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Catholic University Law Review
not the extensive use of poverty lawyers to obtain divorces and the increase of divorce itself paradoxical proof of the American determination to find happy stable centers for personal existence in lawful marriage?83 Do not Roger Traynor's words in DeBurgh v. DeBurgh,84 a California divorce case decided in 1957, still 1eflect this society's experience:
The family is the basic unit of our society, the center of the per-
free people.85 It may be objected that the words apply to the family, not marriage. The · two institutions may be distinguished. Justice White in Stanley v. Illinois makes that distinction. Equating married and unmarried fathers, he insists on the Court's continuing solicitude for the family. He declares the Court's respect for “the integrity of the family unit.” He sees no inconsistency in enlarging this respect to "those family relationships unlegitimated by a marriage ceremony."86 In Stanley the family constituted by law and the family constituted by biology are treated together. The family is viewed as a legal institution distinct from marriage.
Such a view incorporates a profound misreading of the history of our society. We do not know the family except as formed by marriage or as formed in incomplete imitation of the form shaped by law. Without marriage, created by law, acknowledged by law, privileged by law, the family is a formless biological blob. Roger Traynor ends his description of the basic social unit: “Since the family is the core of our society, the law seeks to foster and preserve marriage."87 He spoke from American experience. Appealing to an older and wider experience, Pope John XXIII spoke similarly in 1960: Marriage is "the greatest and most precious good of social life.”88
What is the value of such testimony to the place of marriage from Pope Jolin or Chief Justice Traynor or Justice Harlan or Chief Justice Warren? I do not invoke their words in this context as religious or judicial authority,
83. Cf. T. Linz, THE PERSON at 389 (1968).
88. John XXIII, The Ioliness of Marriage and the Christian Family, Allocution to the Auditors of the Sacred Roman Rota, October 25, 1960, 52 ACTA APOSTOLICE SEDIS 901 (1960).
Family and the Court
nor do I cite them for their originality of insight or depth of research. Public statements by public men run the risk of derision as platitudes. Yet made by thoughtful persons with broad experience, addressed precisely to the subject before them, stating perceptions they know are shared by their audicnce, public utterances may be better guides to social experience than the fragile hypotheses of sociological investigators. Such is the case with these statements on marriage of Warren, Harlan, Traynor, and Roncalli. Unselfconsciously they state what they know to be true in their experience, in their observation, in their interpretation of human interactions. They state it knowing that the men and women to whom they speak will acknowledge it as true from their own experience.
The human experience assumed and compressed in these evaluations of marriage cannot be disqualified-thrown, as it were, out of court--by showing that marriage in America was the reflection of an ecclesiastical paradigm, the offshot of an ecclesiastical system. The survival of Sunday closing hours provides a tame analogy--that the command to worship without working is one of the Ten Commandments, that the seventh day has a basis in Genesis, that Sunday has a relation to the Resurrection have not impaired the laws' secular validity; Justice Douglas to the contrary, the evident religious parentage of the laws has not made them unconstitutional. 89 More fundamentally, the authority of the courts as oracles of justice, the sovereignty of government as a power ordained by God, the sanctity of the human person as created in the image of God--all these vital presuppositions of our system of law-have religious roots, all express mythic-moral perceptions. To suppose that they have constitutional validity, while marriage does not, because they have been and are beyond controversy, would be to show little knowledge of contemporary pessimism and less knowledge of the decpest cleavage in the American past."
Constitutional Judgments In Family Law:
An Unsettled Realın
Recent as the most radical decisions are, they are scarcely the work of “the Burger Court,” if by that terin one means a Court shaped by its Chief Justice. The authorship of the decisions has cut across conventional political and ideological linesJustice Douglas delivering the opinion in Glona, Justice White in Stanley, Justice Brennan in Eisenstadt and the Food
89. McGowan v. Maryland, 366 U.S. 420 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961). In dissent in McGowan, Justice Douglas observed that "the parentage of these laws is the Fourth Commandment; and they serve and satisfy the religious predispositions of our Christian communities." Id. at 572-73 (dissenting opinion).
90. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 403 and 576 (1857).
Catholic University Law Review
Stamps Case, Justice Blackmun in Roe and Doc. In Eisenstadt, Stanley, and the Food Stamps Case the Chief Justice was in open dissent. In the Abortion Cases his concurrence was directed to moderating the sweep of the Court's opinion." The absence of unanimity in the Court, the failure of the opinion writers to convince the Chicf, the contradiction between the generalizations in the recent opinions and Griswold, Labine, Loving, and Boddie all suggest that a definitive rationale for constitutional judgments in the realm of family law has not been settled.
The decisions invalidating discrimination against children may be explained without resort to Equal Protection, the right of privacy, or the relegation of marriage to the status of a suspect mythic-moral category. They rest on a simple principle of generality. The principle is that A may not be punished for the act of B without denying A due process of law. This demand of elementary justice is part of the meaning of the fifth and fourteenth amendments.
Notions of family solidarity and the corporate clan obscured the principle for centuries in relation to children. The Old Testament view that the father's sins are rightly visited on the sons and the New Testament view that sin is inherited made Western minds complacent with the injus
The more basic notions in Jewish-Hellenic Cluistianity of personal salvation and personal responsibility worked against this coalescence of children with their parents. King Lear is not a celebration of the nobility of those born out of wedlock, but when Edgar asks: "Why bastard? Wherefore base, When my dimensions are as well compact, My mind as generous, and my shape as truc, As honest madam's issue?"93 Who in our culture has not been on his side? The gradual evisceration of the old bastardy discriminations testified to the triumph of the ideal of personal responsibility. The legal principle outlawing all injuries to the innocent child has now been comprehensively stated by Lewis Powell.94 The principle that the child is not accountable for the parents' act will explain Levy, Weber, Richardson, Gomez, and, on the Court's reading of the facts, New Jersey Welfare Rights Organization. With Edgar we may rejoice: “Now, gods, stand up for bastards.”95 The Court has done so.96
91. Roe v. Wade, 410 U.S. 113, 165.
96. Since the delivery of the Pope John XXIII lecture, the United States Court of Appcals, 51h Circuit, decided Weinberger v. Bety, 478 F.2d 300 (1973), Cerliorari filed, 42 U.S.L.W. 3259 (1973) which extended Social Sccurity disability benefits to illegitimate children without proof that the wage earner actually supported the children.
Family and the Court
Glona, Stanley, Eisenstadt, the second Food Stamps Case, Roe, and Doe are not justificd by a principle of elementary justice. They are not cxplicable by the invocation of Equal Protection or the right of privacy. They cannot be explained by viewing marriage as an impermissible religious category, when marriage has social purpose in our socicty. They are, then, wrong-wrong in using the Equal Protection Clause on behalf of the unmarried parent and the unmarried spouse, wrong in extending the right of procreative privacy to the unmarried person. They are wrong in subverting the privileged status of marriage, contrary to the teaching of Loving v. Virginia and Boddie v. Connecticut, contrary to the place of marriage in American experience. The vital personal right recognized by Loving v. Virginia is not the right to a picce of paper issued by a city clerk. It is not the right to exchange magical words before an agent authorized by the state. It is the right to be immune to the legal disabilities of the unmarried and to acquire the legal benefits accorded to the married. Lawful marriage in the society's hierarchy of values recognized by Boddie v. Connecticut and in the host of laws yet unchallenged-the tax law, the common law of property, the law of evidence-is a constellation of these immunities and privileges. To say that legal immunities and legal benefits may not depend upon marriage is to deny thc vital right. To say that Equal Protection requires the equal treatment of the married and the unmarried in all respects is to deny the hierarchy of values of our society.
The nation and the institution of marriage survived Phases One and Two of the Court's exposition of the Constitution and its requirements in the law of domestic relations. Social patterns of sexual behavior are determined by more than court decrees. Marriage as a religious institution, voluntarily entered, is not ended by any court's decree that the married and the unmarried must be treated alike. But the law, while far from omnipotent, has a pedagogic role in the shaping of society which cannot be dismissed. In a secular age, as ecclesiastical authority diminishes, the specific importance of the Supreme Court as the expositor of moral doctrine increases.
The nation and the institution survived Phase One and Phase Two, but the costs of the Court's mistakes were far from negligible. Who can read of the persecution of the Mormons by the federal government without awarcness of the cruelty of the Court's conclusions in Phase One?!? Who can
The court finds no rational basis for a distinction where such proof is not required of legitimate children.
97. See Freeman, A Remonstrance for Conscience, 106 U. Pa. L. Rev. 806, 825 (1958).
Catholic University Law Review
look at the consequences to husbands, wives, and children of the masterful confusion, the topsy-turvy constitutional law of divorce, support, and custody, without a sense of the Court's incompetence in Phase Two?98 Who can contemplate the implications of the cases on the rights of the unmarried without a suspicion that the Court has enunciated principles inconsistent with the preservation of the most precious of social goods?
A paper on the family may appropriately end with a children's fable“The Gingerbread Man.” The Gingerbread Man, you may remember, was an exceptionally well-made work of human artifice. After outrunning many dangers he was taken on the tail of an old fox. The fox moved him from his tail to his back, from his back to his nose, and then threw him, topsyturvey, in the air and on his descent began to eat him.
“I'm a quarter gone,” cried the Gingerbread Man. Then, "I'm half gone," he cried. Then, "I'm three-quarters gone." And then there was silence.
If marriage had a tongue like the Gingerbread Man, what would it cry out now?
98. See Hazard, May v. Anderson: Preamble to Family Law Chaos, 45 Va. L. Rev. 379 (1959); Note, Divisible Divorce, 76 Harv. L. Rev. 1233 (1963).