The Forgotten Family Law of Eisenstadt v. Baird

Abstract

Recent Supreme Court rulings on marriage equality and religious objections to contraception have obscured the legacy of Eisenstadt v. Baird, the 1972 case that promised to change the course of family law. In extending constitutional protection to unmarried persons’ access to birth control, Eisenstadt heralded a new family law that would be more inclusive, liberatory, sex-positive, and feminist than its predecessors. Although several forward-looking shifts in family law can trace their roots to this case and it lives on in today’s jurisprudence, Eisenstadt’s full transformative potential has been forgotten, if not co-opted, in service of a narrow and largely traditional agenda.

This essay returns to Eisenstadt and its promise. The case offers an illuminating point of departure for examining family law because it defies the field’s traditional boundaries: Eisenstadt concerns sex, but has nothing to do with domesticity. It makes marriage beside the point, thus ignoring a central pillar of traditional family law. And while collectives — whether the couple, parents and children, or even communes and extended families — provide the typical focus of family law, Eisenstadt on its face emphasizes the individual.

In recovering Eisenstadt’s legacy and exploring what it means for contemporary family law, this essay makes three contributions: First, it reveals how Eisenstadt’s mismatch with family law’s usual concerns helped revise the understanding of the field itself. Second, in examining both Eisenstadt’s promise for family law and the ways this promise has remained unfulfilled, the analysis develops a critical framework that considers, in turn, three axes that have shaped, and reshaped, the field: family, sex, and gender. Finally, the look back at Eisenstadt exposes fundamental contradictions that riddle family law today, while offering valuable insights about recent controversies, particularly cases on birth control access and the right to marry.

As the analysis shows, Eisenstadt has survived recent retrenchments, but with its more expansive possibilities neutralized. Courts continue to cite it, but they fold it into a family law that — despite modernizing changes — remains stubbornly fixed on marriage and other traditional elements that Eisenstadt had boldly challenged.

Keywords: family law, birth control, family, sex, gender, feminism