From Family to Individual and Back Again

Loving v. Virginia has been thought of in many ways: as an important step toward full equality for African-Americans, as, more generally, a statement about the suspect classification of race, as a declaration about the fundamental nature of marriage, and as a critical addition to the construction of the right to privacy (as well as, of course, exemplified in the validation of the Lovings\u27 own marriage). In my contribution to the first Loving symposium, I wrote about the increasing tendency of the Supreme Court, following the 1967 decision, to treat the rights of intimacy as belonging to the individual adults involved.8 I concluded that the Court increasingly vindicate[d] the choices and inclination of adults, viewing marriage as depending upon continuing emotional fulfillment and neglecting the permanence, commitment, and unconditional nurturing of marriage and parenthood. Recently, however, I have been wondering whether the Court might not have reached the end of this trajectory and returned to celebrating the intimate relationships as opposed to the rights, particularly reinforcing relationships between parent and child. Many of my musings, though reached independently, echo those expressed in Carl Schneider\u27s Religion and Child Custody, and my worries about them in Mary Ann Glendon\u27s Rights Talk. Nonetheless, I do realize that the two emphases may be operating simultaneously, and when the interests of parent and child collide, a majority of the Court has recently concluded that the child\u27s interests may prevail. If I am right that Loving begins a cycle of sorts, a profitable way of thinking about the case might then be (to paraphrase the book of Genesis) that Loving begat Michael H., Michael H. begat Troxel, and so forth. Furthermore, in the same way that Meyer and Pierce seem rather strange ancestors to Roe v. Wade, Loving (also cited in Roe), clearly a case about marriage, seems a strange predecessor for cases dealing with children\u27s interests when they diverge from their parents\u27 interests. Nevertheless, because the constitutional right of privacy expanded in Loving is closely connected with the prudential family law notion of autonomy, the connection between such cases makes sense. With these musings in mind, I would like to consider five recent Supreme Court cases involving relationships, and in particular, the growing acceptance of Justice Stevens\u27s position that children\u27s interests, and especially their relationships with their parents, ought to be considered. I begin with Michael H. v. Gerald D., a post-Loving case about parenting where a marriage relationship was deemed highly important, but the child\u27s interests were considered only as a subset of her parents\u27 interests. This is the case with which my original Loving piece ended