Review [HLR], 1980).

Currently, we face the challenge of balancing the rights of all citizens, including international residents, with the overall safety of all Americans. The potential use of a national identification card and other national security measures are examples of the legal tension associated with the principles of liberty interests and equal protection versus protecting our society and way of life. Research on issues of privacy rights as influenced by the terrorist attacks of September 11, 2001, holds promise for family scholars as we seek to determine the legal impact of September 11th on U.S. and international families.

Although these principles are not mutually exclusive, an important aspect of contemporary family law is the balance of individual liberty and the protection of the common good. We seek to honor parental autonomy (i.e., Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925; Wisconsin v. Yoder, 1972) while protecting the rights of children (i.e., Prince v. Massachusetts, 1944; Wisconsin v. Yoder). We want protection against unwarranted government intrusion on parental and family autonomy balanced with the nation's responsibility to protect children from maltreatment or threat of harm (i.e., In re C., 1977; State v. Thorpe, 1981). We desire to promote strong family values with the recognition of the diverse, complex familial issues associated with grandparent visitation rights, lesbian and gay parents, reproductive technologies, and stepparent rights and responsibilities. Despite our ideological continuum of liberal, moderate, or conservative, each of us desires to promote healthy families and the best interests of children. In this special collection, we encourage our readers to look at family law against the backdrop of the balance of rights within and across families.

Over the last 12 years, 14 articles appeared in Family Relations that specifically focused on family case law or presented research based on court cases or the experiences of attorneys and judges (see Table 1). …

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