The Family and the Constitution

The Issues:  What if any special status does the family enjoy under the Constitution?  Do parents have the right to raise their children as they see fit?
  If families or parents are guaranteed rights under the Constitution, how do we define families and parents?


The Supreme Court said in the 1977 case of Moore v. East Cleveland that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation's history and tradition."  Moore found protection for an extended family's choice of living arrangements just three years after rejecting a claim that the choice of living arrangements outside of the family context were protected (See Belle Terre v Boraas).  The Court's solicitude for the family is also evident in the 1972 case of Yoder v Wisconsin, holding that a state compulsory education law could not be applied against the parents of 14- and 15-year-old Amish children against the wishes of the parents.  The Court's decision in Yoder rested primarily on Free Exercise Clause, but the Court subsequently interpreted Yoder as resting in part on the substantive due process rights of parents to make fundamental decisions affecting the lives of their children.  Interestingly, the lone dissent in Yoder came from Justice Douglas, who objected to the Court's unwillingness to inquire whether the Amish children agreed with their parent's preference for a return to their agrarian community before the distractions of sock hops, football games, and high school social life make that choice less appealing. 

Of course, there is disagreement today as to what constitutes a family and what persons are entitled to receive the constitutional protections of parents.  The Michael M. v. Gerald D. case, for example, considers whether the father of a girl conceived in an extra-marital relationship has a fundamental right to participate in any way in his child's upbringing.  The case also provides an interesting debate among justices on the question of how fundamental rights protected by the Due Process Clause ought to be identified.

In 2000, the Court decided a case, Troxel v. Granville,  challenging the constitutionality of a Washington law that allowed courts to order that parents provide time for visitation of their children by grandparents and others.  A majority of the Court agreed with the Washington Supreme Court that the law was facially invalid because it infringed upon the fundamental right of parents to raise their children.  Interestingly, Justices Thomas and Scalia (the former in a concurring opinion and the latter in a dissent) wrote opinions suggesting that the Constitution, rightly interpreted, provides no protection whatsoever for the right of parents to raise their children.  However important the rights of parents may be, according to Scalia, it is a right that must be legislatively--and not judicially--protected. 

Wisconsin v. Yoder (1972)
Belle Terre v Boraas (1974)
Moore v. East Cleveland (1977)
Michael H. v. Gerald D. (1989)
Troxel v. Granville (2000)

The Troxels and some of their grandchildren (CNN).


1. Why should history and tradition determine what institutions and rights are viewed as fundamental, and therefore protected by the Constitution?
2.  Why isn't the decision to share a house with non-family members also the sort of fundament personal decision that the Constitution should protect?
3.  In Moore, the Court views the decision of a grandmother to live with grandchilden as a choice relating family life and therefore deserving of special protection.  What about a decision of adult siblings to live together?  Adult cousins?  Adult second cousins?  What is a family and why does it deserve special protection?
4.  In Michael H., how many justices agreed with Justice Scalia's assertion that we should define the liberty involved in a case at the "most specific" level possible, then ask whether the liberty so defined is one that has "been traditionally protected in our society"?
5. It's been said that Justice Scalia seems to want to protect "a Norman Rockwell" America.  Do you agree?  Is there anything wrong with wanting to do that?
6. Is Justice Brennan right in asserting that Court precedents support defining the liberty involved in a case at a broader level of generality than that urged by Justice Scalia? 
7.  How would you define the liberty involved in
Michael H. ?
8.  Does Justice Scalia's opinion in Troxel suggest that he was being a bit disingenuous in Michael H. when he urged a narrow--but still meaningful--doctrine of substantive due process, and that what he really wants to do is get the Court out of the substantive due process field completely?

Article on the Washington State case

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