Disestablishing the Family
Seton Hall University - School of Law
University of California, Berkeley - School of Law
November 15, 2011
Yale Law Journal Vol. 119, pp. 1236, 2010
UC Berkeley Public Law Research Paper No. 1567867
This Essay explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called "free exercise of the family" have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Essay suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.
Number of Pages in PDF File: 44
Keywords: family, criminal law, marriage, establishment, polygamy, free exercise
Date posted: March 11, 2010 ; Last revised: November 16, 2011
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