Family and children

Men, women, their offspring, and other relatives. The Supreme Court has applied constitutional protection to family issues such as the right to marry, the right to privacy, the right of parents to raise and educate children, and in some cases the rights of children.

Family law in the United States is created largely by the states rather than the federal government. Historically the Supreme Court was reticent to interfere in state family policy, but it overturned state and local law when constitutional rights were at issue. The Court also had an indirect effect on families by refusing to accept many cases that challenge state family law and policy. In this way, the Court has sanctioned a variety of family policies that can differ a great deal from state to state.

A threshold question in family law is the definition of a family. When government stepped in to create its own definition, the Court at times upheld the government and at other times declared this action in violation of the Constitution. A local government was prohibited from limiting the definition of family to include only a nuclear family for purposes of zoning in Moore v. City of East Cleveland[case]Moore v. City of East Cleveland[Moore v. City of East Cleveland] (1977). A grandmother living with her son, his son, and another grandchild, faced eviction because hers was not considered a “single family” under the city ordinance.

The Court denied a free exercise claim from the Church of Jesus Christ of Latter-day SaintsChurch of Jesus Christ of Latter-day Saints (Mormons) opposing a federal law banning polygamy in Reynolds v. United States[case]Reynolds v. United States[Reynolds v. United States] (1879). The Court considered the practice to be “odious” and therefore a threat to public morality. This decision protected the public policy of monogamous marriages and allowed the government to define “family.”

Applying the equal protection clause in Levy v. Louisiana[case]Levy v. Louisiana[Levy v. Louisiana] (1968), the Court determined that illegitimate children cannot be given treatment that is substantially unequal to that of children who are born to parents who are married. Children who are born to parents who are not married have both equal protection and due process protection against arbitrary state laws.

Marriage and Privacy

The Court protected the right of people of different races to marry by declaring unconstitutional state laws that prohibited interracial marriage (miscegenation laws) in Loving v. Virginia[case]Loving v. Virginia[Loving v. Virginia] (1967). The right of prison inmates to marry was protected from arbitrary government restriction in Turner v. Safley[case]Turner v. Safley[Turner v. Safley] (1987). A state law prohibiting a person who had not made child support payments from obtaining a marriage license was declared unconstitutional in Zablocki v. Redhail[case]Zablocki v. Redhail[Zablocki v. Redhail] (1978). Although whether the corresponding right to divorce exists is not clear, the Court ruled that indigent people seeking to go to court to “adjust their fundamental human relationships” must not be prevented from doing so by nominal court fees.

In Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965), the Court shielded marital privacy by protecting the right of married couples to use contraceptives. The Court expressed its disdain for governmental intrusion into the marriage relationship. Following the precedent of Griswold, the Court decided in 1973 that the word “liberty” in the due process clause of the Fourteenth Amendment, which encompasses an implied right of privacy, protects a woman’s right to have an abortion in Roe v. Wade[case]Roe v. Wade[Roe v. Wade]. This decision has both directly and indirectly had a major impact on the issues of family and children.

Parents and Children

In Pierce v. Society of Sisters[case]Pierce v. Society of Sisters[Pierce v. Society of Sisters] (1925), the right of parents to educate their children in parochial school was protected when a state attempted to require that all children be educated in public schools. In Wisconsin v. Yoder[case]Wisconsin v. Yoder[Wisconsin v. Yoder](1972), the parental right to educate a child at home was protected when Amish parents refused to send their children to public high schools under the state’s compulsory education law. In both cases, the free exercise clause of the First Amendment was applied through the due process clause of the Fourteenth Amendment to protect parental religious freedom.

The Court declared in Stanley v. Illinois[case]Stanley v. Illinois[Stanley v. Illinois] (1972) that an unwed fatherIllegitimacy who has an established relationship with his child must be given the due process protections of notice and a hearing before parental rights can be terminated. In the case of Lehr v. Robertson[case]Lehr v. Robertson[Lehr v. Robertson] (1983), an unwed father challenged his child’s adoption because he had not been given notice and a hearing. This case was important in establishing constitutional protection for parental rights because the Court went further than the requirement for notice and hearing by asserting that the biological parent’s right to establish a relationship with his (or her) child held constitutional status as a liberty interest under the due process clause of the Fourteenth Amendment. However, the unwed father in Lehr failed to meet state statutory guidelines to assert paternity, and his constitutional rights to challenge his child’s adoption and to establish a relationship with his child were considered to be forfeited. Lehr served as a precedent in the 1994 case of Baby Richard v. Kirchner[case]Baby Richard v. Kirchner[Baby Richard v. Kirchner] (1994), in which the biological father gained custody of his son even though the child had lived with an adoptive family for four years. The father in that case had not forfeited his constitutional liberty interest to establish a relationship with his son and had spent most of those four years attempting to gain legal custody of his son through the courts.

A man who fathered a daughter by a woman who was married to another man, however, was not granted constitutional protection in seeking custody or visitation rights. In Michael H. v. Gerald D.[case]Michael H. v. Gerald D.[Michael H. v. Gerald D.] (1989), the Court determined that a state may refuse to recognize the rights of a biological father when, as in that case, an ongoing family unit is the subject of protection. The Court expressed that the family unit is an important component of American society and that it is the appropriate role of government to protect the family.

Fathers and mothers cannot be given substantially unequal treatment by state courts in custody and adoption decisions according to Caban v. Mohammed[case]Caban v. Mohammed[Caban v. Mohammed] (1979). The unwed father in that case, protected by the equal protection clause of the Fourteenth Amendment, was allowed to block his children’s adoption by their stepfather even though state statute had protected only the mother’s right to block adoption.

In Palmore v. Sadoti[case]Palmore v. Sadoti[Palmore v. Sadoti] (1984), the states were prohibited under the equal protection clause from making custody decisions solely on the basis of race. A white mother had lost custody of her daughter because she was living with, and later married, an African American man. The Court did not, however, prohibit race from being used as one of several factors in making custody and adoption decisions.

In Lassiter v. Department of Social Services[case]Lassiter v. Department of Social Services[Lassiter v. Department of Social Services] (1981), the Court ruled that indigent parents do not have the constitutional right to counsel appointed by the state in proceedings in which parental rights may be terminated. One year later, the Court addressed the issue of what standard of proof should be required in termination proceedings in Santosky v. Kramer[case]Santosky v. Kramer[Santosky v. Kramer] (1982). The Court declared that the lower standard of “preponderance of evidence” was not sufficient to protect parental rights but required states to satisfy the higher standard of “clear and convincing evidence” before parental rights may be terminated. Both cases were decided under the due process clause of the Fourteenth Amendment.

The Court was not particularly generous in protecting parents who abuse their children. One parent attempted to use the Fourth Amendment protection against unreasonable searches (a protection ordinarily within the province of criminal law) by government authorities involved in family welfare issues. The Court declined, in Wyman v. James[case]Wyman v. James[Wyman v. James] (1971), to constitutionally protect a mother from an allegedly unreasonable visit by an Aid to Families with Dependent Children worker who discovered that the child had multiple injuries. In a similar decision in 1990 the Court refused to use the Fifth Amendment protection against self-incrimination on behalf of a mother who was required by court order to bring her abused child to court (Baltimore City Department of Social Services v. Bouknight).

In response to the high number of tribal children who were leaving the reservations under state court custody and adoption decisions, Congress passed the Indian Child Welfare Act of 1978, which took jurisdiction of such cases away from state courts. Under this act, the Supreme Court upheld the right of a Native AmericanNative American sovereignty tribe to have jurisdiction, with some exceptions, over custody and adoption decisions that involved tribal children in Mississippi Band of Choctaw Indians v. Holyfield[case]Mississippi Band of Choctaw Indians v. Holyfield[Mississippi Band of Choctaw Indians v. Holyfield] (1989). Ultimately the tribal court in that case made the decision to allow the child to remain with the adoptive non-Indian family, but in many other cases, Indian children were placed with extended family members, a reflection of tribal tradition, and remained on the reservation.

Rights of Children

In the 1940’s the Court decided two cases affecting the interests of children. In West Virginia State Board of Education v. Barnette[case]West Virginia State Board of Education v. Barnette[West Virginia State Board of Education v. Barnette] (1943), the Court protected the free exercise right of a student to refuse to salute and pledge allegiance to the flag for religious reasons. In Prince v. Massachusetts[case]Prince v. Massachusetts[Prince v. Massachusetts] (1944), the Court upheld an ordinance that protected children from being put in danger near a public road. In that case, a woman was passing out religious literature with her nine-year-old niece when she was ordered to cease in the interests of the child. The ordinance, according to the Court, did not violate the free exercise of religion.

During the Vietnam War, the Court protected the rights of students to use symbolic speech in public schools. When a student was suspended for wearing a black armband to school in protest of the war, the Court protected her free speech rights in Tinker v. Des Moines Independent Community School District[case]Tinker v. Des Moines Independent Community School District[Tinker v. Des Moines Independent Community School District] (1969) because her actions were not disruptive to the educational process.

Justice William O. Douglas raised an issue about the rights of children in his partial dissent in the Yoder case. Although he had agreed that the Amish had a right to educate their children at home, he disagreed that the decision should be based on the right of the parents to educate their children. He thought instead that the Court should be concerned about whether the children wanted to be educated at home or in public school. At times the Court protected the right of parents to raise their children, and at others it protected the rights of children. A problem arises, according to Justice Douglas, if these rights are in opposition.

Further Reading

  • Sources of information on the family and legal issues include E. Bartholet’s Family Bonds (Boston: Houghton Mifflin, 1993) and Janet Dolgin’s Defining the Family (New York: New York University Press, 1997). David Westfall’s Family Law (St. Paul, Minn.: West Publishing, 1994) and Cases, Comments and Questions on Family Law (4th ed., St. Paul, Minn.: West Publishing, 1998) by Harry Krause et al. examine the basics of family law. Margaret Conway’s Women and Public Policy (Washington, D.C.: Congressional Quarterly Press, 1995) looks at the relationship between women and public policy. Ziba Mir-Hosseini’s Marriage on Trial (New York: St. Martin’s, 1993) focuses on marriage-related legal issues.


Birth control and contraception

Due process, substantive



Native American law

Pregnancy, disability, and maternity leaves

Privacy, right to