The Blue Family Constitution

Journal of the American Academy of Matrimonial Lawyers, Forthcoming

Virginia Public Law and Legal Theory Research Paper No. 2022-44

22 Pages Posted: 13 Jul 2022

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

June Carbone

University of Minnesota - Twin Cities - School of Law

Date Written: July 13, 2022

Abstract

At the time Roe v. Wade was decided in 1973, it joined a series of decisions about contraception, the “legitimacy” of nonmarital children, unmarried partners’ parental status, and spousal equality that laid the foundation for a new form of family organization, geared to meet the needs of the information age. This new model, which we have labelled “blue,” rewards investment in children’s future earning capacity, and manages relationships based on reciprocity and trust rather than gendered and hierarchical family roles.

A half century later, it is clear that the new family model defines the terms of entry to the upper middle class. The ages of marriage and childbearing have risen substantially, especially for college graduates. Income inequality has grown substantially, however, and family formation aggravates the inequality, as the well-off increasingly marry each other, but the benefits of the new family model are beyond the reach of a large part of the population. The Supreme Court has retreated from its tentative support for the conditions necessary for this new “blue family system.” In so retreating, the Supreme Court reinforces the barriers that block access for a large part of the population to a stable family life. The decision in Dobbs, in attempting to freeze the Constitution in the nineteenth (if not the eighteenth century,) sets back judicial support for the new family model and threatens to increase the gulf between the thriving families of the upper middle class and everyone else.

This article compares the decisions of the early sixties and seventies with more recent Supreme Court decision in terms of their practical impact on family life. The first section sets out how the Supreme Court has approached the blue family model. The second section explores how, even as the Court gradually accepted the new system, it refused to protect the pathways into the system, reifying a dual system of family formation based on class. The final section discusses the impact of Dobbs, showing how it entrenches red family opposition and class-based family lives.

Keywords: family law, gender, public benefits, poverty law, reproductive rights, feminist legal theory

Suggested Citation

Cahn, Naomi R. and Carbone, June, The Blue Family Constitution (July 13, 2022). Journal of the American Academy of Matrimonial Lawyers, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2022-44, Available at SSRN: https://ssrn.com/abstract=4161894

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

June Carbone

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

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