The national tragedy occasioned by the Supreme Court’s abortion decision in Roe v. Wade has obscured a similarly devastating and perhaps even more far-reaching catastrophe for American society brought about by the Court’s jurisprudence. Coinciding with the decisions leading to and expanding a constitutional “right” to contraception and abortion has been a line of decisions in which the Court has limited the ability of American society to protect the family based upon marriage. That Congress must now consider extraordinary measures to bring the exploding welfare crisis under some sort of control is one legacy of the Court’s assault upon the marriage-based family. So, too, is the limited range of options left open to Congress. But whatever Congress achieves in the way of welfare reform, it appears likely that a solution will continue to elude lawmakers as long as reform must be worked out within the confines demanded by the Supreme Court.
Both the abortion cases and those dealing with family law intersect in the Court’s 1965 opinion Griswold v. Connecticut in which the Court struck down as unconstitutional Connecticut’s ban on the purchase and use of contraceptives by married couples. In defending the “sacred precincts of marital bedrooms,” Justice William O. Douglas wrote for the Court: “We deal with a right of privacy older than the Bill of Rights. . . . Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. . . . It is an association for as noble a purpose as any involved in our prior decisions.” With these words the Court fashioned a right to privacy which protected a married couple’s decisions regarding procreation from state supervision, regulation or intervention. Some scholars interpreted this language, as well as the limited constitutional recognition afforded marriage in Griswold, as standing for a long overdue acknowledgment by the Court of the unique role of marriage in American society.
But seven years later it became clear that the Court had something entirely different in mind. In Eisenstadt v. Baird the Court held that the “sacred” precincts of the marital bedroom were really no more sacred than those of any other bedroom. “[W]hatever the rights of the individual to access to contraceptives may be,” wrote the Court’s only Catholic member, Justice William Brennan, “the rights must be the same for the married and the unmarried alike.” The reason, continued Justice Brennan, had to do not only with how the Court understood the right of privacy but how it thought about the institution of marriage:
It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make up. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.
For Justice Douglas it was not the “sacredness” of the institution of marriage, but the “sacredness” of the intimate relationship within marriage which required protection and, as the Court recognized in Eisenstadt, such intimacy may occur outside the bonds of marriage as well. Indeed, the interest in privacy may be even greater among couples engaging in such intimacy outside of marriage.
What becomes apparent with the Court’s decision in Eisenstadt is how seriously deficient was its view of the institution of marriage in Griswold. While the Court in Griswold had a great deal to say about privacy, it said little about the nature of marriage per se and nothing about its purposes or why society has through the centuries afforded the married couple a unique status under the law. To the contrary, the only “value” which the Court recognized in Griswold was that of privacy, and that “value” was to be seen by the Court to be equally valuable for the unmarried as for the married. In Eisenstadt, the Court made clear that privacy is not a principle of differentiation. Instead, it is the type of value which blurs traditional distinctions.
Although the Court did not in Eisenstadt explicitly hold that non-married couples have a constitutional right to engage in activities for which contraceptives may be used, a fair inference from its opinion is that the Court, by establishing the right of non-married couples to contraceptives, overturned the centuries-old distinction family law enforced regarding when sexual activity was permitted and when it was not. Absent from the Court’s analysis in both Griswold and Eisenstadt is the recognition of this basic tenet of Western law regarding marriage. Moreover, to view sexual intimacy or one’s expectation of privacy associated with it as the defining characteristic of marriage is to misunderstand the precise point on which the unique position of marriage has been based in Western society.
This tradition views matrimony as a natural institution with one of its principal ends being the good of the children. Procreation concerns more than simply the decision to bear or beget a child. It is also a commitment to the upbringing, education, and development of that child. To reduce the procreative end of marriage to sexual activity isolated from its broader procreative context is to fundamentally re-define the meaning of marriage. Having ignored the connection between the unitive meaning and the procreative meaning of marriage in Griswold, it was a short step for the Court in Eisenstadt to equate sexual activity within marriage with that occurring outside of marriage. Before Griswold, the Western tradition, in holding that one of the principal ends of marriage included the good of the offspring, had developed through time a comprehensive legal structure around the institution of marriage to protect not only the spouses themselves but also their children. That structure was based upon the realization that there existed a profound connection between the begetting and upbringing of children.
The year after Eisenstadt, the Court moved to extend its logic in two welfare cases. New Jersey Welfare Rights Organization v. Cahill (1973) was the first of the two in which the Court struck down considerations of marriage or family as criteria for the distribution of public assistance. New Jersey’s welfare program provided financial assistance to families consisting of a household composed of two adults who were married to each other and who had at least one minor child. New Jersey sought to exclude unmarried, cohabitating couples as part of its attempt to strengthen the institutions of marriage and the family based upon it. The Supreme Court invalidated the law saying that it denied equal protection of the law to those living together without marriage and to their children.
In the second case, United States Department of Agriculture v. Moreno (1973), a lower federal court invalidated a provision of the national food stamp program which required that for a “household” to be eligible for assistance it would have to be comprised of individuals related by blood, marriage or adoption. The lower court, citing the Court’s decisions in Griswold and Eisenstadt, insisted that “Recent Supreme Court decisions make clear that even the states, which possess a general police power not granted to Congress, cannot in the name of morality infringe the rights to privacy and freedom of association in the home.” The Supreme Court upheld the lower-court decision. Writing for the Court, Justice Brennan noted with approval that the government had abandoned its earlier contention that the statute should be preserved in deference to the state’s interest in fostering morality. The Court concluded that the restriction of such benefits to families based upon marriage was “wholly without any rational basis.”
Not only has the Supreme Court insisted that both national and state public assistance programs subsidize families without regard to marital status, the Court has also been steadfast in stopping local communities from indirectly attempting to avoid the consequences of its redirection of national and state public assistance policies. For example, in Moore v. City of East Cleveland (1977) the citizens of a middle-income, predominately Afro-American community attempted through its zoning regulations to exclude the multi-generational, matrifocal, extended households so prevalent within the welfare culture of our larger urban centers. In striking down East Cleveland’s attempt to define “family” in a way which excluded certain forms of nontraditional living relationships, the Court said, “We cannot avoid applying the force and rationale” of our precedents such as Roe v. Wade and Griswold v. Connecticut “to the family choice involved in this case. . . . The Constitution prevents [the government] from standardizing its children — and its adults — by forcing all to live in certain narrowly defined family patterns.”
These cases rest upon the Supreme Court’s use of “privacy” as the analytical category by which to grant constitutional recognition to marriage and related family issues. The problem with this approach is that in the context of family law “privacy” as a defining principle cannot tell us what is unique or important about marriage and the family based upon it. Because privacy in sexual and other associational matters is valued by the married and the non-married alike, “privacy” as a constitutional principle virtually always mandates that the married and non-married be treated alike.
Individuals, whether married or not, should be free from unwarranted governmental intrusion. In fact, even when warranted, governmental intrusions upon individual liberty should be carefully restricted. Unfortunately, the Court’s analysis of privacy misses the central issue. Historically, American society did not value and protect marriage because of the spouses’ expectation of privacy. Marriage was granted unique rights because we found through experience that the stable, enduring monogamous couple was the best community for the bearing, nurturing, and maturation of children. This was why sexual activity and procreative decision-making by married couples within marriage was protected. It is also why the law denied this same “liberty” to persons in non-marital settings.
The legal framework which protected marriage as a unique social institution had everything to do with the larger community’s very public interest in the welfare of children. It had very little, perhaps nothing at all, to do with notions of privacy. The Court’s myopic preoccupation with “privacy” has distorted its treatment of the one institution — the stable family based upon marriage — which has been foundational to our society’s ability to balance respect for individual liberty with the political, social, and economic demands of society.
During the last three decades, the percentage of children living in single-parent homes has nearly tripled to approximately 17 million. In a number of American cities a majority of children lives in such homes. Since 1965 the illegitimacy rate for Afro-Americans has increased from 28 to 68 percent and from 4 to 20 percent for whites. Such trends led the National Commission on America’s Urban Families to conclude: “The family trend of our time is the deinstitutionalization of marriage and the steady disintegration of the mother-father childraising unit. . . . No domestic trend is more threatening to the well-being of our children and to our longterm national security.”
Today, 90 percent of children living in single-parent homes live only with their mother. This phenomena has particularly devastating consequences for Afro-American children and their mothers. The current congressional debate over the future of welfare has made unnecessary the recitation of the devastating consequences of these trends on the poor and the welfare dependant. What continues to receive less attention are the effects of this shift upon the working poor. A staff report of the U. S. Commission on Civil Rights found that, while the wages of Afro-American women under 40 years of age increased significantly during the 1980s, reaching near parity with non-Hispanic white women (94 percent), Afro-American women continued to have a much lower economic status than comparable white women. These women’s average family income was less than two-thirds and their median family net worth was less than one-fifth as high as were those of their white female counterparts. Afro-American women were also five times more likely to be in poverty and on welfare.
Many factors contributed to this result, not the least of which has been racial discrimination, but the report found a significant cause of disparate economic status to be differences in family status. Among all Afro-American families with children, only 11 percent of married-couple families live below the poverty line to 51 percent of those in female-headed households. Interestingly, married Afro-American women have much higher labor force participation rates than do their white counterparts (73 to 64 percent). But among unmarried women these labor force participation rates are reversed (56 to 73 percent). Clearly the significant increases in earning power among some of the most historically disadvantaged Americans today have been offset by the disintegration of marriage within their communities.
These trends cannot be entirely isolated from Supreme Court decisions over the past three decades which have in effect reduced the decision to marry to no more than one among several consumer choices. The Court has at times defended its actions by arguing that it is unfair to deprive children born outside of marriage of the same benefits that are available to children born to married couples since no child is responsible for the circumstances of his birth. That is an argument which carries considerable weight. But there is another concern which the Court has failed to address and that is the question of what precisely does a couple expect to gain for their child by marrying? Under the present welfare system as redirected by the Court the answer is clearly that the couple gives its child very little and may in fact substantially disadvantage it economically by marriage.
None of these trends can be adequately understood apart from the contours of a domestic social policy defined in large measure by rulings of the Supreme Court. Legislative reform of these policies cannot realistically proceed while ignoring or acquiescing to the Court-mandated moral neutrality which underlies current income-transfer programs. It is increasingly difficult to avoid the conclusion that such a judicially imposed neutrality has forced the subsidization of the growing number of single-parent families and the social pathologies which are increasingly associated with them. It was not too long ago in our national life that the social, economic, and legal context of a couple’s decision whether or not to marry as the best means of providing for their children was strongly weighted to ward the decision to marry. No doubt there were times when a decision to marry may not have been the perfect one. Nonetheless, society’s preference for marriage resulted in a preference for the welfare of children far surpassing what we have now achieved.
We have as a society lived for too long a time under the illusion that the moral well-being of a community can be ignored while its economic wellbeing is preserved. That illusion has been fostered by a court which has abandoned the language of morality when addressing the institutions of marriage and family. But can a society with a constitutional order premised on the dignity of the human person such as ours continue to ignore the moral implications of the most profound relationship between two people, that is, the relationship which results in the creation of a new human being? Of course, one challenge to such a new moral discourse in the present social and legal context will be to avoid the appearance of a certain narrow moralism or fundamentalism. Instead, we need to understand that the present crisis in law and in the family has resulted not only from a misreading of the Constitution but from a distorted view of the human person and of his freedom. The place to begin a truly moral sensibility in regard to marriage and family, as well as a properly constitutional one, must be in the recovery of a moral sensibility in regard to the dignity of the human person.
Of course, the Court’s lack of moral discourse regarding marriage and the family is not unrelated to its similar abdication on the question of abortion and human life before birth. Moreover, given the impasse in the abortion debate caused by the Court’s opinion in Planned Parenthood v. Casey, it may well be that the only feasible way to gain a reconsideration of Roe v. Wade in the foreseeable future will be to force a reconsideration of those analogous cases affecting marriage and family life. For more than a decade, certain public officials have recognized the necessity of a new generation of jurists who understand the connection between a morally sound constitutional order and the responsibility of the state to protect the lives of innocent human beings. It is time to consider as well the necessity of jurists who recognize that the American constitutional order does not require that the family based upon marriage be cast adrift upon seas of legal neutrality and even hostility where it has at present been left to flounder.