In upholding Proposition 8 one year after finding that same sex couples had a constitutional right to marry, the California Supreme Court followed a growing trend in family law to sever family rights from family status. The Court found that same sex couples were constitutionally entitled to the legal incidents of marriage, but not marriage itself. In the last 30 years, courts and legislatures have increasingly recognized a variety of different family forms by granting people in them the legal incidents of family relationship (Civil Unions and Domestic Partnerships for couples, Visitation and De Facto Parenthood for caretakers) without granting family status (marriage or parenthood per se). This article explores this trend by unpacking the constitutional treatment of family relationship. It argues that when state and federal constitutions recognize a right to family status (marriage and parenthood per se) they are honoring an expressive right to a label that everyone understands. Because what gives that expressive right its content is the social understanding of that label, however, this expressive right is cabined by the social meaning of marriage or parenthood. This article also suggests that states may be compelled to recognize family relationships even in the absence of granting them status, however. It argues that the rights and obligations of both marriage and parenthood, particularly in their tendency to treat two as one for legal purposes, provide critical sources of identity and autonomy for family members. The current trend to disaggregate family rights from family status suggests that legal actors may feel more compelled to honor the constitutive benefits that flow from legal connection than the expressive benefits that flow from family status. The article concludes that the trend to disaggregate family rights from status may actually undermine the constitutional protection of relationship by diminishing the expressive value of family labels, de-emphasizing the role of family obligation, and necessitating judicial intrusion into family decisions that have traditionally been afforded privacy. Courts and legislatures may be attracted to the idea of severing rights from status because it seems like a cautious way to protect the social meaning of marriage and parenthood and still afford family rights to those who deserve them, but ultimately the trend to disaggregate may do more to undermine the traditional legal treatment of family relationship than honor it.
Katharine K. Baker,
Marriage and Parenthood as Status and Rights: The Growing, Problematic and Possibly Constitutional Trend to Disaggregate Family Status from Family Rights,
Ohio St. L.J.
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/56