YES, VIRGINIA, THE CONSTITUTION APPLIES IN FAMILY COURT, TOO

AUGUST 2018

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In the last few years, there has been growing awareness of the Constitutional issues that arise in family law cases. Family law cases implicate a number of Constitutional doctrines, including the First Amendment and the Establishment Clause. They also implicate substantive and procedural due process and equal protection.

According to Yale Law Professor Douglas NeJaime: Many of the leading constitutional issues of our day implicate family law matters. Modern substantive due process is replete with questions of family law. Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Planned Parenthood v. Casey, and Lawrence v. Texas raise issues of family formation, intimate relationships, and reproductive decision making.

Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley address the contours of marriage. Moore v. City of East Cleveland protects the extended family. Stanley v. Illinois, Lehr v. Robertson, and Michael H. v. Gerald D. consider the rights of unmarried fathers. Troxel v. Granville protects a parent’s childrearing decisions. Douglas NeJamie, “The Family’s Constitution,” 32 Constitutional Commentary 413 (2017), Yale Law School Public Law Research Paper No. 621.

Modern equal protection law, too, features a significant number of family law issues. A string of cases beginning in the late 1960s extends rights to nonmarital parent-child relationships. Leading sex equality decisions dating back to the 1970s render rights and responsibilities regarding marriage and childrearing formally gender neutral.

Oddly, judges and practitioners often overlook basic Constitutional requirements in traditional family law cases. As one commentator observed, judges regularly issue orders in these cases that would never pass Constitutional muster in other contexts: Under the amorphous “best interests of the child” standard, judges have ordered parents to bring their children to church, avoid criticizing ex-spouses or their religious beliefs, refrain from bringing intimate partners near the children, and even communicate feelings of love toward their ex-spouses. Although some scholarship has addressed judges’ consideration of parents’ religious beliefs or sexual preferences in granting custody, the constitutionality of family court orders structuring family interaction and crafting rules of parental behavior … “has largely escaped the notice of all but a few First Amendment scholars” and “survives partly because of the little attention paid to family law proceedings.” Kelly Kanavy, “The State and the ‘Psycho Ex-Wife’: Parents’ Rights, Children’s Interests, and the First Amendment,” 161 U. Penn. L. Rev. 1081 (2013).

Thus, family law courtrooms have the potential to become constitutional “twilight zones” in which judges adjudicating the responsibilities and obligations of the most basic unit of American society illegitimately violate parents’ constitutional rights.