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41 Howard L.J. 271 (1997-1998)


In the twenty years following Loving, the Supreme Court decided a number of cases dealing with the family. Although the Court reasoned that it was protecting marriage and extending such protection to other forms of families, the perverse effect of these decisions was to weaken the most traditional family type of all, the nuclear family. Adults, and particularly pregnant women and unwed fathers, triumphed in this move towards autonomy and rights. The vanquished included those who depended upon the family for love and sustenance: minor children, elderly adults, and longtime homemakers.

This paper discusses these cases from a family law perspective. Because most of the litigants in these cases have been adults who needed to establish the existence of a constitutional right in order for their claims to even be heard by the Supreme Court, the Court does not approach these cases from a family law perspective. The case that comes the closest to using family law language is not one defining marriage or one seeking to establish some constitutional right. Moore is a defensive action by a grandmother trying to prevent the loss of a home and roots for her progeny. It is a case that speaks of childrearing and persevering generations as the essence of family.

After more than twenty years of Court pronouncements on the family, the legal analysis of family issues is still a bit confused. The cases are not written in the "language of love" or even in family law language speaking to the "best interests of the child," but in the harsher language of rights. These decisions vindicate the choices and inclinations of adults, reflecting an America that increasingly views marriage as an emotional and impermanent relationship. The permanence, commitment, and unconditional nurturing of marriage and parenthood are mostly ignored.


Reprinted with permission of Howard Law Journal.

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