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Citation: 67 Geo. Wash. L. Rev. 1225 1998-1999

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Models of Family Privacy
Naomi R. Cahn*

Introduction

Privacy within family law has two primary, and interrelated, meanings.
First, privacy can mean privatization, the use of internal rather than external
norms, and thus, the legal ability to control the rights and responsibilities that
attach to any familial relationship.' Second, privacy can denote a protected
sphere, the right to engage in any activities that one chooses within that
sphere.2 As this symposium indicates, there are, of course, many other mean-
ings of privacy. Nonetheless, these two different meanings of privacy have
become critical to an understanding of much of contemporary family law and
rhetoric.
In her paper for this Symposium, and in her past work, Professor
Fineman has raised interesting and provocative issues, and has tried to force
us to shift paradigms with respect to both meanings of privacy. 3 Professor
Fineman has brought us to one of the central dilemmas in conceptualizing
privacy for the family: "attempting to reconcile the need of the family for
privacy with the obligation of the state to protect its citizens." 4 She seeks
public support for both privacy and autonomy.
Professor Fineman asserts that the task of modernizing privacy has two
separate components. First, she says it involves "a shift in our understanding
as to what privacy attaches-privileging family function and not family
form."5 Second, she says it involves:
development of the idea of family privacy as an entity-based entitle-
ment to self-government or autonomy... Privacy would not be a
right to separation, secrecy, or seclusion, but the right to autonomy

* Professor of Law, The George Washington University Law School. These comments
were made as part of The George Washington Law Review's Symposium, Privacy and the Law.
Thanks to my co-panelists, Martha Fmeman and Barbara Woodhouse, and to our moderator,
Catherine Ross; to Bob Thttle, Sally Gordon, and Jana Singer; and to Patrisha Smith and
Michelle Wu for research assistance.
1 See Naomi R. Cahn, The Moral Complexities of Family Law, 50 STAN. L. REv. 225,238
n.60 (1997) (reviewing NAacy E. DowD, IN DEFENSE OF SINoLE PARENT FA.masms (1997) and
BARBARA DAFoE WirEHEAD, THE DIVORCE CULTURE (1997)) [hereinafter Cahn, Moral
Complexities].
2 For a strong defense of this latter type of privacy, see Jed Rubenfeld, The Right of
Privacy, 102 HARv. L. REv. 737, 783-87 (1989).
3 See Martha Albertson Fmeman, What Place for Family Privacy?, 67 GEo. WASH. L.
REv. 1207 (1999) [hereinafter Fmeman, What Placefor Family Privacy?]. She seeks to protect
decisions by the individual caretaker, including those relating not just to how to raise her chil-
dren, but also with whom to raise them. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE
SEXUAL FAMILY, AND OTHER TwENTmTri CENTURY TRAGEDiES 226-36 (1995) [hereinafter
Fn, mAN,, Tim NEUTERED MOTHER].
4 Fmeman, What Placefor Family Privacy?, supra note 3, at 1217.
5 Id. at 1211.

June/August 1999 Vol. 67 No. 516

1225
1226 The George Washington Law Review [Vol 67:1225

or self-determination for the family even6though it is firmly located


within a supportive and reciprocal state.
Although she wants to continue to use the concept of privacy, she wants
to redefine the entity that receives privacy protection to be caretaker and
7
dependent-centered, rather than individually or heterosexually-centered.
Professor Fineman also wants privacy to become more positive, to pro-
tect decision-making by the family unit even as that unit receives state sup-
port; she wants subsidy without "intervention" 8 in the subsidized
relationship. This reconception of privacy as affirmative corresponds to con-
ventional understandings of privacy and decisional privacy, 9 or what have
been famously termed "negative" and "positive" liberties.10
Our Constitution has been called "a charter of negative liberties."" The
Due Process Clause thus protects against government overreaching and un-
due state interference with fundamental personal decisions and beliefs. It
has not, however, been generally interpreted to require that the government
2
act affirmatively.'
This new privacy proposed by Professor Fineman will be capable of pro-
viding support for the caretaking unit without state control over that unit-it
will decouple state supervision from state support. She wants to require the

6 Id.
7 See id. at 1221. The problems with a heterosexually-centered definition of privacy have
historically involved the exploitation of women as well as the negation of gay relationships. Al-
ternatively, an individually-centered model overlooks both the caretaking work and the bonds
that develop within a family or nurturing relationship. See generally EVA FEDER Kr1rAY,
LoVE's LABOR: ESSAYS ON WOMEN, EQUALITY, AND DEPENDENCY (1999).
8 To some extent, then, it is incoherent to discuss state intervention as the opposite of
autonomy. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal
Reforms, 96 HARV. L. REV.1497, 1504-07 (1983); Frances E. Olsen, The Myth of State Interven-
tion in the Family, 18 U. MICH. J.L. REFORM 835, 842-44 (1985); see also Wendy Brown, The
Pleasuresand Freedoms of Silence, 3 U. CQi. L. SCH. ROUNDTABLE 185, 186 (1996) (discussing
how attempts at claiming autonomy by marginalized or disenfranchised societal groups have
permitted the dominant society to colonize them); Ruth Gavison, Feminism and the PublicPri-
vate Distinction,45 STAN. L. REv. 1, 15-16 (1992) (exploring the relationship between private
entities and the public norms and laws which create them).
9 See Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections
on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & Pun. PoL'Y 419, 440 (1995)
(describing "'conventional' privacy ...in the familiar senses of physical seclusion, solitude, ano-
nymity, secrecy, and confidentiality" and "'decisional privacy' . . . as the liberty, freedom or
autonomy to make choices about one's own life, minimally constrained by unwanted govern-
ment or other outside interference").
10 See Isaiah Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 122-34
(1969).
11 See DeShaney v. Winnebago County Dep't of Soc. Servs., 812 F.2d 298, 301 (7th Cir.
1987), affd, 489 U.S. 189 (1989); Susan Bandes, The Negative Constitution: A Critique,88 MICH.
L. REv. 2271, 2273-78 (1990); see also Martha Minow, Words and the Door to the Land of
Change: Law, Language, and Family Violence, 43 VAND.L. REv. 1665, 1666-71 (1990) (discuss-
ing the treatment of the state's conduct in DeShaney by the majority and dissent as inaction and
action respectively). Cf. ROBIN WEST, PROORESSIVE CONSTrTUTIONALsM: RECONSTRUCTFING
THE FOURTEENTH AMENDMENT 33 (1994) (arguing that the Fourteenth Amendment provides a
positive right or liberty to protection from private violence). Thanks to Jana Singer for her for-
mulation of ideas concerning the Constitution and its vision(s) of liberty.
12 See Cass R. Sunstein, Lochner's Legacy, 87 CoLUM. L. REv. 873, 888-89 (1987).
1999] Models of Family Privacy 1227

government to act affirmatively in providing caretaking units with the neces-


sary resources to allow them to act without undue state interference into
their lives. 13 In other words, she seeks both negative and positive liberties for
the newly-defined family: protection against interference and affirmative ac-
tions in providing support.
I want to structure my comments on Professor Fineman's proposal by
discussing three interrelated issues that concern privacy and family law. First,
I examine the "privatization" of family law, distinguishing it from other
meanings of family privacy. 14 Second, I explore what Professor Fineman
means by "family privacy," by comparing and contrasting what she wants
with how family privacy has traditionally been conceived. Third, I discuss the
need for privacy together with the limits of that concept, because by knowing
what the limits are, we help to determine its scope. My goals are to separate
out the various models of privacy within family law, and then to discuss why
Professor Fineman's proposal is significant. This paper attempts to clarify the
potentially varying meanings of "family privacy," and provides some justifica-
tion for the continuing validity of privacy with respect to protecting a sphere
15
of autonomous familial activity.

I. Family Privatization
Within family law, many scholars have noted a trend toward increased
privatization and autonomy. Indeed, a great deal of controversy has arisen
over what many believe is an inevitable transformation. Individuals have ex-
ercised increasingly broader authority to define their own familial relation-
ships, illustrating a move toward more contracting in the private life of the
family. 16 Marriage has always been a quasi-public, quasi-private relationship,
labeled a "civil contract" by the Supreme Court in 1877.17 Within political
philosophy, marriage and the family have been seen as protecting a sphere
outside of state control.' 8

13 See Fineman, What Place for Family Privacy?,supra note 3, at 1221.


14 See Jana Singer, The Privatizationof Family Law, 1992 Wis L. Rev. 1443, 1444; see also
Carl E. Schneider, Moral Discourse and the Transformationof American Family Law, 83 MicH.
L. REv. 1803, 1807-08 (1985) (arguing that the locus of moral decision-making has shifted away
from the law to the people affected by law).
15 Autonomy and family can conflict when an individual family member seeks to assert her
rights "against" or outside of the family. See Naomi Cahn & lana Singer, Adoption, Identity and
the Constitution: The Case for Opening Closed Records, 2 U. PA. CONST. L.J. (forthcoming
1999); Catherine Ross, Toward an Emerging Right of Minors to Receive Information, 2 U. PA. J.
CON ST. L. (forthcoming 1999); infra notes 143-145.
16 Dean Lee Teitelbaum asserts that "the very form of discourse about family law has
changed.... [One of the two major developments] is a change in the location of responsibility
from the law itself to the individuals whom law once regulated." Lee E. Teitelbaum, The Last
Decade(s) of American Family Law, 46 J. LEGAL EDUC. 546, 547 (1996). See generally Lee E.
Teitelbaum, The Family as a System: A PreliminarySketch, 1996 UTAH L. Rnv. 537 (critiquing
the move towards privatization and suggesting a reconceptualization of the family as an ongoing
and contextualized relationship within the greater society).
17 See Meister v. Moore, 96 U.S. 76,78 (1877); see also Lynn D. Wardle, Loving v. Virginia
and the Constitutional Right to Marry, 1790-1990, 41 How. LJ.289, 292 (1998) (discussing the
Meister decision).
18 In mainstream religious theory in the late seventeenth century, "[s]o important was this
1228 The George Washington Law Review [Vol 67:1225

There are many areas in which private contracting has replaced more
public ordering, particularly with respect to the intimate relationships be-
tween adults. Most courts now enforce prenuptial agreements, and separa-
tion agreements are a routine aspect of any divorce proceeding. 19 Courts
apply many of the same standards to these familial agreements as they apply
to other contracts outside of the family.20 Even cohabitation contracts, which
were once virtually unenforceable, are now generally enforced.2 ' Contempo-
rary courts use well-known concepts of contract doctrine, such as considera-
tion, promissory estoppel, public policy, and unconscionability in order to
determine the enforceability of these familial agreements32 Families seem
happy with the result. Approximately ninety-five percent of divorces are re-
solved through settlement agreements; indeed, in one study of divorcing fam-
ilies with children, the researchers found that seventy percent of the parents
had "negligible" or "mild" conflict about custody and visitation
arrangements?3
The movement towards freedom of contract represents the shift in fam-
ily law towards recognition of the rights of individuals who choose to form
families, rather than the rights that flow from family status. Many commen-
tators are beginning to see marriage "as a 'personal freedom' rather than a
social institution binding its members in complex ways." 24 Contract law ap-
pears to be a natural expression of this more individualistic focus, in which

family society, established by nature, that it enjoyed to some extent a sovereignty over which the
state had no control." RicHARD B. SCHLATrER, THE SocIAL IDEAS OF RELIGIOUS LEADERS
1660-1688, at 7 (Octagon Books 1971) (1940); see also id. at v (explaining that the clergy served
as intellectual leaders).
19 See Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital
Agreements and How We Think About Marriage,40 WM. & MARY L. REv. 145, 151, 166 (1998).
20 Many people have, with varying levels of approval, documented the increasing priva-
tization of family law, and the corresponding power of individuals to enter into contracts with
respect to issues that were formerly a matter solely of domestic relations law. See MILTON C.
REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY 35-42 (1993); Marjorie McGuire
Schultz, ContractualOrdering of Marriage: A New Model for State Policy, 70 CAL. L. REv. 204,
288-91 (1982); Singer, supra note 1, at 1456-65. For other perspectives, see also MARY ANN
GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED
STATES AND WESTERN EUROPE 137-40 (1989) (comparing different legal systems' responses to
this phenomenon); Cahn, Moral Complexities, supra note 1, at 245 (discussing the moral implica-
tions of a contractual trend); Janet L. Dolgin, The Familyin Transitionfrom Griswold and Eisen-
stadt and Beyond, 82 GEO. L.J. 1519 (1994) [hereinafter Dolgin, Family in Transition] (exploring
the relationship between the development of the right to privacy and the privatization of family
law); Schneider, supra note 1, at 1830-33 (discussing the moral implications of a contractual
trend).
21 See Marvin v. Marvin, 557 P.2d 106, 116, 122 (Cal. 1976); Watts v. Watts, 405 N.W.2d
303, 313-15 (Wis. 1987). But see Hewitt v. Hewitt, 394 N.E.2d 1204, 1211 (Ill. 1979) (refusing to
enforce implied cohabitation contract on public policy grounds).
22 See Bix, supra note 19, at 153 n.28.
23 See Robert H. Mnookin et al., Private Ordering Revisited: What Custodial Arrange-
ments are Parents Negotiating?, in DrvoRcE REFORM AT THE CROSSROADS 37, 67 (Stephen D.
Sugarman & Herma Hill Kay eds., 1990).
24 See Barbara Bennett Woodhouse, Towards a Revitalization of Family Law, 69 Tex. L.
Rev. 245,277 (1990) (reviewing MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW:
STATE, LAW AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1989)).
1999] Models of Family Privacy 1229

personal gratification becomes a primary consideration and individuals want


the freedom to control their intimate relationships.
Although there is a trend towards recognizing and enforcing contracts in
intimate relationships, and towards divorce upon one party's demand, there
is also a trend towards less privatization within the family. The demise of
common law marriage statutes over the last century represents a decrease in
the authority of couples to decide for themselves when they can assume the
privileges associated with marriage. 25 They can no longer enter into marriage
by contract without state involvement. Similarly, the mandatory nature of
child support laws restricts individual autonomy.26 There are social conse-
quences to having children; child support levels prevent noncustodial parents
from not taking responsibility for their offspring. And, although parties have
more autonomy through prenuptial and separation agreements, these agree-
ments occur against a background of publicly defined default rules. For ex-
ample, "equitable" distribution laws make separate property states look
more like community property states, changing the accumulation of individu-
ally titled property into jointly distributed property. A series of default rules,
such as the spouse's elective share in a decedent's estate, express a moral
view of the family as a joint "enterprise" and certainly impinge on both pri-
vacy and autonomy. Although there is an increasing emphasis on autonomy
in some areas of family law, there are conflicting trends towards less auton-
omy in other family law contexts. Thus, privatization is only a partial de-
scription of current changes in family law. There is more autonomy to decide
on the meaning of family, but that autonomy must be exercised within more
clearly defined constraints.

II. Family Privacy and ProfessorFineman

In her paper, Professor Fineman actually focuses on a different aspect of


privacy and family law, one which provides for less direct state intervention
within individuals' intimate relationships. She continues to see value in this
concept of privacy as long as privacy is based on family form and an affirma-
tive concept of facilitating that privacy. 27 Professor Fineman's belief in pri-
vacy is set against a backdrop of changes in the privacy of the family; for

25 See Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Mar-
riage, 75 OR. L. RFv. 709, 736-37, 743-44 (1996). Ariela Dubler argues that judges in the late
nineteenth century used the doctrine of common law marriage to privatize dependence. See
Ariela R. Dubler, Note, Governing Through Contract: Common Law Marriagein the Nineteenth
Century, 107 YALE Li. 1885, 1886-87 (1998).
26 Cf. Jo-n' STUART Mii, ON LmBERTY 175-76 (Gertrude Himmelfarb ed., Penguin Books
1974) (1859) (observing the reluctance of the law to interfere with a parent's control over a child,
but arguing that perhaps liberty should be withheld in order to compel parents to educate their
children); Jane C. Murphy, Rules, Responsibility and Commitment to Children: The New Lan-
guage of Morality in Family Law, 61 U. Prrr. L. REv. (forthcoming 1999).
27 See Fmeman, What Place for Family Privacy?, supra note 3, at 1221.
1230 The George Washington Law Review [Vol 67:1225

example, domestic violence laws sanction state interference in the family, 28


29
and welfare laws intrude rudely into recipients' "private" lives.
Existing privacy law has developed from many sources, but in this com-
mentary, I will focus only on the familial privacy recognized by the Supreme
Court.30 Professor Fineman states that she is concerned with "privacy in its
common law sense," 31 and that state law cases, rather than federal law cases,
actually articulate "an ethic or ideology of family privacy." 32 Nonetheless, as
Professor Fineman also points out, the constitutionally-based notions of fam-
ily privacy can still provide some useful principles on the parameters and
meaning of privacy.
Based on Supreme Court privacy jurisprudence, there are three different
aspects of family privacy that are at issue in her paper: 1) marital relation-
ship;33 2) parent-child relationship; and 3) sexual decision-making.34 I will
briefly review these various forms of privacy.

A. Marital Relationship Privacy

The constitutional development of marital relationship privacy involves


two distinct elements: the right to marry and the right to sexual privacy for

28 See Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the
Roles of Prosecutors,Judges, and the Court System, 11 YALE J.L. & FEMINISM 3, 11-13 (1999);
Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90
MICH. L. REv. 1, 74-75 (1991); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative
and Privacy, 105 YALE L.J. 2117, 2118, 2190-2206 (1996) [hereinafter Siegel, "The Rule of
Love"]. On the other hand, there remain vestiges of this concept of privacy in the domestic
violence context. See Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REv. 973,
983-85 (1991) (discussing how concepts of noninterference have allowed domestic violence);
Siegel, supra.
29 See infra notes 116-126 and accompanying text (discussing Wyman v. James, 400 U.S.
309 (1971)); see also Catherine Ross & Naomi Cahn, Subsidy for Caretaking: Lessons from
Foster Care, 8 AM. U. J. GENDER SOC. POLY & L. (forthcoming 1999). Of course, the receipt of
public welfare has always been intertwined with the loss of both privacy and autonomy. See
MArrEw A. CRENSON, BUILDING THE INVISILE ORPHANAGE: A PREHISTORY OF THE AMERI-
CAN WELFARE SYSTEM 29 (1998); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS:
THE POLITICAL ORIGINS OF SOCIAL POLICY INTHE UNrrED STATES 466-79 (1992).
30 Family law has traditionally been an area of state prerogative. See Ankenbrandt v.
Richards, 504 U.S. 689, 694-701 (1992); Naomi R. Cahn, Family Law, Federalism, and the Federal
Courts,79 IowA L. REv. 1073, 1081-87 (1994); Anne C. Dailey, Federalismand Families, 143 U.
PENN. L. REv. 1787, 1790 (1995); Judith Resnik, "Naturally" Without Gender: Women, Jurisdic-
tion, and the FederalCourts, 66 N.Y.U. L. REv. 1682, 1739-50 (1991). Nonetheless, the Supreme
Court has established the parameters of constitutional privacy. See, e.g., Washington v. Gluck-
sberg, 521 U.S. 702, 719-20 (1997); Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986).
31 F'meman, What Place For Family Privacy?, supra note 3, at 1212.
32 Id. at 1214.
33 This includes both the right to marry and the privacy that attaches to an existing marital
relationship. See id. at 1213.
34 The form of privacy that involves sexual decision-making overlaps with the other two
forms of privacy because Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965), talked about the
private decision of married couples on whether to use contraceptives, and Turner v. Safley, 482
U.S. 78, 95-99 (1987), Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978), and Loving v. Virginia,
388 U.S. 1, 12 (1967), talked about an individual's right to marry whom she chooses.
1999] Models of Family Privacy

marital decisionmaking.3 5 As discussed by Professor Fineman, state law has


6
provided much of the protection for marital autonomy and privacy.3
The first form of marital privacy protects the very decision of whom to
marry. Although the Supreme Court frequently discussed the right to marry,
it was only in the 1967 Loving v. Virginia decision that the Court addressed
the nature of the right itself.3 7 In Loving, Turner, and Zablocki, the Court
established the quasi-fundamental nature of the right (for heterosexuals) to
marry; this right is subject to a standard of scrutiny that falls somewhat short
of the strict scrutiny accorded fundamental rights.38 This form of marital pri-
vacy has become increasingly controversial in the context of same-sex mar-
riage, where advocates argue that individuals should have the freedom to
choose their partners. 39 The right to marry has received enormous scholarly
and popular attention in this context. For purposes of Professor Fineman's
discussion of privacy, however, the second type of marital privacy, that which
surrounds relationships, appears to be more important.
The second form of marital privacy involves the right to relational pri-
vacy, and is most frequently addressed in the context of sexual decisionmak-
ing. Perhaps the first reference in Supreme Court jurisprudence to the
privacy of the marital relation occurs in the 1885 case Cannon v. United
States/ Angus Cannon, a prominent Mormon who served as a county prose-

35 A third type of marital relationship privacy involves the spousal testimonial privilege.
See MILToN C. REGAN, JR., ALoNE ToGETHER: LAW AND THE MEANINGS OF MARRIAGE 89-135
(1999).
36 Professor Fimeman uses McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1995), to show the
extremely private nature of intrafamilial decisionmaking. See Fimeman, What Place for Family
Privacy?, supra note 3, at 1214-15.
37 See Loving, 388 U.S. at 12. For further discussion of the earlier cases, see Jerome A.
Barron, The Constitutionalizationof American Family Law: The Case of the Right to Marry, in
CROss-CuRRNTs: FAMILY LAW IN ENGLAND AND THE UNITED STATES SINCE 1945 (John
Gekelaar & Sanford Tate eds., forthcoming 2000); Wardle, supra note 17, at 290-302.
38 See Loving, 388 U.S. at 12; Zablocki, 434 U.S. at 386-87; Turner, 482 U.S at 94-99; see
also Wardle, supra note 17, at 341-42 (noting the fundamental nature of marriage and discussing
the applicable level of scrutiny).
39 See, e.g., Baehr v. Lewin, 852 P.2d 44, 60, 67-68 (Haw. 1993); WILLIAM M. ESKRIDGE,
JR., THE CASE FOR SAME-SEx MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED CoMMrIMENT
132 (1996); EJ. GRAFF, WHAT IS MARRIAGE FOR? (1999); William M. Hohengarten, Note,
Same-Sex Marriage and the Right of Privacy, 103 YALE L.J. 1495, 1496 (1994).
40 116 U.S. 55 (1885), vacated on jurisdictionalgrounds, 118 U.S. 355 (1886). Prior to 1900,
only a limited number of cases mentioned privacy and none was directly concerned with marital
privacy. See ICC v. Brimson, 154 U.S. 447, 478-79 (1894) (discussing the importance of privacy
regarding governmental invasions into one's life); In re The Strathairly, 124 U.S. 558, 577 (1888)
(advocating that each passenger on a vessel is entitled to space and privacy); Boyd v. United
States, 116 U.S. 616, 630 (1886) (discussing the importance of privacy regarding governmental
seizures of incriminating personal property); Deery v. Cray, 72 U.S. (5 Wall.) 795, 807 (1866)
(referring to a state law that provided for the examination of married women); Goesele v.
Bimeler, 55 U.S. (14 How.) 589, 603 (1852) (referring to privacy in its explanation of how mem-
bers of a religious society lived in Europe); Veazie v. Williams, 49 U.S. (8 How.) 134, 156 (1850)
(discussing privacy in the offering of auction bids); see also Hill v. Tucker, 54 U.S. 458, 460 (1851)
(party's argument refutes the existence of privacy between administrators of an estate); Caldwell
v. Taggart, 29 U.S. 190, 194 (1830) (party's argument refers to whether privacy existed in the
execution of mortgages); Childress v. Emory, 21 U.S. 642, 650, 656 (1823) (party's argument
discusses privacy in the context of cases where a wager of law may or may not be allowed).
1232 The George Washington Law Review [Vol 67:1225

cuting attorney, 41 had been tried and convicted for "cohabitation" with more
than one woman, a misdemeanor resulting in a $300 fine and imprisonment
for six months. 42 In his defense, Mr. Cannon argued that although he lived in
the same house with Amanda Cannon and Clara Cannon prior to the enact-
ment of the applicable statute, and each woman was the mother of his chil-
dren, since passage of the legislation, he had not cohabited, in a sexual sense,
with Clara Cannon, and thus could not be guilty of cohabiting with two wo-
men. 43 He attempted to offer testimony, including that of Clara Cannon her-
self, as to whether they had cohabited subsequent to the enactment of the
legislation:
The only controversy arose when [Cannon's lawyer] tried to ques-
tion the witnesses as to whether the defendant spent the night or
had sexual relations with each of the wives. United States Attorney
Dickson strenuously objected at each inquiry, and the trial court
sustained the government by ruling that these matters were not rel-
evant to a charge of cohabitation.
...[H]ad the testimony been allowed, it would have estab-
lished that ... the defendant announced to his family that he...
would withdraw himself from physical relationships with each of his
wives. However, he intended to continue to support his wives and
to take his meals with them.44
The judge offered the following instruction to the jury, to which the de-
fendant objected:
If you believe from the evidence ... beyond a reasonable doubt,
that the defendant lived in the same house with Amanda Cannon
and Clara C. Cannon, the women named in the indictment... and
that he held them out to the world by his language or his conduct, or
by both, as his wives, you should find him guilty. 45
Accordingly, the jury found him guilty, and the Territory of Utah's Supreme
46
Court upheld the conviction.

The concept of the privacy of a man's home was present as early as 1604, and was com-
mented on by Blackstone in the mid-eighteenth century. See Wilson v. Layne, 119 S. Ct. 1692,
1697 (1999) (reaffirming Fourth Amendment protection against unreasonable search and seizure
of a home). Interestingly, the Fourth Amendment has not typically served as the primary source
for marital or familial privacy, perhaps because the Amendment has typically been construed as
protecting space or individuals, and family privacy concerns a relationship. See infra notes 116-
126 and accompanying text (discussing Wyman v. James).
41 There is a short biography of Mr. Cannon in Ken Driggs, The ProsecutionBegins: De-
fining Cohabitationin 1885, in DIALOGUE: A JOURNAL OF MORMON THOUGHT, Spring 1988, at
109, 113-14.
42 See Cannon, 116 U.S. at 57. Although Mr. Cannon was charged with cohabitating with
two women, he actually had four wives at the time of his prosecution. After his prosecution, he
married two additional women. See Driggs, supra note 41, at 114; Kenneth David Driggs, The
Mormon Church-State Confrontation in Nineteenth-Century America, 30 J. CmrRc- & STATE
273, 282 (1988).
43 See Cannon, 116 U.S. at 69-71.
44 Driggs, supra note 41, at 116.
45 Cannon, 116 U.S. at 66.
46 See United States v. Cannon, 7 P. 369, 380 (Utah 1885).
1999] Models of Family Privacy 1233

The validity of the criminal prosecution depended on the meaning of


"cohabitation." The Utah court rejected the narrow use of the term as a
proxy for sexual intercourse, and held that it covered a broader range of
activities. 47 Subsequently, the United States Supreme Court upheld the ex-
clusion of the sexual relationship evidence, explaining:
Nor, on the other hand, does the statute pry into the intimacies of
the marriagerelation. But it seeks not only to punish bigamy and
polygamy when direct proof of the existence of those relations can
be made, but to prevent a man from flaunting in the face of the
world the ostentation and opportunities of a bigamous household,
with all the outward appearances of the continuance of the same
relations which existed before the act was passed- and without refer-
ence to what may occur in the privacy of those relations.48
Through sleight of hand, the Supreme Court protected the privacy of the
marital relationship, but found the defendant liable for the public appearance
of living with two women. Indeed, so protective was the Court of marital
intimacy that it refused to allow any testimony concerning the private sexual
relationship among the Cannons, even when the Cannons themselves offered
the testimony and were willing to breach the protections accorded to their
49
relationship.
The Court provided no substantive support for its protection of marital
privacy. The reference to marital privacy is somewhat off-hand, as if it were
such a common concept that it needed no clarification, even though it does
not appear in the Court's other bigamy cases from that time period.50
The concept of marital privacy, however, was important in other nine-
teenth-century courts. Marital privacy was repeatedly used as a justification
for failing to prosecute spousal violence. 51 Rather than sustaining the eight-
eenth-century notion of marital unity, nineteenth-century courts began to use
marital privacy as the theory for protecting patriarchal privilege in the fam-
ily.52 By contrast, divorce courts often inquired into minute details of mar-

47 See id. at 378.


48 See Cannon, 116 U.S. at 72 (emphasis added). The Court here echoes its earlier deci-
sion, Murphy v. Ramsey, 114 U.S. 15 (1885), in which it declared that a man "might in fact
abstain from actual cohabitation with all, and be still as much as ever a bigamist or a polyga-
mist.... Cohabitation is but one of the many incidents to the marriage relation. It is not essen-
tial to it." Murphy, 114 U.S. at 42. For detailed discussion of mid-nineteenth century opposition
to Morman polygamy, see generally Sarah Barringer Gordon, "Our National Hearthstone":
Anti-Polygamy Fiction and the Sentimental Campaign Against Moral Diversity in Antebellum
America, 8 YALE J.L. & HuA . 295 (1996).
49 See Cannon, 116 U.S. at 63, 71.
50 Neither of the two most famous nineteenth-century marriage cases, Reynolds v. United
States, 98 U.S. 145 (1878), nor Maynard v. Hill, 125 U.S. 190 (1888), discussed marital privacy or
any related subject. The only context in which privacy is mentioned is "private rights of prop-
erty" attaching to contracts. See Maynard, 125 U.S. at 210-11. But see Bassett v. United States,
137 U.S. 496, 505-07 (1890) (holding that a wife was not a competent witness against the crime of
adultery on the grounds of marital privacy).
51 See Siegel, "The Rule of Love," supra note 28, at 2151-58.
52 See id. at 2166-67. In colonial New England, husbands justified their right to chastise
their wives both by their patriarchal control of the family and the privacy of the family. See
DAVID H. FLAHERTY, PRIVACY IN COLONIAL NEW ENGLAND 58-59 (1972).
1234 The George Washington Law Review [Vol 67:1225

riages; once the marriage ended, courts felt free to examine the marital
53
relationship in surprising detail.
54
After Cannon, the Court frequently referred to "the right to marry"
but the privacy of the marital relationship did not reappear until its mention
in the dissents of Justices Douglas and Harlan in Poe v. Ullman.5 5 Both dis-
sents argued that a state law against the use of contraceptives invaded the
intimacy inherent in the marital relationship.5 6 Like the Cannon opinion, the
57
dissents sought to shield from inquiry the nature of the marital relationship.
It was only in 1965, in Griswold v. Connecticut,58 that the Court directly
addressed the concept of marital privacy, locating it in the penumbras of vari-
ous constitutional rights. 59 The Court also noted, however, that in addition to
its shadowy constitutional basis, marital privacy concerns "a right of privacy
older than the Bill of Rights. ' 60 As Professor Jed Rubenfeld points out, the
Court has consistently found "fundamental rights [that] exist unspecified in
the Constitution."' 61 Although the Constitution does not explicitly recognize
any forms of familial privacy, 62 to claim that the Constitution does not at
least suggest such rights would represent a constrained and strained view of
63
the Bill of Rights.

53 See Naomi Cahn, Finding Fault: Narratives of Divorce, 1825-1875, at 32 (unpublished


manuscript, on file with The George Washington Law Review).
54 See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The right to marry is included in
a long list of liberties guaranteed by the Fourteenth Amendment, including the right "generally
to enjoy those privileges long recognized at common law as esseritial to the orderly pursuit of
happiness by free men." Id. The derivation of the right to marry appears to be a common law
privilege. In Skinner v. Oklahoma, 316 U.S. 535 (1942), the Court observed, "Marriage and
procreation are fundamental to the very existence and survival of the race." Ld.at 541. See
generally Wardle, supranote 17 (observing that the right to marry receives constitutional protec-
tion because it is deeply rooted in our nation's history and traditions; it is a natural right; and it is
necessary for the ordering of society).
55 367 U.S. 497, 517, 521 (1961) (Douglas, J.,dissenting); id. at 552-53 (Harlan, J., dissent-
ing). Justice Stewart joined both dissents. See id. at 555 (Stewart, J., dissenting). For an exten-
sive discussion of the right to privacy, see DAVID J. GARROW, LBERTY AND SExuALrrv: THE
RIGHT TO PRIVACY AND THE MAKING OF Ron v. WADE (1994).
56 See Poe, 367 U.S. at 519-22 (Douglas, J., dissenting); id. at 539 (Harlan, J., dissenting).
57 Justice Harlan refused to find an "absolute" right of privacy, distinguishing the use of
contraceptives from "adultery, homosexuality, fornication and incest," which would be subject to
criminal prosecution, regardless of where they occurred. See id. at 552 (Douglas, J., dissenting);
see also William N. Eskridge, Jr., Privacy Jurisprudenceand the Apartheid of the Closet, 1946-
1961, 24 FLA. ST. U. L. Rnv. 703, 812 (1997).
58 381 U.S. 479 (1965)
59 See id. at 484-85; see also Dolgin, Family in Transition,supra note 20, at 1536 (discussing
Griswold in the context of changing social understandings of family).
60 Griswold, 381 U.S. at 486.
61 Rubenfeld, supra note 2, at 741-42. Professor Rubenfeld also argues that there is a
"conceptual vacuum" in defining the constitutional right of privacy because the cases focus on
whether there is a fundamental right to perform the proscribed act, rather than on what compli-
ance with the law would impose on an individual. See id. at 739.
62 The Fourth Amendment provides some basis for privacy of the home. See U.S. CONST.
amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated .... ).
63 See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Over-
ruled, 59 U. CHI. L. REv. 381, 383-84 (1992) (arguing that the distinction between enumerated
1999] Models of Family Privacy 1235

The constitutionally-developed right to marital privacy narrowly protects


the relationship between husband and wife from undue interference. It pre-
serves (creates?) a zone of privacy surrounding the marital relationship, spe-
cifically in the context of sexual decision-making, but also more generally in
its affirmation of other constitutional protections for the home and the fam-
ily.64 In preserving privacy for the traditional marital unit, the Court also
reinforces this privacy for the traditional familial unit of parents and children.

B. Parent-ChildRelationship Privacy

Turning to the second aspect of family privacy, there are several differ-
ent categories of parent-child privacy that courts have defined and pro-
tected. 65 First, there is a right to raise children, including the authority to
direct their religious and educational upbringing, which was established in
Yoder, Pierce, and Meyer.66 Second, there is, at least under certain circum-
stances, a right to establish a relationship with a child which is explicit in
cases involving unwed fathers, 67 and implicit in Moore v. City of East
68
Cleveland.

1. The Right to Raise Children

The parent-child relational privacy on which Professor Fineman focuses


in her paper concerns the right to raise a child in the manner that one
chooses. In Meyer, the Court asserted that the right of liberty "denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life.... to marry,
establish a home and bring up children. ''69 In Pierce, that right is similarly
described:
The fundamental theory of liberty upon which all governments in
this Union repose excludes any general power of the State to stand-
ardize its children .... The child is not the mere creature of the
State; those who nurture him and direct his destiny have the right,

and unenumerated rights is "bogus," based in part on principles established through the Bill of
Rights).
64 See JANET L. DOLGIN, DEFINING THE FAMILY: LAW, TECHNOLOGY, AND REPRODUC-
TION IN AN UNEASY AGE 41-42 (1997) [hereinafter DOLGIN, DEFINING THE FAMILY].
65 Schlatter points out that, among seventeenth-century clerics, "No one doubted the right
of father and mother to control the lives of children. By the law of nature, sons and daughters,
since they were the creation of their parents, were the property of their parents." SCHLATrER,
supra note 18, at 31.
66 Wisconsin v. Yoder, 406 U.S. 205,219 (1972) (allowing Amish parents to withdraw chil-
dren from school after eighth grade); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (pro-
tecting, in dicta, parents' rights to educate their children); Meyer v. Nebraska, 262 U.S. 390, 399,
403 (1923) (reversing conviction of teacher who had instructed child in foreign language in viola-
tion of Nebraska statute because Fourteenth Amendment protects teacher's liberty to provide
such instruction).
67 See Lehr v. Robertson, 463 U.S. 248, 262 (1983); Stanley v. Illinois, 405 U.S. 645, 658
(1972).
68 431 U.S. 494, 500-06 (1977) (plurality opinion).
69 Meyer, 262 U.S. at 399.
1236 The George Washington Law Review [Vol 67:1225

coupled with the high duty, to recognize and prepare him for addi-
70
tional obligations.
Finally, in Yoder, the Court observed that parental control over their
children's religious and educational upbringing has "a high place in our soci-
ety," and the state's interest in education must be balanced against "the tradi-
tional interest of parents with respect to the religious upbringing of their
7
children." 1
Parental autonomy is not absolute. Indeed, although courts defer to the
notion of parental control, the state can remove children from their parents'
care for abuse and neglect, require children to attend some form of school-
ing, and establish a minimum work age for children.7 2 Moreover, just as with
respect to other privacy rights, the constitutional reasoning that supports pa-
rental autonomy is somewhat sparse, even if it is grounded in pragmatic con-
cerns. In Meyer, the Court explained that it had never posited a definitive
explanation of the liberty guaranteed by the Fourteenth Amendment, but
that "[w]ithout doubt," it includes the right to raise children.7 3 For this prop-
osition the Court cited the Slaughter-House Cases,7 4 Yick Wo v. Hopkins,75
Allgeyer v. Louisiana,7 6 Adkins v. Children'sHospital,77 and others. 78
Similarly, in Pierce,the Court did not provide a comprehensive ground-
ing for this right, even as the Court recognized its strength:
Under the doctrine of Meyer v. Nebraska ... we think it entirely
plain that the Act ... unreasonably interferes with the liberty of
parents and guardians to direct the upbringing and education of
children under their control. As often heretofore pointed out,
rights guaranteed by the Constitution may not be abridged by legis-
lation which has no reasonable relation to some purpose within the
79
competency of the State.
And in Yoder, the final case of the trilogy, the Court noted: "This pri-
mary role of the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition. If not the first, perhaps

70 Pierce,268 U.S. at 535.


71 Yoder, 406 U.S. at 213-14.
72 See Catherine J. Ross, From Vulnerability to Voice: Appointing Counselfor Children in
Civil Litigation, 64 FORDHAm L. REv. 1571, 1586 (1996).
73 See Meyer, 262 U.S. at 399.
74 83 U.S. (16 Wall.) 36 (1873).
75 118 U.S. 356 (1886).
76 165 U.S. 578 (1897).
77 261 U.S. 525 (1923).
78 See Meyer, 262 U.S. at 399. Professor Barbara Woodhouse argues, "None of the cited
cases, however, provided any authority for a parental right to control the child, save by analogy
to other models of private ownership." Barbara Bennett Woodhouse, "Who Owns the Child?"
Meyer and Pierce and the Child as Property, 33 Wm. & MARY L. REv. 995, 1088 (1992) [herein-
after Woodhouse, "Who Owns the Child?"];see also William G. Ross, A JudicialJanus: Meyer v.
Nebraska in HistoricalPerspective, 57 U. CIN. L. REv. 125, 181-82 (1988) (arguing that none of
the cases "directly supported the Court's interpretation of the fourteenth amendment as embrac-
ing the freedom to... marry, establish a home, bring up children or worship since those cases
involved economic rights rather than personal rights").
79 Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (citation omitted).
1999] Models of Family Privacy 1237

the most significant statements of the Court in this area are found in Pierce
"80

Although I strongly support parental responsibility over children, consti-


tutional doctrine has been somewhat limited in this context.8' On the other
hand, regardless of their legal basis, the cases can be seen as establishing a
precedent for privacy.8 2

2. Unwed FatherCases
A second aspect of parent-child privacy concerns the rights of men to a
relationship with their children; a married man has the right to a relationship
with a child and an unmarried man has an enforceable right against an un-
married mother to establish a relationship with their child.8 3 In a series of
cases beginning with Stanley v. Illinois in 1972, the Supreme Court consid-
ered the rights of unwed fathers. Generally, the Court has protected the
rights of unwed fathers when they have lived with or established a substantial
relationship with their children, unless the unwed father is asserting rights
against an "intact" family. 84
In its first case, Stanley v. Illinois, the Court used procedural due process
to find that an intact biological family could not be broken up without a hear-
ing on the unfitness of the parents.8 5 The father in that case had lived spo-
radically with his children.8 6 Six years later, the Court held in Quilloin v.

80 Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). In the 1981 case of Lassiterv. Department
of Soc Servs., 405 U.S. 18 (1981), the Court stated: "This Court's decisions have by now made
plain beyond the need for multiple citation that a parent's desire for and right to 'the compan-
ionship, care, custody and management of his or her children' is an important interest." Id. at 27
(quoting Stanely v. Illinois, 405 U.S. 645, 651 (197)).
81 See Ronald J. Krotoszynski, Jr., Note, Autonomy, Community, and Traditions of Lib-
erty: The Contrast of British and American Privacy Law, 1990 DUKE L.J. 1398, 1436 n.181
("Pierceand Meyer help illustrate one of the quirks of U.S. privacy jurisprudence at the constitu-
tional level: There is no express guarantee of privacy in the document.").
82 In critiquing the concept of neutral principles, Professor Mark Thshnet suggests this as
one of several possible interpretations of the cases. See Mark V. Thshnet, Following the Rules
Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 815
(1983). In a case to be argued this term, the Court will once again consider the privacy rights of
an intact family. See Troxel v. Granville, 969 P.2d 21 (Wash. 1998), cert. granted, 120 S. Ct. 11
(1999). Troxel concerns the rights of parents to prevent third parties from receiving visitation
rights with their children. See id. at 23.
83 See Michael H. v. Gerald D., 491 U.S. 110, 128-29 (1989); Lehr v. Robertson, 463 U.S.
248, 262 (1983); Stanley v. Illinois, 405 U.S. 645, 658 (1972); Naomi Calm, Reframing Child Cus-
tody Decisionmaking,58 Omo STATE L.J. 1, 32-35 (1997) [hereinafter Cahn, Reframing]; Janet
Dolgin, Justa Gene: JudicialAssumptionsAbout Parenthood,40 UCLA L. REv. 637,671 (1993)
[hereinafter Dolgin, Just a Gene].
84 The discussion of the concerned father cases is adopted from Cahn, Refraining, supra
note 83.
85 See Stanley, 405 U.S. at 658.
86 See id. at 646. In Santosky v. Kramer,455 U.S. 745 (1982), the Court later held that, in a
termination of parental rights proceeding, a state must prove by clear and convincing evidence
its allegations against the parents. See id. at 768-70. The previous term, however, the Court had
held that there was no constitutional right to the appointment of counsel at hearings on the
termination of parental rights. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-32
(1981).
1238 The George Washington Law Review [Vol 67:1225

Walcott,87 that an unwed father who had not lived with his children could be
denied parental rights based on application of the best interest standard.88
Allowing the new husband of the biological mother to adopt the children
would help to preserve an existing family unit, and, because the biological
father had never lived with the child or the mother, the Court held that the
state could deem his rights inferior to the best interests of the child.89 One
year later, however, the Court struck down a statute that precluded an unwed
father who had a substantial relationship and had lived with his children and
who had acknowledged paternity from objecting to the adoption of his
children. 90
Then, in Michael H. v. Gerald D., the Supreme Court upheld the consti-
tutionality of a California statute which presumed that a child born to a mar-
ried woman, who was "cohabitating" with her husband, was a child of the
marriage, unless the presumption was challenged within two years. 91 In that
case, a man not married to the mother had a 98.07% probability of being the
9
biological father; he sought to be declared the father under California law. 2
Even though he had some established relationship to both the mother and
the child, and had lived with them both, he had no constitutionally recog-
nized legal rights as a father. 93 A plurality of the Court opined that the fam-
ily unit traditionally given respect did not invade an unwed father who sought
to establish a relationship with his child when the mother was married to
someone else. 94
The unwed child cases can be reconciled to mean three things. First,
unwed fathers have the opportunity, in certain circumstances, to establish
relationships with their children. 95 Second, preservation of the traditional
family unit takes priority over the rights of even the unwed biological fathers
who do establish a relationship with their children. 96 And third, and perhaps,
most important to Professor Fineman, the unwed father's relationship to the
mother is a critical component to the establishment of his rights. 97

87 434 U.S. 246 (1978)


88 See id. at 255 (opinion by Marshall, J.).
89 See id.; DOLGiN, DEFINING TmE FAMILY, supra note 64, at 105-06. Indeed, the child
wanted to continue visitation with his natural father and also to be adopted by his mother's
husband. See Quillion,434 U.S. at 251 & n.11. Interestingly enough, in Michael H. v. GeraldD.,
491 U.S. 110 (1989), see discussion infra notes 91-94 and accompanying text, the child also
wanted to continue her relationship with her biological father. See Michael H., 491 U.S. at 130-
31 (plurality opinion).
90 See Caban v. Mohammed, 441 U.S. 380,392-93 (1979); DOLGIN, DEFINING =HEFAMILY,
supra note 64, at 105-06.
91 See Michael H., 491 U.S. at 129-30.
92 See id. at 114.
93 See id. at 115-16.
94 See id. at 129-30 (plurality opinion).
95 See Lehr v. Robertson, 463 U.S. 248, 262 (1983); Caban, 441 U.S. at 392-93; Stanley v.
Illinois, 405 U.S. 645, 658 (1972); see also Smith v. Organization of Foster Families, 431 U.S. 816,
846 (1977) (recognizing a parent's liberty interest deriving from "blood relationship, state-law
sanction, and basic human right[s]").
96 See Michael H., 491 U.S. at 124 (plurality opinion); Dolgin, Just a Gene, supra note 83;
see also Nancy Dowd, Stigmatizing Single Parents, 18 H.Av. WOMEN'S L.J. 19, 51-52 (1995)
(discussing the many different ways in which the law favors the nuclear family).
97 See DOLGIN, DEFINING THE FAmmY, supra note 64, at 118. Professor Dolgin notes that
1999] Models of Family Privacy 1239

By contrast, outside of marriage, biological relationships continue to be


important in defining the family to awarded constitutional protection. In
Moore v. City of East Cleveland,98 a plurality held: "Ours is by no means a
tradition limited to respect for the bonds uniting the nuclear family. The
tradition of uncles, aunts, cousins, and especially grandparents sharing a
household along with parents and children has roots equally venerable and
equally deserving of constitutional recognition." 99

C. Sexual Decision-Making
Beginning in Skinner v. Oklahoma,100 and continuing into the contracep-
tion and abortion cases, courts have recognized a right to decide whether or
not to beget a child, regardless of the marital context.' 0 ' This right has been
the focus of much commentary. 102 For Professor Fineman's purposes, what is
particularly interesting about this type of privacy are the restrictions placed
on poor mothers with respect to both abortion and fertility. 10 3
Professor Fmeman seeks to reshape some of these concepts of family
privacy, and jettison others. She wants to discard marital privacy; in other
settings, she has called for an end not to marriage, but to the privileged status
of marriage in our culture.104 She wants to retain the family privacy that has
surrounded the parent-child relationship, 10 5 but abandon the notion that a
non-caretaking parent has a right to establish a relationship with his child.
Thus, unless a man is the caretaker, he has no parental rights under this

the cases "delineate three factors that make an unwed man a father. These are the man's biolog-
ical relation to his child; his social relation to the child; and his relation to the child's mother."
Id.
98 431 U.S. 494 (1977).
99 Id. at 504.
100 316 U.S. 535 (1942).
10, See Planned Parenthood v. Casey, 505 U.S. 833, 887-98 (1992); Eisenstadt v. Baird, 405
U.S. 438, 453-54 (1972); Skinner, 316 U.S. at 541.
102 Because these cases concern sexual privacy, I believe there has been a focus both in the
case law and commentary on individual autonomy, rather than on familial decision-making. See
Anne C. Dailey, ConstitutionalPrivacy and the Just Family, 67 TuL L. REv. 955, 963 (1993)
(observing a tension at the center of privacy doctrine between the rights of individuals and the
rights of families). She advocates a theory of family justice which recognizes that "the govern-
ment necessarily plays a role in the formation and maintenance of family life" and argues that
"this role must nevertheless be limited by the government's responsibility to sustain family lives
compatible with a liberal democratic order." Id. at 960.
103 See Harris v. McRae, 448 U.S. 297,306-18 (1980); HELENA MICH]E & NAOMI R. CAMN,
CoNFIEMENTs: FERTILITY AND INFERTILITY IN CONi7EMPORARY CULTURE 140-41 (1997); Su-
san Frelich Appleton, Standardsfor ConstitutionalReview of Privacy-InvadingWelfare Reform:
Distinguishingthe Abortion-FundingCases and Redeeming the Undue-Burden Test, 49 VANCD. L.
REv. 1, 13-24 (1996); Lucy A. Williams, The Ideology of Division: Behavior Modification Wel-
fare Reform Proposals,102 YALE LJ.719, 736-41 (1992).
104 See FNmMAN,THE NEUTERED MOTHER, supra note 3, at 228. She states, "we should
abolish marriage as a legal category and with it any privilege based on sexual affiliation....
There would be no special legal rules governing the relationships between husband and wife
.... I"d.at 228-29.
105 For discussion of the impact of this proposal, see Barbara Bennett Woodhouse, The
Dark Side of Family Privacy, 67 GEo. WASH L. REv. 1247 (1999) [hereinafter Woodhouse, The
Dark Side of Family Privacy].
1240 The George Washington Law Review [Vol 67:1225

scheme. 10 6 Professor Fineman also wants to provide protection for women,


regardless of their income or race, who have exercised their right to sexual
decision-making.'0 7 By changing the family form protected by privacy, Pro-
fessor Fineman challenges core concepts in family privacy doctrine.

III. The Need for Privacy

The final question for this comment is: why is privacy important? This
question is certainly critical to this whole project-why not search for other
concepts altogether? Indeed, as Professor Fineman objected in 1991:
The question arises, however, whether privacy, even if it is a con-
cept embedded in social and cultural presuppositions, could be re-
habilitated or reworked to include single mother families? ... As
things now stand, it does not seem likely that an emphasis on pri-
vacy will do anything other than further reinforce the ideology of
the natural or normal family. 08

A. Why Is Privacy Important?

I think there are two answers to this question. One response involves
Professor Fineman's conception of privacy as more relational, rather than
just an individualist concept. She explicitly wants to protect the family entity,
with that entity defined in a manner that challenges the hegemony of the
nuclear family. The second response concerns the importance of privacy to
poor families, who are generally subject to intrusive governmental
intervention.
I agree with Professor Fineman on the importance of returning connec-
tion and relationship back into conceptions of family privacy. In the family
context, privacy began, in both its constitutional and common law incarna-
tions, not as an individualized matter, but as a relational concept between
parent and child, and between wife and husband. 0 9 We can change the con-
temporary context to focus on the relationship, rather than on the individual
or the compliance with traditional family forms. Instead of attaching privacy
to the status of marriage, privacy should protect the underlying relationship
and allow it to develop. Once we stop thinking about privacy as simply spa-
tial, limited by concepts of secrecy and confidentiality, and only involving
questions of private property," 0 and instead think of privacy (in the words of

106 See Katharine K. Baker, Taking Care of Our Daughters, 18 CAnDozo L. Rnv. 1495,
1496 (1997) (reviewing FiNAN, THE NEUTERED MOTHER, supra note 3).
107 See FiNEMAN, THE NEUTERED MOTHER, supra note 3, at 232-33; Fneman, What Place
for Family Privacy?, supra note 3, at 1221-22.
108 Martha Albertson Fineman, Intimacy Outside of the Natural Family: The Limits of Pri-
vacy, 23 CONN. L. Rav. 955, 955-56 (1991).
109 See supra notes 35-94 and accompanying text.
110 See Woodhouse, "Who Owns the Child?," supra note 78, at 1113-17 (discussing this
problem with respect to children's rights).
1999] Models of Family Privacy

my colleague Professor Bob Park) as involving "identity" and "human rela-


tionships,""' then we can accord integrity to the familial unit.
In suggesting that privacy be accorded not just to individuals but to the
family as a unit, Professor Fineman calls upon the Supreme Court's concep-
tion of privacy in Griswold, the 1965 decision that protected the right of mar-
ried people to contraception under the "penumbras" of the Bill of Rights. 112
This concept was subsequently affirmed in Moore v. City of East Cleveland, a
1977 opinion which explicitly defined "family" in broad terms, and explained
that the respect to be accorded the family is not limited to "the bonds uniting
the members of the nuclear family. 11 3 Significantly, Moore reaffirmed the
importance of family integrity after the Court had expanded Griswold-style
4
privacy to include individuals."
Although an individual is not free to define herself as a family member
and create a functional family that is entitled to constitutional protection,
nonetheless, courts now recognize a constitutionally protected family that is
broader than traditional conceptions of the nuclear family. Privacy has be-
come a fundamental norm in our society, and it can surround both individu-
als and relationships. Thus, privacy is important to allow for decision-making
to occur within the familial unit.
Although the historical use of privacy has allowed domestic violence and
other forms of exploitation to occur within the family, this is not an inevitable
result of privacy doctrine. Privacy has also "nurtured love and commitment"
between family members. 115 Family privacy does not mean that individuals
within the family have no rights and cannot be protected when their rights
are infringed; it simply provides family members with a place to develop
themselves both as an individual and as part of an entity. As discussed in the
next section, family privacy is not without limits.
The story of the 1971 Supreme Court case Wyman v. James 1 6 provides
the second answer to the question of why privacy remains an important doc-
trine in family law. Wyman not only illustrates the importance of allowing
decision-making within the family, but also shows the harm of denying pri-
vacy to the family. Barbara James, a public welfare recipient, refused to al-
low her caseworker to visit her home. 117 She told her caseworker that she
would provide any information that was relevant to her continued receipt of
welfare, but that the caseworker could not make a home visit. 118 At the time,
New York state law required home visits to public welfare recipients once
every three months to verify information concerning eligibility for welfare,

111 Robert Park, Handout for Law of Privacy Seminar 1 (Jan. 11, 1999) (on file with The
George Washington Law Review).
112 See Fimeman, What Placefor Family Privacy?, supra note 3, at 1212-13 (citing Griswold
v. Connecticut, 381 U.S. 479, 484-85 (1965)).
113 Moore v. City of East Cleveland, 431 U.S. 494, 504 (1977) (plurality opinion).
114 See Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972).
115 Dailey, supra note 102, at 1021..
116 400 U.S. 309 (1971). For a similar discussion of the implications of James, see Sherry F.
Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. Rav.
1642, 1719-21 (1998).
117- See Wyman, 400 U.S. at 313-14.
118 See James v. Goldberg, 303 F. Supp. 935, 938 (S.D.N.Y. 1969).
1242 The George Washington Law Review [Vol 67:1225

9
provide professional counseling, and prevent welfare fraud." Moreover,
New York law specified that a child would only be eligible for aid "if his
home situation is one in which his physical, mental and moral well-being will
be safeguarded and his religious faith preserved and protected."' 2 0 Although
a three-judge federal district court struck down the home visit requirement,
the Supreme Court reversed the decision.' 2 ' The majority opinion in Wyman
focused on distinguishing between a true Fourth Amendment search and the
"visitation" at issue, which was neither forced nor compelled, nor sanction-
able with criminal penalties.' 22 The majority found that even if, in some
sense the home visit was a search, it was not unreasonable under the Fourth
Amendment. 123 The majority upheld the termination of Ms. James's welfare
24
benefits upon her refusal to comply with the home visit requirement.
Not surprisingly, there was a strong dissent by Justices Marshall and
25
Brennan. They explained:
[I]t is argued that the home visit is justified to protect dependent
children from 'abuse' and 'exploitation.' These are heinous crimes,
but they are not confined to indigent households. Would the major-
ity sanction, in the absence of probable cause, compulsory visits to
all American homes for the purpose of discovering child abuse? Or
is this Court prepared to hold as a matter of constitutional law that
a mother, merely because she is126poor, is substantially more likely to
injure or exploit her children?
As these questions show, family privacy depends on the class of the fam-
ily. 127 Wealthier families have always received more protection for their fa-
milial decisionmaking, as evidenced by the very history of public welfare to
children. 128

119 See Wyman, 400 U.S. at 312 nn.3-4.


120 See id. at 312 n.4.
121 See id. at 313-14, 326.
122 See id. at 317.
123 See id.at 318.
124 See id. at 326.
125 See dissenting).
id. at 338 (Marshall, J.,
126 Id. at 341-42 (Marshall, J.,dissenting). Professor Katharine Baker notes that "[t]he jus-
tification for affording single mothers less protection-i.e., that their individual claims to privacy
are diminished by their dependence on the state-cannot withstand scrutiny." Baker, supra note
106, at 1504.
127 See Michael Grossberg, Some Queriesabout Privacy and ConstitutionalRights, 41 CASE

W. RES.L. REv. 857, 861 (1991) (discussing briefly the class-based nature of Wyman). Professor
Grossberg argues, more generally, that "[p]rivacy rights have never been uniformly granted but
have varied according to age, sex, race, marital status, political beliefs, religious practices, and
residence." Id. at 862. In an earlier book, Professor Fmeman queried why single mothers-
particularly poor and divorced mothers-were excluded from the protections of privacy. See
FINEMAN, THE NEuTERED MOTHER, supra note 3, at 180, 189-90.
128 See Naomi R. Cahn, Representing Race Outside of Explicitly Racialized Contexts, 95
Maic. L. REV. 965, 970-72, 993 (1997) [hereinafter Cahn, Representing Race]; Ross & Cahn,
Subsidy for Caretaking,supra note 29; Williams, supra note 103, at 721-25. For one of the most
famous articulations of this concept, see generally Jacobus tenBroek, California'sDual System of
Family Law: Its Origin, Development, and PresentStatus (pts. 1-3), 16 STAN.L. REv. 257 (1964),
16 STAN. L. REa. 900 (1964), 17 STAN. L. REv.614 (1965).
1999] Models of Family Privacy 1243

The history of aid to poor women is replete with attempts to control


their lives by making receipt of public welfare contingent on their compliance
with morality requirements that also involve state supervision of their
lives. 29 Under Temporary Aid to Needy Families ("TANF"), the most visi-
ble form of such control is the requirement that a custodial parent relinquish
3
her 30 rights to receive child support, assigning all such fights to the state.' '
To help the state collect the support, the custodial parent must also agree to
cooperate with the local child support agency in establishing the identity of
32
the father and in obtaining and implementing the child support payments.
Although they demonstrate the class bias of privacy law, the questions
Justice Marshall posited in Wyman also dramatically illustrate the signifi-
cance of family privacy, because they show what can happen in its absence.
Without some notion of family privacy, the state can and will intervene,
which is exactly the outcome that Professor Fineman is trying to prevent.
Although all of the opinions in Wyman center on the constitutionality of the
search under the Fourth Amendment, 33 I think the case is a beautiful illus-
tration of the importance of privacy in the parent-child relationship. 134 Al-
lowing these home visits interferes with the parent-child relationship because
Ms. James knows she is always subject to scrutiny-scrutiny beyond that ex-
perienced by wealthier women who do not have the "privilege" of receiving
public aid. A family's dependence on public aid has typically meant forgoing
otherwise applicable privacy rights, 35 as Brennan and Marshall argue in Wy-
man, so long as we recognize the importance of privacy to the wealthy and
middle class, we must accord the same necessary privacy to the poor. A clear
doctrine of family privacy, such as that defined by Professor Fineman, might
protect the relationship between future Barbara James's and their children.
Ms. James would have been able to raise her children without fearing her
caseworker's oversight; she would have been better able to preserve her own
dignity.

129 See Cahn, Representing Race, supra note 128, at 972. This was true, regardless of the
type of "aid" these mothers received. See generally LINDA GORDON, HEROES OF THEIR OwN
LivEs (1988) (describing attempts to impose middle-class norms on poor women who were vic-
tims of domestic abuse).
130 Virtually all of the custodial parents on TANF are women. In 1993, 4.3 million mothers,
compared to 300,000 fathers, were receiving AFDC, the predecessor to TANF. See U.S. Census
Bureau, Statistical Brief, Mothers Who Receive AFDC Payments (last revised Feb. 8, 1999)
<http'/.www.census.gov/socdemo/Www/sb2-95.html>.
131 See 42 U.S.C. 608(a)(2)-(3) (Supp. III 1998).
132 See id. 654(a)(29)(A); Libby S. Adler, Federalismand Family, 8 CoLum. J. GENDER &
L. 197, 213-15 (1999).
133 For commentary on this aspect of the opinion, see Louis Michael Seidman, Points of
Intersection: Discontinuitiesat the Junction of CriminalLaw and the Regulatory State, 7 J. CON-
TEmp. LEGAL ISSUES 97, 159 n.277 (1996); Louis Michael Seidman, The Problems with Privacy's
Problem, 93 MicH. L. Rnv. 1079, 1095 n.84 (1995); Monica L. Setter, Comment, Sweeps: An
UnwarrantedSolution to the Search for Safety in PublicHousing,44 Am. U. L. Rev. 1903, 1924
(1995).
134 See Colb, supra note 116, at 1922.
135 See Dorothy E. Roberts, The Only Good Poor Woman: UnconstitutionalConditions
and Welfare, 72 DENv.U. L. Rv.931, 941-42 (1995).
1244 The George Washington Law Review [Vol 67:1225

Lucie White has a similar story that teaches the same moral about a
client who creatively testified about her use of a fortuitously received sum of
money. 136 Rather than revealing her actual use of the money-to replace the
children's worn-out shoes-Mrs. G. told the administrative law judge that
she used the money to purchase Sunday shoes for her children. 37 In the
midst of extensive scrutiny, Mrs. G. was able to preserve some dignity and
privacy for herself, and simultaneously support a public image of herself as a
conforming mother.

B. What Are the Limits of that Privacy?


The court justified the intrusion on Ms. James as helping to prevent
abuse and exploitation of children. Professor Fineman states, so long as
there is no abuse or neglect within the caretaking unit, then we should re-
spect its autonomy, indicating that "we can argue about where to draw those
lines later.' 3 8 But I think the abuse and neglect issue more fundamentally
defines the autonomy to be accorded the caretaking unit. Ms. James lost her
autonomy because of worries about abuse and neglect. In New York City
alone, there are 22.5 times more African-American children in foster care
than white children. 139 The differential treatment of poor women, and partic-
ularly women of color, is something about which Professor Fineman has writ-
ten quite eloquently before in discussing women's impoverishment. 40 Poor
women are disproportionally more likely to be subject to the abuse and ne-
glect system; in defining privacy, we must separate it, as a normative good,
from poverty. Privacy is a useful concept because it protects autonomy and
relationships, but it must do this in as unbiased a manner as possible. Thus,
in defining the limits of family privacy, we must pay attention to the bounda-
ries of that privacy lest it have a discriminatory impact.
In her comments on Professor Fineman's paper at this Symposium, Pro-
fessor Woodhouse was deeply concerned that family privacy might silence
children, deny them respect for their rights and interests, and subject them to
abuse within the family. 141 She analogized the situation of children under
Professor Fineman's proposal to the situation of women during coverture and
as victims of domestic violence. Professor Woodhouse is appropriately con-
cerned with the voices of children, as the historical use of family privacy has
served to subordinate both women and children. 42
Our traditional method for providing protections against this subordina-
tion has been through the development of specific legal "rights." And, for
groups which have been historically subordinated, rights discourse can indi-

136 See Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes
on the Hearing of Mrs. G., 38 BuFF.L. REv. 1, 31 (1990).
137 See id.
138 See Fmeman, What Place for Family Privacy?, supra note 3, at 1223.
139 See David L. Lewis, Study: Race Gap in Foster Carefor Kids, N.Y. DAILY NEws, June
18, 1998, at 38; Arthur Gregg Sulzberger, Calling for Parents with a Little Extra Love to Go
Around, N.Y. AMSTERDAM Naws, Aug. 27, 1998, at 6.
140 See FiNMAN, THE NEUTERED MOTHER, supra note 3, at 101-25.
141 See Woodhouse, The Dark Side of Family Privacy, supra note 105, at 1254-55.
142 See id. at 1258-59.
1999] Models of Family Privacy 1245

cate that they, too, are deserving of recognition under our constitution. 143 In
addition to Professor Woodhouse, other scholars have similarly charged that
children's voices are excluded from the law, and that children are deserving
of rights. 44 Yet, rights discourse is complicated when it is applied to chil-
dren. Children's rights and interests exist for them as individuals and more
contextually, for them as family members. Until they are capable of articu-
lating their own needs, they are dependent on their caretakers and on the
state to protect them. 45
Given the concerns of both Professors Fineman and Woodhouse, there
are some valid questions as to the limits of family privacy. How does family
privacy affect our legal response to the abuse and/or neglect that occurs
within this caretaking unit? What happens at the margins of privacy? How
should neglect be defined? Is it the refusal of medical care for a sick child on
religious grounds? Is home schooling equivalent to neglect? Is neglect broad
enough-or is it too broad-to establish the limits of privacy? 146 Assuming
that there are definitions for abuse and neglect, how should the state re-
spond? Should the state remove children and place them through public
agencies? Should public agencies provide support to the family to help pre-
vent abuse and neglect, and then to reunify the family as quickly as possible?
Should efforts be made to place abused children through kinship care? 147
What is the appropriate role of the public in protecting the boundaries of
family privacy? These are extremely difficult questions that challenge the
parameters of our notions of family privacy.

143 For a discussion of the importance and ambiguity of rights, see Richard Delgado, The
Ethereal Scholar: Does CriticalLegal Studies Have What Minorities Want?, 22 HARv.C.R.-C.L.
L. REv. 301, 305-07 (1987); Katherine M. Franke, Becoming a Citizen: Reconstruction EraRegu-
lation of African American Marriages,11 YALE J.L. & HUmAN.251, 252-55 (1999); Reva Siegel,
Why Equal ProtectionNo Longer Protects: The Evolving Form of Status-EnforcingState Action,
49 STAN. L. REv. 111, 117 (1997); Patricia J. Williams, Alchemical Notes: ReconstructingIdeals
from DeconstructedRights, 22 HARv.C.R.-C.L. L. REv. 401, 432-33 (1987); see also Siegel, "The
Relief of Love," supra note 28, at 2196-2206 (discussing how controversy over the creation of a
new civil rights remedy against violence against women draws on a "discourse of affective
privacy").
144 See, e.g., Martha Minow, Rights for the Next Generation: A FeministApproach to Chil-
dren's Rights, 9 HArv.WomEN's LJ.1, 6 (1986); Ross, supra note 72, at 1578, 1587-88. Profes-
sor Katherine Federle argues that to provide sufficient respect to children's rights, we must not
only treat children as a party to any dispute that affects them, but also appoint counsel for them
to ensure adequate representation. See Katherine Hunt Federle, Looking for Rights in All the
Wrong Places: Resolving Custody Disputes in Divorce Proceedings,15 CARDoZO L. REv. 1523,
1562-64 (1994).
145 See Calm & Singer, supra note 15, for further discussion of the tension between chil-
dren's rights and conventional constitutional doctrine. As Professor Eva Kittay points out, it is
"useful to distinguish between the inequality of power in a relation and the exertion of domina-
tion in a relation of inequality.... Domination involves the exercise of power over another
against her best interests and for purposes that have no moral legitimacy." KrrrAY, supra note
7, at 33-34. As she suggests, however, inequality is not equivalent to domination.
146 See generally Naomi Cahn, Policing Women's Bodies: Moral Arguments and the Di-
lemma of Criminalization,49 DEPAuL L. Rav. (forthcoming 2000).
147 For further discussion of these issues, see Naomi Cahn, Children'sInterests in a Familial
Context: Poverty, Foster Care,and Adoption, 60 OHIo ST. LJ.(forthcoming 1999); Ross & Cahn,
supra note 29.
1246 The George Washington Law Review [Vol 67:1225

Conclusion
As Professor Fineman proposes, let us leave some privacy in the family
and let us determine affirmative methods for the state to support that pri-
vacy. 1 4 8 The state should provide support,'1 4 9 but also protect the integrity of
the family, including, as Professor Woodhouse points out, its constituent
members. 50 Although, as Professor Woodhouse also notes, what is good for
women is not necessarily good for children,' 5' thus leading to questions about
the use of privacy in this sphere, Professor Fineman raises powerful argu-
ments to support the importance of family privacy. While I am not sanguine
about broad reformulations of family privacy on the constitutional level, as a
public policy matter, we can recognize that privacy continues to play, and
should play, an important role in the structuring of families.

148 See Fineman, What Place for Family Privacy?, supra note 3, at 1224; see also Roberts,
supra note 135, at 945 ("[W]e are left to make an affirmative claim to public assistance for
'private' decisions. Such a claim is incomprehensible under current constitutional doctrine be-
cause of the barrier it has erected between public and private domains.... [W]e must challenge
this wall of constitutional thinking.").
149 As Professor Dorothy Roberts has written, "[a] truly democratic society has the obliga-
tion to provide its members with the prerequisites of political participation." Roberts, supra
note 135, at 948.
150 See Woodhouse, The Dark Side of Family Privacy, supra note 105, at 1261.
151 See id. at 1256-57.