The Family's Constitution
32 Constitutional Commentary 413 (2017)
36 Pages Posted: 4 Oct 2017
Date Written: October 3, 2017
This symposium essay considers the interaction between family law and constitutional law. Conventional understandings assume that family law and constitutional law exist in relatively separate spheres, occasionally meeting when constitutional law, exercising power in a top-down way, dictates new directions for family regulation. But accounts of this kind fail to capture the dialogic relationship between family law and constitutional law. Family law and constitutional law often occupy the same space, contribute to understandings of the same issues, and interact in mutually constitutive ways. Further, family law exerts influence over constitutional law, shaping the terrain on which constitutional adjudication occurs, structuring constitutional conflict, and orienting constitutional reasoning. Ultimately, this essay suggests that, with respect to divisive conflicts over the family, conventional understandings of the relationship between family law and constitutional law both underestimate the power of state family law developments and overestimate the power of federal courts applying federal constitutional law.
This essay captures the dialogic relationship between family law and constitutional law by drawing on my earlier work on the relationship between LGBT legal mobilization and the resolution of claims to marital and parental recognition. Contestation in family law over the meaning of marriage and parenthood has shaped understandings of these institutions for purposes of constitutional doctrine, and constitutional doctrine has in turn shaped family law disputes over the contours of marital and parental recognition.
Keywords: family, family law, constitutional law, marriage, parentage, parenthood, parental recognition, nonmarriage, nonmarital recognition, domestic partnership
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