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Disestablishing the Family

44 Pages Posted: 11 Mar 2010 Last revised: 16 Nov 2011

Alice Ristroph

Brooklyn Law School

Melissa Murray

University of California, Berkeley - School of Law

Date Written: November 15, 2011

Abstract

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.

Keywords: family, criminal law, marriage, establishment, polygamy, free exercise

Suggested Citation

Ristroph, Alice and Murray, Melissa, Disestablishing the Family (November 15, 2011). Yale Law Journal Vol. 119, pp. 1236, 2010; UC Berkeley Public Law Research Paper No. 1567867. Available at SSRN: https://ssrn.com/abstract=1567867

Alice Ristroph

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Melissa Murray (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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