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
The Court denied a free exercise claim from the Church of Jesus Christ of Latter-day Saints
Applying the equal protection clause in Levy v. Louisiana
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
In Griswold v. Connecticut
In Pierce v. Society of Sisters
The Court declared in Stanley v. Illinois
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.
Fathers and mothers cannot be given substantially unequal treatment by state courts in custody and adoption decisions according to Caban v. Mohammed
In Palmore v. Sadoti
In Lassiter v. Department of Social Services
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
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 American
In the 1940’s the Court decided two cases affecting the interests of children. In West Virginia State Board of Education v. Barnette
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
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.
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