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introduction familyvalues Forms of human relations that are recognizable as families have been around since the beginning of recorded history. Partly because of this longevity and partly because the functions that families have served can be important, we’ve come to think of “the family” as being basic to human experience, basic even to human flourishing or happiness. Indeed, it is. In fact, it would be difficult to overestimate its significance. But even if it is significant in these ways, is it also, as some have claimed, an institution that is significant for purposes of constitutional structure or constitutional law? By the end of the 1920s, the Supreme Court of the United States had held more than once that family was in fact an institution possessing a constitutional status and that certain relations within that institution were constitutionally protected. This book explores how this came to pass, what it has meant for family to be constitutionally significant, and what the implications of that significance have been (and continue to be) for the polity and for families. the MoveMent for faMily valUeS In the latter half of the twentieth century, the rhetoric of “family values” became a staple of American civic life. Often the rhetoric has suggested a political program, but in truth it’s impossible to talk sensibly about a single program, as the specific concerns that animate the invocation of family values are diverse, reflecting the various aims of a large and disparate collection of groups and scholars. Depending on the source, therefore, one might hear about the nuclear family, sexuality, abortion , pornography, adultery, the roles of women, the welfare of children, domestic economy, familial control of education, the law and practice of divorce, and, more recently, same-sex marriage. These concerns are relevant to this book. 2 introdUCtion I’m interested in two general aspects of the notion of family values as groups and scholars have deployed it. The first is a pair of assumptions about the relation between family and constitutional order: that the forms and functions of family influence the legal, political, moral, and economic constitution of a society, and that these aspects of the constitution influence, for better or worse, the forms and functions of family. My second interest is a story that some proponents of family values have told about family, constitutional maintenance, and constitutional change—a story that implicates the role of law in managing the relationship between family and constitutional order. The account is essentially this: across the ages, a particular familial form has held—monogamous, heterosexual, permanent, and reproductive. This family is natural and has helped establish and maintain a kind of civilization, including our own. Law, economy, and culture therefore have historically recognized its fundamentality. But beginning in the 1960s, law altered the landscape on which this family had traditionally flourished. As Mary Ann Glendon has put it, “Legal norms which had remained relatively undisturbed for centuries were discarded or radically altered in the areas of marriage, divorce, family support obligations, inheritance, the relation of parent and child, and the status of children born outside marriage.”1 According to some who have criticized these changes, one culprit has been the Supreme Court of the United States, which, since the early twentieth century, has gradually made certain aspects of familial relations matters of constitutional law. In effect, the Court has converted family into a quasi-constitutional institution . It has done so primarily, though not exclusively, through the constitutional doctrine of privacy. Ironically, from the critics’ perspective, this jurisprudence of family—this constitutionalization of the law of family—has weakened the institution of the family by challenging the preconditions for sustaining its traditional forms and functions. And this alteration, in turn, now threatens to unravel the social fabric of the constitutional order. The concerns of almost all proponents of family values are animated by religious values. In saying this, I am not suggesting that religion in this context is unidimensional. There is a multitude of religious views on the place of family in the world. But a constellation of religious adherents—including orthodox Roman Catholics, conservative Protestants, and traditionalist Jews—has formed around a commitment to a specific vision of family values. Likewise, I’m not implying that the positions are illegitimate by virtue of their connection to religion. John Rawls and other contemporary liberals have been misguided in their philosophical quest to wall off public forums from religious views. Religious perspectives can’t easily be eliminated, whether by force or law...

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