Document Type

Article

Publication Date

2007

Publication Information

51 Howard L.J. 1 (2007-2008)

Abstract

Loving v. Virginia has been thought of in many ways: as an important step toward full equality for African-Americans, as, more generally, a statement about the suspect classification of race, as a declaration about the fundamental nature of marriage, and as a critical addition to the construction of the right to privacy (as well as, of course, exemplified in the validation of the Lovings' own marriage).

In my contribution to the first Loving symposium, I wrote about the increasing tendency of the Supreme Court, following the 1967 decision, to treat the rights of intimacy as belonging to the individual adults involved.8 I concluded that the Court increasingly "vindicate[d] the choices and inclination of adults," viewing marriage as depending upon continuing emotional fulfillment and neglecting the "permanence, commitment, and unconditional nurturing of marriage and parenthood."

Recently, however, I have been wondering whether the Court might not have reached the end of this trajectory and returned to celebrating the intimate relationships as opposed to the rights, particularly reinforcing relationships between parent and child. Many of my musings, though reached independently, echo those expressed in Carl Schneider's Religion and Child Custody, and my worries about them in Mary Ann Glendon's Rights Talk. Nonetheless, I do realize that the two emphases may be operating simultaneously, and when the interests of parent and child collide, a majority of the Court has recently concluded that the child's interests may prevail.

If I am right that Loving begins a cycle of sorts, a profitable way of thinking about the case might then be (to paraphrase the book of Genesis) that Loving begat Michael H., Michael H. begat Troxel, and so forth. Furthermore, in the same way that Meyer and Pierce seem rather strange ancestors to Roe v. Wade, Loving (also cited in Roe), clearly a case about marriage, seems a strange predecessor for cases dealing with children's interests when they diverge from their parents' interests. Nevertheless, because the constitutional right of privacy expanded in Loving is closely connected with the prudential family law notion of autonomy, the connection between such cases makes sense.

With these musings in mind, I would like to consider five recent Supreme Court cases involving relationships, and in particular, the growing acceptance of Justice Stevens's position that children's interests, and especially their relationships with their parents, ought to be considered. I begin with Michael H. v. Gerald D., a post-Loving case about parenting where a marriage relationship was deemed highly important, but the child's interests were considered only as a subset of her parents' interests. This is the case with which my original Loving piece ended.

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Reprinted with permission of Howard Law Journal.

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