Indiana Law Review


Balancing Acts: Crisis, Change, and Continuity in
American Family Law, 1890-1990

Michael Grossberg'

Introduction

The Symposium to celebrate Indiana University School of Law at Indianapolis'

s

Centennial has given me an opportunity to think broadly about family law over the last
hundred years. In contemplating the Symposium theme, "Then, Now and Into the
Future," I have been struck by questions of time and timing, and how they affect the way
we think about the present, the past, and the relationship between the two. Asked to
compare family law in the 1890s and 1990s, I am struck by obvious parallels. Then and
now, the widespread conviction that families constituted the bedrock institution of our

society made Americans particularly sensitive to what goes on in the nation's homes.
Then and now, family change provoked fears that all was not well in the household and

thus the republic. Then and now, newspaper stories chronicled rising divorces, juvenile

crime, dead-beat fathers, abusive parents, and neglected children. And, then and now, law

seemed an inviting arena in which family problems could be addressed. In other words,

thinking about the family and its law, the distance between then and now does not seem
very great. And yet, of course, in many other ways, family controversies are not the same.
Test-tube babies and surrogate motherhood suggest the differences.

Nevertheless, what has struck me the most about a comparison of family law in 1 890s
and 1990s is not so much the commonality or differences in particular issues or even in

the importance placed on family well-being, but rather the persistent way we talk about
the complex relationship between families and law. As my contribution to the centennial
discussion on law then and now, I want to offer a speculative synthesis suggesting that we
have inherited a way oftalking about American family law that fundamentally frames our

disputes over marriage, divorce, child custody, abortion, and the other contested family

questions of our time. I want to argue that at any particular time during the last century,

this way of talking about family law highlights certain issues while marginalizing or even

silencing others.

This persistent discourse of domestic relations has two critical components. First, we

tend to talk about family law problems in metaphoric terms of balancing. Teeter-totter-

like, we speak ofbalancing individual and family rights and autonomy with state interests,

legitimation, and regulation. Examples fill every chapter of the domestic relations texts

used in classes in 1894 and 1994: the right to wed and the state regulation of marital

choices, the right to leave a troubled marriage and the state interests in family

preservation, the right to a child and the public interest in child protection, and so forth.
1

* Associate Professor of History and Law at Case Western Reserve University. B.A., 1972,

University of California—Santa Barbara; Ph.D., 1979, Brandeis University.
1. For an insightful discussion of the use of such metaphors in family law, see Lee E. Teitelbaum,

Family History and Family Law, 1985 Wis. L. REV. 1 135. For a useful discussion of literature on legal

balancing, see Stephen E. Gottlieb, The Paradox ofBalancing Significant Interests, 45 HASTINGS L. J. 825

(1994).



274 INDIANA LAW REVIEW [Vol. 28:273

Second, I think that the sides shift in these rhetorical balancing acts because of critical

timebound elements that spring from the constant reality of American family diversity.

That is, now, as at any moment in the past, there is no single Americanfamily. Quite the
contrary, there are, and always have been, a wide range of family forms and choices.

Debate focuses on the legal standing of these various family forms, and it generally

emerges in contests between what I would call functional families and ideological

families. Functional families are those various ways women, men, and children actually

live together; ideological families are the forms of family life recognized in the public

narratives ofthe law.
2
Public narratives are the official stories embedded in statutes, legal

doctrine, administrative directives, and the other dominant forms ofpublic authority. The

two do not always coincide, and they often occupy different sides of family law's teeter-

totter. Clashes over them provoke debate and controversy because they raise the basic

questions of family law: What is a legal family? What are the responsibilities of family

members to each other and to the community? Who can marry and form a legal family?
Who ought to be recognized as a parent? Answers to these questions repeatedly upset the
legal balance and spill out into the public sphere. They did in 1894; they do so now.

I want to use a couple ofexamples to illustrate the character of the dominant domestic

relations discourse, and in so doing, suggest some of its implications. I want to do so by

briefly outlining the shifting debates about marital choice and child custody over the last

hundred years. I think these debates occurred in two distinct timebound moments. In

other words, I want to periodize the history of family law over the last century to suggest

that the law's dominant discourse had timebound dialects.
3 The first era stretched from

the late nineteenth century to about the Great Depression; the second, from the depression

into our time. In each era, dominant approaches defined family law by using clashes

between functional families and ideological families to set the law's balance and frame

lay and professional debate about family regulation. By talking in admittedly general
terms about marital choice and custody in these two eras, I want to sketch quite broadly

some thoughts on what has changed in family law, what has not changed, and the meaning

of both change and continuity.

By adopting a periodized comparison, I will necessarily emphasize difference over
similarity. And so before looking at these two eras, I want to add an aside on family law
continuity. As evident in my initial simple comparisons of the 1890s and 1990s,
continuity as well as change have marked the history of American family law over the last

century. What Willard Hurst calls "drift" is always at play in every legal category. Drift,

I take to mean the on-going elaboration of dominant legal trends.
4 A catalogue of family

law drift is quite lengthy: the legal individualization of family members, the reliance on

experts in resolving family disputes, the use and legitimacy of divorce, the codification

2. For a helpful discussion of functional families, see Martha L. Minow, Redefining Families: Who 's

In and Who 's Out? 62 U. COLO. L. REV. 269 (1991). For an analysis of public narratives, see Margaret R.

Somers, Narrativity, Narrative Identity, and Social Action: Rethinking English Working-Class Formation, 16

Soc. Sci. Hist. 591 (1992).

3. I do so in agreement with Peter Stearns that periodization is one of the most significant forms of

analysis that historians can contribute to debates about public policy, History and Policy Analysis: Toward

Maturity, Pub. HISTORIAN 5 (Summer 1982).

4. James Willard Hurst, Law and Social Order in the United States ch. 5 ( 1 977).



1 995] AMERICAN FAMILY LAW, 1 890- 1 990 275

of key family law rules, the bureaucratization of family law institutions, the ever greater

segmentation and refinement of domestic relations rules, and the federalization of family

law. These trends were evident in 1 890, and they are even more visible today. They are

clearly critical to the character of family law at any particular time and over time. But I

think that in a symposium like this one, selective differences are more revealing than these

continuities. In examining these differences, I rely on a central tenet of comparative

analysis advanced by French historian Marc Bloch. He argued that the most revealing
comparisons proceeded from surface sameness to underlying differences.

5
In terms of

family law, I think that both the importance placed on families and the tendency to discuss

family law in terms ofbalancing provided the surface sameness, while the realities ofand

reactions to family diversity reveal underlying differences between recent eras in family

law. In other words, I want to suggest that what is contested, and why, helps us

understand the lineaments of family law and better equips us to analyze both legal

continuity and change.

I. Family Law Paternalism

When students began learning the law at Indiana University School of Law in 1894,
domestic relations was a relatively new category of American law. Its first major

compilation, James Schouler's Law of Domestic Relations, had been published only
twenty years earlier. Until then, family law had been scattered about the legal landscape.

Categorization not only brought rules together, but marked off the family as a particular

realm of legal experience.
6
Nevertheless, it was a realm in turmoil. Many of domestic

relations law's key doctrines were being contested, revised, and even repealed.

Legal conflict was a flank of the larger social crises of the era. In a time

overwhelmed by economic and social upheaval, panic about the family grew. Fear spread

that urbanization, industrial capitalism, and massive immigration were undermining the

nation's homes and thus, the republic itself. Rising divorces, delayed marriages, shrinking

birth rates, growing juvenile delinquency, and the proliferation of family forms fed fears

that the family was disintegrating. 7

These fears resulted in a "moral panic" over the family. That is, a moment in time

emerged when widespread fears and anxieties crystallized on a specific object of

concern—the family. This moral panic became the single most important source of
family law reform. Equally important, during such panics popular fears are often

displaced onto folk devils—individuals and groups singled out as particular sources of
evil.

8
That is precisely what occurred during this family crisis. Families and family

5. For a discussion of Bloch's work, see William H. Sewell, Jr., Marc Bloch and the Logic

ofComparative History, 6 HlST. AND THEORY 208 (1967).

6. For an analysis of the creation of domestic relations as a legal category, see Michael Grossberg,

Governing the Hearth: Law and the Family in Nineteenth Century America ch. 8 (1985); Carl

Schneider, The Next Step: Definition, Generalization, and Theory in American Family Law, 18 MICH. J. L.

Reform 1039(1985).

7. Grossberg, supra note 6, at 9- 1 2.

8. For a discussion of moral panics and folk devils, see STANLEY COHEN, FOLK DEVILS AND MORAL

Panics: the Creation of the Mods and Rockers (1980).



276 INDIANA LAW REVIEW [Vol. 28:273

practices outside the majoritarian norm were labeled as deviant and targeted for sanction.
Groups of self-proclaimed family savers, like the National League for the Protection of
the Family, demanded social order, cultural uniformity, and the maintenance ofwhat they
considered traditional values. As Elaine May argues, "Victorians waged a vigorous
campaign to bring outsiders into the fold. They used every means of persuasion or
coercion within their power to encourage, or even force, conformity to the code."9

Many of those means entailed greater state regulation. Assuming a fundamental
division between the public and the private, reformers demanded state intervention into

what had been considered the family's autonomous decisions about work, education,

health, and welfare. Their demands assumed that families should no longer be left as free

to govern themselves, and that American households needed both the guidance and the

agents of an increasingly therapeutic state. As Marilyn Brady explains:

Declaring a crisis in the American family and a threat to national greatness,

some reformers sought to insure that couples would continue to get married, to

stay married, and to have as many children as had the couples of a generation
earlier. They supported legislation to tie women more closely to the home. In
their view, the government needed to step in to save the family from sons and

daughters unwilling to duplicate their parents' lives and from those who had
always lived outside the middle class.

10

Law became a critical arena during this moral panic. Charges that nuptial and family
diversity undermined the nation's homes led to demands for greater policing of domestic

relations. But family law did not merely mirror the social crisis. Instead, as always, an

interactive process between law and society made domestic relations both a source and

a product of the debates of the period. Family saving was translated into the already

functioning discourse of domestic relations. A spate of paternalistic laws and doctrines
tilted family law away from individual and family rights toward public regulation. A new
public narrative framed debate about family law among litigants, lawyers, judges, and

laypeople. Its dominant story line emphasized the need for a more uniform family

ideology and the disastrous consequences of recognizing functional families that did not

conform to those standards. As a result, family law contests were expressed primarily as

battles between a dominant paternalism and a deviant libertarianism.

Consequently, during the years around the law school's founding, family law debate

focused on the continued legitimacy of statutes and doctrines from the antebellum era that

had generally tolerated, if not actually fostered, family diversity. From the creation of

common law marriage and the granting of inheritance rights to illegitimate children to the
limited restrictions on abortion and the conferral of property rights on married women,

family law created in the years from the American Revolution to the Civil War tended to
legitimate functional families. The law's public narrative, in other words, was generally

inclusive rather than exclusive. It projected multiple images of legitimate families and

9. Elaine T. May, Great Expectations: Marriage and Divorce in Post-Victorian

America 21 (1980).

1 0. Marilyn D. Brady, The New Model Middle-Class Family, in AMERICAN FAMILIES: A RESEARCH

Guide and Historical Handbook 106 (Joseph M. Hawes & Elizabeth I. Nybakken eds., 1991). See also
Robert L. Griswold, Fatherhood in America: A History 31-32 (1993).



1 995] AMERICAN FAMILY LAW, 1 890- 1 990 277

family members.
11 The moral panic experienced by countless turn-of-the-century

Americans eroded the confidence critical to that tolerant family law. Instead, reaction set

in and upset the law's balance. As this school was founded, reaction was at high tide. We
can see its effects in the way people of the period talked about the law of marriage and
custody.

A. Marriage

Demands for greater regulation of marriage topped the agenda of family savers.
Fearing the social consequences of marital failure, they wanted to preserve the family by

limiting the marital freedom secured during the antebellum era. Law framed their efforts.
"A good marriage code," sociologist George Howard argued in 1910, "tends to check
hasty, clandestine, frivolous, and immature wedlock. A bad marriage law favors such
unions, which so often end in divorce court."

12 The triumph of a participant run marriage

system based on individual choice and romantic love had helped spawn the tolerant

marriage code now under attack. 13 Agitation for regulation challenged that toleration with
the assertion that getting married should be considered less of a private and more of a

public matter. The demand had clear sources in both popular and legal practice.

Continuing earlier practices, countless individuals in the late nineteenth and early

twentieth centuries claimed the right to wed persons of their choice and to gain legal
recognition for their unions. The most dramatic, and most successful, example occurred

in the post Civil War South as thousands of freed slaves roamed the countryside to reunite
broken families and cover extra-legal slave unions with law.

14
Individual crusades like

this one had utilitarian and symbolic goals. Marriage gave couples property, residential,

and other rights; it also secured the public stamp of approval for their unions. And for
the same reasons, denial barred couples from those legal privileges and symbols ofpublic

acceptance. Denial became the dominant discourse of the day. It tilted the balance in the

law away from an earlier emphasis on individual choice and marital pluralism toward new

expressions of state regulation and nuptial uniformity.

One individual crusade for marital freedom led to the most important and most telling

judicial invocation of public matrimonial authority in Maynard v. Hill} 5 David S.

Maynard, a founder of the State of Washington and the city of Seattle, wanted to rid

himself of his first wife. The territorial legislature of Oregon, which had jurisdiction over

what would become Washington state, complied. When the United States Supreme Court
later confronted a challenge to the legitimacy ofthat act, Justice Stephen Field responded

with a ringing endorsement of state regulatory authority over marriage:

1 1

.

These points are drawn generally from GROSSBERG, supra note 6. As in so much of American law,

race was the major exception to this trend. The ban on slave marriage was the most grievous denial of marital

freedom in the era.

1 2. Quoted in GROSSBERG, supra note 6, at 85.

13. See Karen Lykstra, Searching the Heart: Women, Men, and Romantic Love in

Nineteenth Century America (1989).

14. See Leon Litwack, Been in the Storm So Long: The Aftermath of Slavery ch. 5

(1979).

15. 125 U.S. 190(1888).



278 INDIANA LAW REVIEW [Vol. 28:273

It is also to be observed that, whilst marriage is often termed by text writers and

in decisions of courts a civil contract—generally to indicate that it must be
founded upon the agreement of the parties, and does not require any religious

ceremony for its solemnization—it is something more than a mere contract. The
consent of the parties is of course essential to its existence, but when the contract

to marry is executed by the marriage, a relation between the parties is created

which they cannot change. Other contracts may be modified, restricted, or
enlarged, or entirely released upon the consent of the parties. Not so with

marriage. The relation once formed, the law steps in and holds the parties to

various obligations and liabilities. It is an institution, in the maintenance of

which in its purity the public is deeply interested, for it is the foundation of the

family and of society, without which there would be neither civilization nor

progress.
16

Maynard expressed the changing tenor of debate about marriage in the era. Still
considered a "civil contract," the legal emphasis shifted from the second word to the first.

As Walter O. Weyrauch and Sanford Katz explain, "[t]he case is cited in the context of
constitutional attacks on legislation having an impact on marriage .... In actual practice,

consequently, Maynard can be cited whenever an argument in support of the police power

of the state to regulate marriage is made."
17

The major legal debates about marriage took place in the states, which retained

primary control over domestic relations. Legislators took the lead in trying to change the

law's balance. They drafted marriage codes that sought to stifle marital diversity by

making it harder to wed. By the 1 920s, every state had revised its law to impose greater
controls on the right to marry. The new codes limited both who could wed and whom a
person could wed, and thus denied legitimacy to functional families that considered the

unions that created them legitimate.

Though there were significant jurisdictional variations, marriage law reform included

a number of common features and common themes. George Howard, for instance,
expressed the breadth of the shifting emphasis in marriage law when he campaigned

against retention of the traditional nuptial ages of twelve for females and fourteen for

males. "Majority is the law's simple device for securing mental maturity in the graver

things of life," he argued. "Is not wedlock as serious a business as making a will or

signing a deed?"
18 As a result of such arguments, states gradually raised the age of

consent to marriage, most commonly to sixteen for females and eighteen for males.

Even more telling were nuptial restrictions inspired by the transmission of disease.

A major legal departure, they arose from a new assumption that physical defects in

16. Id. at 210-11.

17. Walter O. Weyrauch & Sanford N. Katz, American Family Law in Transition
59-60 (1983). See also Stephen H. Hobbs, In Search of Family Value: Constructing a Framework for

Jurisprudential Discourse, 75 MARQ. L. Rev. 529, 544-56 (1992).

1 8. Quoted in Fred S. Hall & Elisabeth W. Brooke, American Marriage Laws in Their Social

Aspects: A Digest 18(1919). See also Frederic J. Stimson, American Statute Law: An Analytical

and Compared Digest 665-66 (The Boston Book Co. 1 886); Anne G. Spencer, The Age ofConsent and Its

Significance, 49 FORUM 406 (1913).



1 995] AMERICAN FAMILY LAW, 1 890- 1 990 279

themselves abrogated nuptial rights because the state was obliged to defend itself against
unhealthy offspring and the pollution of the marriage bed by disease. In 1910, political

scientist Frederic Stimson pinpointed the essence of the change: "To-day we witness the
startling tendency for the State to prescribe whom a person shall not marry, even if it does
not prescribe whom they shall. The science of eugenics . . . will place on the statute
books matters which our forefathers left to the Lord."

19

The eugenics crusade, which crested between 1885 and 1920, had a direct and

longlasting effect on marriage law. It helped tilt the legal balance toward regulation and

uniformity. Under the sway of eugenic beliefs, restraints on individuals afflicted with

mental and physical maladies reoriented the traditional physiological impediments to

matrimony. The additions ensured that nuptial prohibitions contained explicit medical as

well as contractual means ofassessing nuptial fitness. By the 1930s, forty-one states had
enlarged the common law tests ofmental capacity for marriage with statutes that used the
terms "lunatic," "feebleminded," "idiot," and "imbecile" to deny marital rights. The acts,

and complementary judicial opinions, indicated a determination in this era to abrogate the

common law defense of contractual nuptial rights in reaction to a perceived biological
threat to families and public safety.

20 As the Connecticut Supreme Court declared in
1905:

Laws of this kind may be regarded as an expression of the conviction ofmodern
society that disease is largely preventable by proper precautions, and that it is not

unjust in certain cases to require the observation of these, even at the cost of

narrowing what in former days was regarded as the proper domain of individual

right.
21

Similar fears spawned the creation of venereal disease testing requirements for brides

and grooms. In 1913, Wisconsin became the first state to require that prospective grooms

submit to medical tests. Rebuffing challenges that the act interfered with religious

freedom and unreasonably restrained individual rights, the state supreme court upheld the

law and declared that "[sjociety has a right to protect itself from extinction and its

members from a fate worse than death."22 Despite complaints about unreliable tests and

continued charges that they violated individual rights, other states followed suit. Disease-

inspired fears, improved detection, greater documentation, and growing popular faith in

therapeutic regulation helped make prenuptial medical examinations standard American

experiences. And to emphasize the point, by the 1930s, over twenty-six states and
territories had imposed criminal penalties on those who wed while infected.23

1 9. Frederic J. Stimson, Popular Law-Making: A Study of the Origin, History, and Present

Tendencies of Law-Making by Statute 327 (1910).

20. See 1 CHESTER VERNIER, AMERICAN Family Laws 1 90-95 ( 1 93 1 ); Sydney Brooks, Marriage and

Divorce in America, 84 FORT. REV. 329, 333 (1905); Eugenic Marriage Laws, 105 OUTLOOK 342 (1913).

2 1

.

Gould v. Gould, 6 1 A. 604, 605 (Conn. 1 905).

22. Petterson v. Widule, 1 47 N.W. 966, 968 (Wis. 1 9 1 4).

23. Fred S. Hall, Medical Certification for Marriage: An Account of the Administration

of the Wisconsin Law (1921); Fred S. Hall & Mary Richmond, Marriage and the State 58-63 (1929).
See also 1 VERNIER, supra note 20, at 199-203; Charles H. Haberich, Venereal Disease in the Law ofMarriage

and Divorce, 37 AM. L. REV. 226 (1903); Jacob Lippman, The Sexual Aspect ofJuridical Marriage, 65 AM. L.



280 INDIANA LAW REVIEW [Vol. 28:273

Sterilization, the most extreme eugenic measure, crowned the campaign to curtail the

nuptial freedom of the unfit. By permanently preventing the mentally, physically, and
morally defective from procreating, reformers hoped to allow these unfortunates to rejoin

society and enjoy the solace and controls of matrimony. By 1931, twenty-seven states
had enacted some form of mandatory sterilization. Despite fierce debate over the

legitimacy of the acts, sterilization received the imprimatur of the Supreme Court in 1927,

when Justice Oliver Wendell Holmes, Jr. approved the sterilization of eighteen year old
Carrie Buck, a mentally impaired Virginia woman. Voicing the fears of the day and the
determination to tilt the law toward greatly increased public surveillance of marriage,

Holmes declared, "It is better for all the world, if instead ofwaiting to execute degenerate

offspring for crime, or to let them starve for their imbecility, society can prevent those

who are manifestly unfit from continuing their kind."24

The most direct attack against functional marriages came in challenges to the

legitimacy of common law marriage. A creation of the antebellum era, common law
marriage allowed couples to form their own binding unions without benefit of formal
ceremonies and in defiance of state marital regulations. It became the symbol of

regulatory laxity for those who feared marital freedom and nuptial diversity. Reformers
charged it with spawning social anarchy and untrammeled individualism, and they

dismissed pleas that common law marriage protected children from illegitimacy and
women from sexual exploitation. Such sentiments had been convincing in the previous
period, but now they went unheeded. Instead, reformers contended that common law
marriage protected the disreputable acts of an immoral minority and bred blackmail,

fraudulent estate claims, and sexual license. Demanding a new legal balance that would
deny legality to such unions, Howard claimed:

In no part of the whole range ofhuman activity is there such imperative need of

state interference and control as in the sphere of the matrimonial relations. In

this field as in others we are beginning to see more clearly that the highest
individual liberty can be secured only when it is subordinated to the highest

social good.
25

By the end of the 1920s, the states were evenly divided between those who allowed

common law marriages and those who forbade them. At the same time, laws requiring
a marriage license steadily spread. By .1932, all but three states required licenses.

26

Complementary changes in divorce law also helped rephrase marital debates.

Responding to the fact that the United States had the highest divorce rate in the world,

state legislatures tried to stem the tide by making it more difficult to end a marriage.

Reform emphasized marital permanence with the enactment of restrictions on remarriage

after divorce, longer residence requirements, and reduced grounds for divorce. Equally

important, divorce statutes retained the commitment to the fault standard. A marriage

Rev. 136(1931).

24. Buck v. Bell, 274 U.S. 200, 207 (1927). See also MARK S. HALLER, EUGENICS; HEREDITARIAN

Attitudes in American Thought 130-41 (1963).

25. 3 George Howard, A History of Matrimonial Institutions 184 (1904).

26. Otto E. Koegel, Common Law Marriage, 4 Fam. 1 72 ( 1 923); Fred S. Hall, Marriage and the Law,

1 60 Modern Am. Fam., Annals 110-15 (1932).



1995] AMERICAN FAMILY LAW, 1890-1990 281

would be terminated only when a spouse was proven to have committed a serious
matrimonial crime. Such a tilt in divorce law echoed the new balance in marital reform.27

The relationship between the era's dominant domestic relations discourse and

marriage law reform was quite clear. The two united to declare that the law ought to

assert uniform ideas of legitimate marriages to an increasingly diverse populace. As a
result, the law broadcast a more precise and uniform ideological conception of fit marital

partners than ever before.
28 Though much of the new code became widely accepted,

almost every aspect of it was contested and often with success in many jurisdictions.
However, those contests took place within a debate framed by the opposition to diversity.

The tilt toward regulation put defenders of marital freedom on the defensive. Yet,

as the balance metaphor suggested, the minority always retained a place in the debate, and

their voices were heard. Indeed, many states retained vestiges of the old system. For
example, in 1930, twelve states still retained the traditional Anglo-American marriage

ages of fourteen for males and twelve for females, and only twelve states required as

much as a five-day waiting period between application for a marriage license and
performance of the ceremony. Tellingly, the "Marriage and Marriage License Act"

proposed by Commissioners on Uniform State Laws in 1 907 had only been adopted in

Wisconsin and in modified form in Massachusetts by 1930. By 1932, only fourteen states
had time limits restricting hasty marriages. Equally important, the courts continued their

established policy of refusing to declare marriages void because a statutory rule had been

violated.
29 Nor did the changes fostered by the rephrased debate stem the rising divorce

rate or eliminate marital experimentation. In fact, one development of the age, the

tendency of well-educated women to delay or even forego marriage, was simply beyond
the law's reach.

30
Equally significant, between 1870 and 1920, the number of divorces

granted nationwide increased fifteen fold. By 1 924 one marriage out of every seven

ended in divorce. Legal restrictions made little difference when many couples were

willing to participate in a charade to meet legal requirements for divorce in order to

liberate themselves from unsatisfying marriages.
31

The trend injudicial interpretation,

however, was to dilute stringent legal statutes. In 1931, only seven states specifically

permitted divorce on the grounds of marital cruelty, but judges in most other jurisdictions

broadly interpreted laws permitting divorce on grounds of cruelty to encompass expansive

notions of mental cruelty. Such individual and institutional actions expressed a

continuing commitment to nuptial freedom and to the recognition of nuptial diversity and

27. On the relationship between marriage and divorce, see Lenore J. Weitzmann & Ruth B.

Dixon, The Transformation of Marriage Through No-Fault Divorce: The Case of the United States, in

Marriage and Cohabitation in Contemporary Societies 143 (John M. Eekelarr & Sanford N. Katz eds.,

1980).

28. On these general changes, see GROSSBERG, supra note 6, at chs. 3-4.

29. Hall & Brooke, supra note 1 8, at 1 8-21 ; Joseph H. Beale et al., Marriage and the Domicil, 44

HARV.L. REV. 501 (1930-31). See also 1 VERNIER, supra note 20, at 15. See generally Hall & RICHMOND,

supra note 23.

30. See Brady, supra note 10, at 105.

3 1

.

Steven Mintz & Susan Kellogg, Domestic Revolutions: A Social History of American

Family Life 109-10(1988).



282 INDIANA LAW REVIEW [Vol. 28:273

functioning marriages. These lay and professional actions kept the law from tilting even

more toward restriction.32

But those who continued to champion marital freedom also faced sanctions for their
deviancy. Two groups incurred formal ostracism as "folk devils"—interracial couples and
Mormon polygamists. They became the "Other" of marriage law: persons used in family
law debates to define unwanted marital partners and unwanted marriages. Both groups

also incurred the greatest state sanctions of the period. Pushed to the margins, their fate

illustrates the tenor of marriage law debates in the era.

Bans against interracial marriage proliferated in the South and West and some
Midwestern states. From 1880 to 1920, when white racial phobia reached unprecedented
heights, twenty states and territories strengthened or added antimiscegenation laws.

Moreover, though five states had repealed the ban during the 1880s, none did so from

1 890 to 1 920.
33

Racism combined with new eugenic fears to support curbs on individual
marital choice. The Virginia statute, for example, justified the ban because it "preserved

the racial integrity of its citizens" and prevented "the corruption of blood," a "mongrel

breed of citizens," and the "obliteration of racial pride."
34 By 1910, Harvard Professor

Frederic Stimson declared: "Marriage may be forbidden or declared null between persons
of different races, and the tendency to do so is increasing in the South, and is certainly not

decreasing in the North. Indeed, constitutional amendments are being adopted and

proposed having this in view, 'the purity of the races.'"
35

That same year, in his widely

read study of the color line, muckraker Ray Stannard Baker explained the popular

prejudices that undergirded the ban: "Although there are no laws in most Northern states

against mixed marriages, and although the Negro population has been increasing, the

number of marriages is not only not increasing, but in many cities, as in Boston, is
decreasing. It is an unpopular institution."

36
Almost two-thirds of the nation codified its

unpopularity.

By 1916, twenty-eight states and territories prohibited some form of interracial
marriage, creating the most racist nuptial code in American history. And the ban
produced the widest number of marital restrictions. Laws protected racial purity by

banning the marriage of whites with African-Americans, Asians, and Native Americans.

Recognizing the legality, indeed the legitimacy, of interracial unions would, in the view

of many white critics, have offered at least tacit support for racial and social equality in

domestic relations. As racial segregation became even more inflexible with the

appearance of "Jim Crow" laws, marriage was singled out for the most stringent

restrictions. More states banned interracial marriage than any other form of racially

related conduct. A 1910 study of racial discrimination categorically labeled the ban as the
one restriction "which has not been confined to the South, and which has, in a large

measure, escaped the adverse criticism heaped upon other race distinctions."
37

32. Id. at 109-10, 127.

33. 1 Vernier, supra note 20, at 204-09.

34. Stimson, supra note 1 9, at 3 1 3.

35. Id.

36. Quoted in Charles S. Magnum, Jr., The Legal Status of the Negro 99 (1940).

37. Gilbert T. Stephenson, Race Distinctions in American Law 78 (1910). See also Felix

Cohen, Handbook of Federal Indian Law 79 (1942); Grossberg, supra note 6, at 136-40; Note,



1 995] AMERICAN FAMILY LAW, 1 890- 1 990 283

At the same time, the greatest use of federal power in nineteenth century domestic
relations law occurred with the campaign to eliminate polygamy among the Mormons, the
last major remnant of antebellum Utopians like the Shakers and the followers of John

Humphrey Noyes who had experimented with marital forms. Polygamy kindled a bitter
national debate that tested the legal commitment to monogamy, and family savers
responded in kind. Upset at the ineffectiveness of statutory attempts to stifle the practice,

President Ulysses S. Grant complained ofthe failure to destroy what he termed a "remnant

ofbarbarism, repugnant to civilization, to decency, and to the laws of the United States."38

Congress responded in 1874 with the Poland Act which increased federal control over

territorial courts and juries in Utah by limiting the procedural rights of indicted Saints. 39

The first major legal test ofthe campaign came four years later in Reynolds v. United

States.
AQ

Chief Justice Morrison R. Waite eliminated the one foundation on which an

alternative to monogamy might have received constitutional protection: the right to
religious liberty. While fully subscribing to the constitutional prohibition on persecuting

individuals for their religious beliefs—which he termed "opinion"—Waite ruled that
Congress could punish subversive and antisocial "acts." He labeled polygamy "an odious
practice" and rejected Reynolds' attempt to have it classified as a constitutionally

protected theological belief. The ChiefJustice used revealing analogies to make his point

and underscore the folk devil status of the Mormons:

Suppose one believed that human sacrifices were a necessary part of religious

worship, would it be seriously contended that the civil government under which

he lived could not interfere to prevent a sacrifice? Or if a wife religiously

believed it was her duty to burn herself upon the funeral pile of her dead

husband, would it be beyond the power of the civil government to prevent her

carrying her belief into practice?
41

Waite also relied on the traditional Anglo-American prohibition ofbigamy to denounce

plural marriage as illegal and un-American. Furthermore, he endorsed a broad definition

of state nuptial authority by placing it "within the legitimate scope of the power of every

civil government to determine whether polygamy or monogamy shall be the law of social

life under its dominion."
42 To permit plural marriage, he concluded, would "make the

professed doctrines of religious beliefs superior to the law of the land, and in effect to

permit every citizen to become a law unto himself."
43 The court would not accept such

an extension of nuptial freedom.

Reynolds cleared the way for a renewed assault on the Mormon theocracy. Further
congressional legislation, most notably the Edmunds-Tucker Act of 1887, hobbled the

Saints by criminalizing cohabitation with more than one woman, banning advocates of

Intermarriage with Negroes—A Survey ofState Statutes, 13 V~A. L. REG. (n.s.) 311,311-12 (1927).

38. Quoted in IX A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 4105 (James D.

Richardson ed., 1897).

39. Poland Act, ch. 469, § 4, 18 Stat. 253, 254-55 (1874).

40. 98 U.S. 145(1878).

41. Id. at 166.

42. Id.

43. Id. at 167.



284 INDIANA LAW REVIEW [Vol. 28:273

polygamy from juries, authorizing the annulment of the incorporation of the Mormon
church and the confiscation of its assets, and imposing test oaths of opposition to

polygamy for territorial citizens.
44

Congress rejected attempts at statehood to retain its

power over the sect. In 1 885, the Supreme Court endorsed much of the legislative assault
with the declaration that the cohabitation of a man and more than one woman "is not a
lawful substitute for the monogamous family which alone the statute tolerates."45 By the
time this law school was founded, the campaign was at its zenith. Criminal prosecutions

of almost 1300 Saints, financial destruction, and promise of continued federal and local

assaults overcame the Saints' resistance. The Mormon leadership renounced polygamy,
and with a constitutional ban, Utah finally achieved statehood in 1 896.

The battle with the Mormons allowed the American legal system to arm itself with
unusual power to enforce the majoritarian allegiance to monogamy. In a society

increasingly obsessed by fears about family life, polygamy came to be seen as such a
monumental menace to the nation's households that it encouraged an unparalleled federal

intervention into the internal governance ofa territory. Charles S. Zane, who had presided
over many polygamy trials as a federal judge, explained why in the 1891 Forum: "The
immediate effects of the law often appeared very sad, and, to justify it, it was necessary

to look away, and ahead to a social system with a family consisting of one husband and

one wife and their children, and the affections that arise from such relations."
46

Women and men who entered interracial and polygamous marriages became the folk
devils of marriage reform because they were depicted as the most extreme consequences

of marital freedom. As folk devils they were used repeatedly to legitimate the new
ideological conception of marriage that tilted the law toward restrictive regulations.

B. Custody

Domestic relations' dominant discourse also framed debates about custody law during

the years surrounding the law school's founding. The moral panic engulfed all

discussions of family law, including the rules governing parents and children. Concern

about disorder in the nation's families flowed not just from mounting fears about

marriage, but also from evidence of high rates of infant mortality as well as child abuse,

delinquency, and neglect. And critically, anxiety arose amidst what Viviana Zelizer calls
the "sacralization" of children, a view of children emphasizing their economic uselessness

and their emotional pricelessness. Child labor, for instance, seemed to violate both

childhood innocence and degrade their sentimental worth.
47

Calls for greater regulation

44. Edmunds-Tucker Act, ch. 397, §§1,2, 26, 24 Stat. 635, 635-41 (1887) (repealed 1978).

45. Cannon v. United States, 1 16 U.S. 55, 72 (1885).

46. Charles S. Zane, The Death of Polygamy in Utah, 12 FORUM 368, 371 (1891-92). See also

GROSSBERG, supra note 6, at 120-26; Carol Weisbrod & Pamela Sheingorn, Reynolds v. United States:
Nineteenth Century Forms ofMarriage and the Status of Women, 10 CONN. L. REV. 828, 828-58 (1978). For

a Mormon view of the conflict, see Edwin Brown Firmage & Richard Collin Mangrum, Zion in the

Courts: A Legal History of the Church of Jesus Christ of Latter-Day Saints, 1830-1900, Pt. II

(1988).

47. Viviana A. Zelizer, Pricing the Priceless Child, The Changing Social Value of

Children chs. 1-3(1985).



1 995] AMERICAN FAMILY LAW, 1 890- 1 990 285

of parenthood echoed demands for marriage reform. Self-described child-savers heeded

those calls. As Brady contends:

Homeless, orphaned, and neglected children caught their attention. Inspired by

images of family life gone awry, these reformers joined the temperance

movement, campaigned for 'moral purity,' and promoted 'voluntary

motherhood.' The drunkard and his family, the seducer of the prostitute, and the

parents who sent their children into factories to work all seemed to require
government intervention. Some reformers believed that the government should
step in to enforce the rights of wives and children and protect them from abuse

by husbands and fathers.
48

Like the marriage crusade, demands for greater policing ofthe nation's homes found

legal translations in calls for rearranging the balance between family autonomy and state

regulation. And, a tilt toward greater public regulation expressed a determination to limit

family diversity and more precisely define a fit parent. Paternalism became the basic

theme in discussions about the law of parent and child. Robert Griswold explains the

complications of the era's state paternalism by suggesting that:

Reformers at the turn of the century sought to preserve the family as an

economically private unit of breadwinning fathers and home-centered mothers.

In short, the image ofa state invasion of the family obscures rather than clarifies

what took place. The state intervened not to undermine the family, but, rather,

to foster its economic independence and its functional interdependence. It could

not do so, however, without impinging on the power of individual husbands and

fathers.
49

A series of paternalistic laws from bans against children joining the circus to compulsory
school laws followed from the determination to impose uniform standards on families.

50

Child custody became a critical subject in these dialogues. Most critically, the tilt

toward paternalism, ironically, helped make maternal preference the dominant public

narrative of custody law. The power ofmaternalism in the period flowed from the reality,

as Molly Ladd-Taylor has argued, that motherhood "was a central organizing principle

of Progressive-era politics."
51 As she makes clear in a study ofwelfare reforms of the era

such as mothers' pensions:

The persuasive appeal of maternalism as a political movement of Anglo-

American women in the Progressive era is precisely what now seems its
weaknesses: the presumption of gender difference and the repression of

diversity. Despite the differences among them, all maternalists believed that

48. Brady, supra note 10, at 104. For an overview, see Susan Tiffin, In Whose Best Interests?

Child Welfare Reform in the Progressive Era (1982).

49. Griswold, supra note 1 0, at 57.

50. For a discussion of the era, see Michael Grossberg, Children 's Legal Rights? A Historical Look

at a Continuing Legal Controversy, in CHILDREN AT RISK IN AMERICA 1 19 (Roberta Wollons ed., 1993).

5 1

.

Molly Ladd-Taylor, Mother-Work: Women, Child Welfare, and the State, 1 890- 1 930

at 43 (1994).



286 INDIANA LAW REVIEW [Vol. 28:273

women were more nurturing and sensitive to children than men and that the
welfare of children—and therefore the future of the nation—depended on the
preservation of the home. At a time of increasing heterogeneity in family styles

and childrearing practices, both sentimental and progressive maternalists clung

to a singular conception of family life. Elite white women, who despite their
privileges were denied political, economic, and legal rights equal to men of their
class, saw in the defense of 'home* and 'motherhood' a promising source of

dignity and power.
5-

Maternalism became the watchword of custody law. It forced a rephrasing of the

custody law's central doctrine: the best interests of the child rule. A creation of
antebellum judges, the doctrine has always been fundamentally indeterminate. It

demanded that judicial decisions further a child's best interests. By doing so. it ceded
judges wide discretionary power to define those interests and to evaluate parental fitness

accordingly. The doctrine turned custody hearings into narrative competitions in which

individual mothers, fathers, and guardians told stories that tried to discredit their

adversary's parental care while embellishing their own.
53

.And it forced judges to balance

their conceptions of children's interests with their notions of parental rights and state

authority. Maternal preference simplified these contests by providing a new dominant

story line. Compelled to accept the reality that some families would not conform to the

ideologically preferred household of mother, father, and children, custody law debates

focused on family saving through the imposition of maternalist policies on all types of

families and the creation of uniform standards of mothering.""

Defining parenting ever more precisely as a maternal duty tilted the debate against

diversity with a new balance produced by maternal preference. Fathers, of course, felt the

brunt of a maternalist defmition of the best interests of the child. The longstanding

Anglo-American story line that granted fathers superior custody rights succumbed to the

new tale as the balance of the law tilted toward uniformity. As Griswold noted. ''The

language of science and expertise had been appropriated in ways that left fathers ever

more irrelevant to the rearing of their own children. Motherhood was increasingly seen
as a science, fatherhood a seldom discussed art."-

5 By the end of the nineteenth century,
mothers received custody in more than ninety percent of contested cases and most likely,

in informal custody arrangements as well.
56

Fathers, whose parental skill and legitimacy

had been challenged since the early nineteenth century, had been discredited as child-

rearers and reduced in law to a second, and far less preferable, parent. Indeed, single

fathers were labeled as deviant. That process occurred most clearly in the skyrocketing

52. Id. at 201. See also Theda Skocpol. Protecting Soldiers and Mothers: The Political

Origins of the Social Policy in the United States Intro., ch. 8 (1992).

53. On trials as narrative competitions, see Lawrence M. Friedman. Law, Lawyers, and Popular

Culture. 98 Yale L.J. 1559 (1989).

54. Mary Ann Mason. From Father's Property to Children's Rights: The History

of Child Custody in the United States 118-19 (1994).

55. Griswold. supra note 10, at 32.

56. William Goode. after Divorce 29 (1956).



1995] AMERICAN FAMILY LAW, 1890-1990 287

divorce cases of the era. As divorces escalated at an increasingly rapid rate, maternal
custody became a critical family law policy.

Institutionalized through doctrines like the tender years rule, which decreed that
infants and young children needed a mother's care and thus custody, maternalism

provided the dominant definition of parental fitness in this onslaught of cases. For

example, a Wisconsin judge decreed in 1921 that:

For a boy of such tender years nothing can be an adequate substitute for mother

love—for that constant ministration required during the period of nurture that
only a mother can give because in her alone is duty swallowed up in desire; in

her alone is service expressed in terms of love.
57

An Arkansas case the next year revealed the extent of the judiciary's maternalistic
commitments. It dealt with the conduct of Mrs. Crabtree, who had almost murdered her
husband by cutting his throat with a razor blade, slicing through his fingers, and stabbing

him in the back. Nevertheless, the state supreme court separated spousal and parenting

rules to declare, "It does not follow that, because the wife tried to kill him in a fit of anger,

she did not have any parental affection for the children. On the contrary, the record
discloses that she loved them and was properly caring for them."58

Nor was maternal preference merely a judicial creation. Legislators codified the new
tilt in custody law. Equal custody and guardianship rights had been a goal of the women's

rights movements since the first convention in Seneca Falls in 1848. Yet only in this era

did it succeed. By 1936, forty-two states granted mothers equal rights to their minor
children. Though most of the acts did not formally adopt maternal preference, by

abolishing superior paternal rights and demanding that judges be guided by the best

interests of children they ensured that most mothers who conformed to judicial
expectations of proper parents received custody. In this way, custody law promoted

family uniformity by making mothers the primary parents of the young.
59

The new tilt in custody law toward maternalism also encouraged judges and
legislators to break the age-old Anglo-American bond between maintenance and custody.

No longer conceived as mutually dependent rights, support became a separate paternal
obligation. Though difficult to collect, the policy was justified by claims that it enhanced

the work of mothers while forcing men to do their duty. By the mid- 1930s, forty-six
states had passed separate laws criminalizing desertion and nonsupport. Twenty of them

declared failure to support a misdemeanor, fourteen a felony punishable by a year or more

in state prison, and the other states simply labeled nonsupport a crime.
60 Unwed fathers

bore much of the brunt of the new policy. Dismissed out of hand as fit parents, their

obligations to support increased.
61

Maternalist custody framed debates about the legitimacy of all functional families in

the era, not just households engulfed in custody contests between divorcing or unwed

parents. New domestic relations institutions such as juvenile courts and family courts

57. Jenkins v. Jenkins, 1 8 1 N.W. 826, 827 (Wis. 1 92 1 ).

58. Crabtree v. Crabtree, 242 S.W. 804, 808 (Ark. 1 922).

59. 4 Vernier, supra note 20, at 1 8.

60. 4 Vernier, supra note 20, at 66-86.

61

.

MASON, supra note 54, at 56.



288 INDIANA LAW REVIEW [Vol. 28:273

used custody to impose uniformity on the nation's diverse homes. Child-severs paid

particular attention to the offspring of the immigrant and working class. As Herbert Jacob
argues:

[A] public law of child welfare became imposed on the poor that brushed only

lightly upon intact, mainstream families. These latter were governed by a private

family law which less frequently was the object of legislation, but developed

instead through private agreements and the decisions of courts in individual

divorce cases.
62

In doing so, domestic relations law reinvigorated what Jacobus ten Broek has called the

dual system of family law: liberationist policies for middle and upper classes, and

repressive policies for the lower classes and for racial and ethnic groups.
63

In that vein,

a Minnesota juvenile court judge declared:

I believe in this kind of court . . . [i]t is to reach the boy and teach him to follow

in the correct line . . . and if need be, to take him from an immoral and vicious

and criminal environment, even if it takes him away from his parents, that he

may be saved, even though they may be lost.64

As a result, custody law retained its longstanding role as a monitor of families. This

made maternal preference a doubled-edged phrase. It brought functioning families headed

by mothers greater legal recognition, while simultaneously sanctioning constant

monitoring or even removal if those women failed to meet the stringent standards of
motherhood. Consequently, as Mary Ann Mason has suggested:

Social reformers affirmed the family as the appropriate vehicle for raising

children and assisted some mothers in retaining custody of their children. Yet,

child welfare workers, acting as agents of the state, also intervened in families

and took away children from parents they considered unfit. It is here that the

middle-class American-born orientation of the social reformers was most

apparent. There was little tolerance of cultural, ethnic, or class differences,

particularly when it came to alcohol or what was considered immoral sexual

behavior. Single mothers were the main beneficiaries of social and economic

support, but they were also the disproportionate target of social worker

intervention and removal of children. In part this was because single mothers,

as in previous eras, were still more vulnerable to losing their children because

of their inability to support them. But it was also because mothers were held to

a high standard of sexual morality and the lives of poor single mothers were

clearly exposed to social workers.
65

62. Herbert Jacob, Silent Revolution: The Transformation of Divorce Law in the United

States 129-30(1988).

63. Jacobus ten Broek, Family Law and the Poor: Essays (Joel F. Handler ed., 1971).

64. Quoted in DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS

Alternatives in Progressive America 223 (1980) (emphasis in original).

65

.

Mason, supra note 54, at 1 00-0 1

.



1995] AMERICAN FAMILY LAW, 1890-1990 289

In this way, the tilt in custody law made custodial determinations tools to reshape these
families as did innovations ofthe era like mothers' pensions. Where, for example, judges

often refused to use sexual improprieties to deny custody to middle class women, poor
women and women of color often faced such restrictions. In 1920, for instance, Anola
Green, an African-American woman in Washington D.C., could not keep her three
children unless she forced her lover to leave.

66 Women like Green became the folk devils
of custody law. They were used as examples to proclaim the necessity of uniform

conceptions ofmothers. In this way, custody law became a way judges and other officials
policed family deviancy and tried to limit family diversity. The result was to embed
maternalism as the dominant public narrative of custody law and thus broadcast an

ideologically defined mother as the law's singular image of a fit parent.
67

The legal paternalism evident in marriage and custody law was echoed in every

branch of family law during these years. It framed the discourse on everything from

abortion to juvenile justice. Though resisted, the effect was to tilt the law's balance

toward stricter and more restrictive state regulation in an effort to stifle family diversity

by denying legal support to many functional families.

II. Family Law Liberation

Beginning in the twenties and thirties family law debates began to change. As the

commitment to family uniformity and extensive state regulation waned, a new concern

for individual rights and a new tolerance for family pluralism began to be heard. Most
importantly, a growing diversity of family forms challenged the inherited ideological

conception of the household that had been embedded in domestic relations laws. In 1991,

Steven Mintz reported that "[a]s recently as 1960, 70 percent of all American households

consisted of a breadwinner father, a housewife mother, and their children. Today, fewer

than 15 percent ofAmerican households [fit that pattern]."
68

The rise of egalitarian legal

practices and beliefs strengthened calls for change.

The new dialogue provoked questions about the continued legitimacy of the balance

in family regulation inherited from the previous era. By the 1950s, numerous attempts
had begun to liberate individuals and families from the paternalism of the previous era.

They proceeded from new claims voiced in terms of individual rights, autonomy, and

equality. Organized in a different fashion than the earlier family saving campaigns and

using different tactics, particularly a reliance on litigation, new groups forced a change

in family law debates. Indeed, as in the antebellum era, courts became the major forum

for debates about family governance.
69

66. Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family

Violence: Boston, 1880-1960 at 131-32 (1989).

67. For analyses of these trends, see GROSSBERG, supra note 6, at chs. 6-7; MASON, supra note 54, at

ch. 3.

68. Steven Mintz, New Rules: Postwar Families, in AMERICAN Families: A Research Guide AND

Historical Handbook 184 (Joseph M. Hawes & Elizabeth I. Nybakken eds., 1991).

69. For a discussion of the family changes and conflicts of the era, see Mintz & Kellogg,

supra note 3 1, at chs. 7-10.



290 INDIANA LAW REVIEW [Vol. 28:273

As before, the era's domestic relations debates were framed by its dominant
discourse. Calls for change became voices arguing that the law's balance had tilted too
far the wrong way. Inherited family law rules emphasized restrictive regulation and
uniformity, when they ought to promote individual choice and the recognition of a wide
array of functioning families. The new debate was fueled as well by the reality that
family disputes, especially divorce, now dominated many trial court dockets. By the
1980s, almost half of court business involved domestic relations.

70
Equally distinctive,

in a shift from the state and legislative locus of the previous debates, federal appellate

courts became central sites for contention and change during the period. In a series of

dramatic decisions, federal judges revised the discourse of domestic relations by

expanding the law's definition of a family.

Cases like Moore v. East Cleveland11 became emblematic of the shifting balance in

domestic relations prompted by a new acceptance of functioning families. In Moore, the
Supreme Court granted legal recognition to a functioning family of grandparents and

children denied family status by local zoning rules that reserved the area for single

families. Ironically, though suggestively, the Court vindicated functioning families in a

case that arose right next-door to site of the suit in which it legitimated zoning, Euclid v.

Ambler Realty Co.
12 Now the Court asserted: "Ours is by no means a tradition limited

to . . . 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."
73

That had been true too

earlier, but the reality of family diversity had been ignored in an attempt to implement the

previous public narrative by demanding that single families be the proscribed form of

household. Now the new story-line of family law forced a reconsideration of such
judgments. Decisions like Moore challenged restrictive conceptions of the family

promulgated in the previous era, and thus helped tilt the discussion of family law away

from state regulation by valorizing individual choice and family diversity.
74

A. Marriage

Changes in marriage law are apt illustrations of the liberationist tilt in domestic

relations discourse that upset the marriage law balance to create a new era in American

family law. As Marjorie Maguire Schultz argued in 1982, the law during recent decades

"has evolved far toward recognizing the need for private choice and the untenableness of

uniform public policy as a strategy for governing the conduct and obligations of

intimacy."
75 Though many of the restrictions imposed earlier in the century had become

accepted as commonplace, such as licenses and blood tests, others continued to provoke

controversy over the legitimate role of the state in regulating marriage.

70. Mintz & Kellogg, supra note 3 1 , at 228.
71. 431 U.S. 494 (1977).

72. 272 U.S. 365, 388(1926).

73. A/oore,431U.S. at 504.

74. See generally EVA R. RUBIN, THE SUPREME COURT AND THE AMERICAN FAMILY: IDEOLOGY AND

Issues ch. 7(1977).

75. Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy,

70 Cal. L. Rev. 207, 291 (1982).



1995] AMERICAN FAMILY LAW, 1890-1990 291

The most contentious initial issue of the era was the continued ban on interracial

marriages. Like other racist relics of "Jim Crow" America, it became a target of the
egalitarian civil rights movements. Several states repealed the ban in the 1940s and

1950s, and then in 1967 the Supreme Court declared the restriction unconstitutional.

Loving v. Virginia
16
gave marital freedom constitutional sanction. Calling matrimony one

of the "basic civil rights of man," the justices tilted the law's balance against regulation

by holding that unwarranted nuptial restrictions violated the principle of equality in the

Fourteenth Amendment and thus deprived citizens of liberty without due process of law.77

And they were quite willing to offer an expansive definition of such unwarranted curbs. 78

Justice William O. Douglas argued that "[t]he Fourteenth Amendment requires that the
freedom of choice to marry not be restricted by invidious racial discriminations ....

[T]he freedom to marry, or not to marry, a person of another race resides with the

individual and cannot be infringed by the State."
79

Folk devils had become rhetorical

exemplars of rights holders.

Loving had significance far beyond the issue of racial restrictions on nuptial freedom.

It occupied a similar substantive and symbolic place in this era that Maynard v. Hill80 had

filled in the previous one. Loving voiced the new tilt toward contractual freedom that

came to dominate all debates about marriage law. In 1983, Weyrauch and Katz captured

the tenor of this shift when they argued that:

The importance ofLoving should not, however, be seen in its ability to support

a winning argument in court. In our view, its function is to signal potential

changes in the law ofmarriage. These changes favor the increased autonomy of

the parties and the decline of State involvement in marriage.
81

Yet they also suggested that Maynard and Loving formed alternative dialects of nuptial

law that existed for those who would dispute the role of the state in governance ofmarital
relations:

In other words, the power of the State to regulate marriage, following Maynard,

is likely to be strictly construed and not necessarily extended to cover nonmarital

cohabitation. If formal and informal marriage are viewed as being functionally

related, the permissive message ofLoving seems to prevail over restrictive State

regulation insofar as informal marriage is concerned.
82

The increased recognition for functional marriages made possible by the new balance

in the law was evident in cases like Zablocki v. RedhailP In that decision, the Supreme

76. 388 U.S. 1 (1966).

77. Id. at 12.

78. For a useful discussion of this point, see Stephen J. Morse, Family Law in Transition: From

Traditional Families to Individual Liberty, in Changing IMAGES OF THE Family 332-33 (Virginia Tufte &

Barbara Myerhoff eds., 1979).

79. Loving, 388 U.S. at 12 (Douglas, J., concurring).

80. 125 U.S. 190 (1888). See supra notes 15-17 and accompanying text.

81

.

Weyrauch & Katz, supra note 1 7, at 233.
82. Weyrauch & Katz, supra note 1 7, at 233-34.
83. 434 U.S. 374(1978).



292 INDIANA LAW REVIEW [Vol. 28:273

Court struck down a Wisconsin law that denied marital rights to those with existing child
support debts.

84 The statute was a vivid example of the dual system of family law's

continued hold on nuptial regulation as well as its tendency to tilt the regulatory balance

toward marital restrictions. Conversely, its rejection by the Court exemplified the rippling

consequences of labeling marriage a fundamental right. Indeed, Justice John Paul Stevens

voiced the contemporary opposition to class distinctions in a concurring opinion. He
dismissed the Wisconsin statute because it sanctioned the policy declaration that "the rich

may marry and the poor may not. This type of statutory discrimination is, I believe,
totally unprecedented, as well as inconsistent with our tradition of administering justice

equally to the rich and to the poor."
85 Though precisely such a dual system had long been

sanctioned by family law, Stevens' denunciation aptly captured the new marital balance.

As he concluded, "[e]ven assuming that the right to marry may sometimes be denied on
economic grounds, this clumsy and deliberate legislative discrimination between the rich

and the poor is irrational in so many ways that it cannot withstand scrutiny under the
Equal Protection Clause of the Fourteenth Amendment."

86
In a 1979 article on family law

in transition, Stephen J. Morse expressed the priorities sanctioned by the marriage law

discourse created by decisions like Zablocki: "Although 'mismatches' and their

consequences interfere with the goals of traditional family life and are costly to society,

these are costs that should be borne because freedom to marry the person of one's choice

is too precious to abandon."
87

Such sentiments, Milton Regan concluded fifteen years

later, meant that although "the Court has been careful to proclaim the validity of

reasonable regulations that do not significantly interfere with the marriage decision, the

clear message is that individual choice regarding marriage is an exercise of personal

autonomy to which the state should defer in most cases."
88

The new tilt in marriage law had a corrosive effect on all nuptial restrictions as it

refrained debate to give the highest priority to marital choice. The marital hurdles set up

to save the family by the previous generation of domestic relations law reformers began

to be knocked over. Both judges and legislators curtailed their roles as nuptial regulators.

As Weyrauch and Katz noted:

The capacity to marry has been substantially broadened, even at the risk of

greater expenditure of tax funds. Age requirements have been lowered. Mental

competence to marry is assumed, not only in the young, but also in the mentally

retarded, infirm, and senile. For some relationships and some purposes, incest

taboos appear less serious than a generation ago because procreation is no longer

always a primary concern of marriage.
89

Other restrictions on marriage also felt the consequences of the new legal balance as even

bans on prisoner marriages fell off the scales. And, resurrecting the dominant judicial

84. Id. at 377.

85. Id. at 404 (footnotes omitted).

86. Id. at 406 (footnotes omitted).

87. Morse, supra note 78, at 333.

88. Milton C. Regan, Jr., Family Law and the Pursuit of Intimacy 37(1 993).

89. Weyrauch & Katz, supra note 1 7, at 352.



1 995] AMERICAN FAMILY LAW, 1 890- 1 990 293

policy of the antebellum era, "[requirements for marriage that appear on the books are

held to be directory only, addressed to state authorities. Violations that would have voided

marriages in the past are no longer seen as affecting the essence of the relationship."90

Clearly marriage law discourse had a new dominant dialect. It legitimated the removal
of what had come to be considered unreasonable burdens on the decision of individuals

to marry. The major consequence of this liberationist tilt, Regan maintains, is that it

helped create the era's "greater receptivity to private ordering of family matters."
91

The convergence of the judicial designation of marriage as a basic civil right and the

legislative retreat from nuptial regulation found a clear and telling expression in the

uniform statute movement. Since its creation late in the nineteenth century, the drive for

voluntary legal uniformity through state acceptance of model statutes had been a telling

indicator of baseline sentiments in the law. This era was no exception. The Uniform

Marriage and Divorce Act of 1 970
92

eliminated many of the nuptial curbs created in the
previous era such as restrictions on the remarriage rights of the guilty party in a divorce.

In their place, it set only minimal formalities for marriage ceremonies, and even

questioned the utility and desirability of premarital medical examinations. The model

statute also urged that marriages entered into in violation of its requirements be considered

valid unless formally declared void. The import of the act was to suggest that the state

role in matrimony be one primarily of licensing and regulation, not restriction and

monitoring as it had been promulgated in the previous period's uniform marriage laws.
93

The shifting emphasis of marriage law occurred in an era of marital experimentation

reminiscent of antebellum America. As Mintz discovered in 1991, "the number of

unmarried couples cohabiting climbed steeply. Since 1960, the number of unmarried

couples living together has quadrupled."
94

This proliferation offered clear evidence ofthe

continuing popular conviction that legitimate unions could and should exist outside the

established bounds of marriage law. And as in that previous period, a tendency to confer
legal status on a variety of marital arrangements followed from debates that talked of

marriage as more of a private than a public issue. Toleration increased accordingly and

thus fundamentally rephrased the debate over functional marriages.

As a result of the interaction between popular behavior and liberationist legal

developments, informal unions once again tested both the legitimacy and the extent of

marital regulation. Indeed, in yet another development that echoed without replicating the

era in which common law marriage had been created, courts began to increase the
responsibilities of partners in informal yet functioning marriage-like unions. Taking the

lead in this as in so many issues of the era, judges did so by enforcing oral contracts and

implied contracts between couples cohabiting outside of marriage. As Regan noted:

Receptivity to private ordering of the terms of family life is underscored by

greater willingness of courts to enforce marital contracts. Courts traditionally

were reluctant to enforce most antenuptial agreements between spouses for fear

90. WEYRAUCH & KATZ, supra note 1 7, at 352.
9 1

.

REGAN, supra note 88, at 36.

92. 9AU.L.A. 147(1993).

93. For a discussion of the Act, see JACOB, supra note 62, at ch. 5.

94. Mintz, supra note 68, at 185.



294 INDIANA LAW REVIEW [Vol. 28:273

that they might alter the 'essential incidents' of marriage or that provision for

property division or support upon divorce might encourage marital dissolution.

With the decline of consensus about the terms of marriage, and with the

prevalence of divorce, most states have adopted the view that it is unreasonable

to regard marital contracts as contrary to public policy.
95

Palimony cases like Marvin v. Marvin
96

illustrate the shifting balance in the law that

produced the inclination to grant legal status to voluntary assumed marital forms despite

the legal tradition of not enforcing contracts founded upon illegal or immoral

consideration. In supporting Michelle Marvin's claim for economic benefits from her

relationship, the California Supreme Court decided that when couples living together out-

of-wedlock break up, the parties may be entitled to a legally enforceable dissolution of
their property depending on their agreements and expectations concerning their

relationship and property.
97

Conversely, they rejected Lee Marvin's attempt to invalidate

the relationship as an immoral exchange of support for sex: "The fact that a man and a
woman live together without marriage . . . does not in itself invalidate agreements between
them relating to their earnings, property, or expenses."

98 Nor did the court accept

arguments that upholding Michelle's claim would undermine matrimony itself. Though

such arguments had been persuasive in the previous era, now the judges voiced the
conviction that:

[T]he prevalence of nonmarital relationships in modern society and the social

acceptance of them, marks this as a time when our courts should by no means

apply the doctrine of the unlawfulness of the so-called meretricious relationship

to the instant case. As we have explained, the nonenforceability of agreements
expressly providing for meretricious conduct rested upon the fact that such

conduct, as the word suggests, pertained to and encompassed prostitution. To

equate the nonmarital relationship of today to such a subject matter is to do

violence to an accepted and wholly different practice.
99

The decision, as Morse suggests, epitomized the tendencies of the era's marriage law to

both sanction individual choice and hold individuals accountable for their choices:

In sum, couples living together could obtain all the economic benefits and

consequences (in California) of marriage simply by agreeing to do so, and courts

would enforce the contract. This decision gave couples living together more

freedom to arrange their economic affairs than is usually given to married

couples.

Marvin was a revolutionary case because it treated some couples living

together much as if they were married, a result previously achieved only by

95. Regan, supra note 88, at 37.

96. 557 P.2d 106 (Cal. 1976).

97. Id. at 122-23.

98. Id. at 113.

99. Id. at 122.



1995] AMERICAN FAMILY LAW, 1890-1990 295

common law marriage, a disfavored institution that had been abolished in
California.

100

Through decisions like Marvin v. Marvin™ 1 the contractualism that had previously
undergirded common law marriage had a second legal life as did its functional definition
of marriage. And it was broadcast throughout the nation by another model statute, the
Uniform Premarital Agreement Act

102
drafted in 1983. The Act advised that premarital

contracts should be considered unenforceable only if one of the parties entered the

relationship involuntarily, if the contract was unconscionable, or if there had been

inadequate disclosure.
103

Debate over the legalization of cohabitation demonstrated not

only the era's domestic relations tilt but also the continued existence of the law's

balancing act. As Lenore Weitzman commented, "opponents ofintimate contracts regard
marriage primarily as a public institution, while proponents view it as a private

relationship."
104

During this era, unlike the previous one, proponents had the rhetorical

edge.

Finally, as it always had in the past, divorce once again had helped define the

discourse of marriage law. Changes in divorce law sprang from the same tilt toward

individual choice and private ordering that dominated marriage law. And in divorce too,
the regulatory deterrents created earlier in the century became the prime targets for

change. Restrictions on divorce and even more tellingly, the very notion of fault as the

prime issue in dissolving a marriage lost their authority as the legal balance tilted away

from public regulation. Finally, as in the case of marriage law, changes in divorce law

proceeded in a reciprocal way with broader social changes. Prime among these were both

the escalating rate of divorce and the declining stigmatization of the divorced. By 1991,
the number of divorces was "twice as high as in 1966 and three times higher than in
1950."105

The most dramatic and telling change began in 1 970 when California adopted no-

fault divorce. The legislature shifted the emphasis from public regulation to individual

choice by eliminating the need for couples to prove the commission of a martial crime in

order to dissolve a marriage. The innovation spread rapidly through the nation. Between

1970 and 1975 all but five states adopted some form of no-fault divorce; and by the early

1990s South Dakota remained the only hold-out. The shift allowed couples throughout

the republic to dissolve their union by claiming incompatibility, irretrievable breakdown,

or similar justifications. Indeed, not only were specific grounds for divorce eliminated

but a marriage could even be terminated by one spouse without the consent of the other.

The substitution of "dissolution" for "divorce" revealed the tilt away from fault and

guilt.
106

After surveying the consequences of the rapid triumph of no-fault, Regan

100. Morse, supra note 78, at 354.

101. 557 P.2d 106 (Cal. 1976).

102. 9BU.L.A. 369(1983).

103. Id. at 376.

1 04. Lenore J. Weitzman, The Marriage Contract: Spouses, Lovers, and the Law 23 1 ( 1 980).

105. Mintz, supra note 68, at 184.

1 06. Mintz, supra note 68, at 1 9 1 . See also JACOB, supra note 62, at ch. 4; RODERICK PHILLIPS, PUTTING

Asunder: A History of Divorce in Western Society 619-34 (1988).



296 INDIANA LAW REVIEW [Vol. 28:273

explained its larger implications for the on-going debate about the proper balance in

family law:

The conceptualization of marriage as a private matter is underscored by the trend

to disregard or define very narrowly marital fault in determinations concerning

property division, alimony, and custody. Such a posture reflects the view that

there is little if any social consensus about standards that should govern marital

behavior, and that states should refrain from passing judgment on the substance

of marital interaction unless some direct harm can be demonstrated. The

connection between this agnosticism about marital behavior and no-fault divorce

is apparent: if the state feels less able to assess the propriety of behavior in an

existing marriage, then it is in a poor position to proclaim what behavior justifies

ending the marriage.
107

Equally telling, divorce reform included its own assault on family law's dual system.
Boddie v. Connecticut

1 ™ helped define marriage as a constitutionally protected right by
striking down a mandatory filing fee for divorce. The Supreme Court ruled that the fee
violated the due process rights of impoverished but estranged couples.

109
It did so by

labeling divorce the "adjustment of a fundamental human relationship" 1 10 and the method

by which "two consenting adults may divorce and mutually liberate themselves from the
constraints of legal obligations that go with marriage, and more fundamentally the

prohibition against remarriage."
1 '

'

As a result of the tilt toward individual choice in debates over marriage and divorce,

those who argued for significant public controls on matrimony became less and less
persuasive. Instead of broadcasting a uniform image of fit marital partners or even of

marriage itself, family law framed the issue as fundamentally an individual decision

likely, and legitimately, to produce a wide variety of answers.

B. Custody

Custody law also underwent a fundamental rephrasing as a result of the shifts in

domestic relations discourse. Amidst broad changes in gender roles and beliefs,

parenthood once again became a hotly contested issue in domestic relations. Converging

trends sparked debate. Particularly visible was the rapid increase of married women in
the workforce. Herbert Jacob has chronicled the magnitude of the change:

During the first half of the century, most married women stayed at home; in
1900, only 5.6% of those married worked outside the home; by 1940 that had

risen only to 13.8%. Thereafter, however, labor market participation of married

women exploded with a rise often percentage points every decade. By 1985,

107. REGAN, supra note 88, at 39.

108. 401 U.S. 371 (1971).

109. Id. at 374.

110. Id. at 383.

111. Id. at 376.



1995] AMERICAN FAMILY LAW, 1890-1990 297

54.3% of all married women were in the labor force. Indeed, by 1985 a majority
of married mothers with infants under three years old were working. 112

Such developments provided women with alternative forms of economic security to
marriage and fed growing debates about gender roles. And so did a newly reconstituted
feminist movement. Most importantly, feminist demands for gender equity and greater

male family responsibility challenged the maternalist legacy of the previous era and its

inscription in all branches of family law. At the same time, the place of children in law

also sparked controversy. Amidst ever escalating divorce rates, approximately one-third

of the children born in the era would experience a custody determination as well as the

proliferation of family forms. Indeed, the trend was so pronounced, Mary Ann Mason
discovered, that a "child born in 1990 had about a fifty percent chance of falling under the

jurisdiction of a court in a case involving where and with whom the child would live." 1 13

Simultaneously, new ideas about children, especially a growing conviction that

children had their own liberty interests separate from parents, also emerged to challenge
the inherited balance in custody law, as did an equally pronounced tendency for the state

to intervene and remove children from families. Finally, ideological and technological

change created a bewildering combination of possible parents: genetic parents, social

parents, and a gestational parent.
1 14

Writing in 1979, Morse surveyed these developments

and concluded that "the liberty and autonomy interests of women and children have been
recognized and furthered and the costs of family life have been exposed. Together these

movements have fostered the dominant modern shift in family law—increasing autonomy
for family members in relation to one another." 115

In custody law, maternalism as the singular definition of parenting became the initial

focal point of growing and intense debate about the proper balance between public and

individual interests in child rearing. As a result, the presumed superior ability of mothers

to raise children that undergirded custody law faced growing challenges as did the

concomitant assumption of a uniform definition of a fit parent that maternalism had

provided.
116

Instead, diversity gained new legitimacy and functioning families new legal

support. All of this made custody one of the most dramatic and contentious legal issues

of the era.

By 1970, maternal preference had became the prime casualty of the shifting balance

in custody law. It had ceased to provide the dominant public narrative of custody law.

State legislatures and the courts rephrased custody law by abandoning maternal

preference. For example, between 1960 and 1990 nearly all states either eliminated the

tender years doctrine or reduced its significance in custody determinations.
1 17

Similarly,

the Uniform Marriage and Divorce Act attacked one of the major props of maternal

112. JACOB, supra note 62, at 1 7- 1 8.

113. Mason, supra note 54, at 1 2 1

.

1 1 4. Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents ' Rights,

14 CardozoL. Rev. 1758 (1993).

115. Morse, supra note 78, at 32 1

.

1 16. For a discussion of these trends, see Mary Becker, Maternal Feelings: Myth, Taboo, and Child

Custody, 1 S. Cal. Rev. L. & Women's Stud. 133 (1992).
1 1 7. MASON, supra note 54, at 1 23.



298 INDIANA LAW REVIEW [Vol. 28:273

preference, the use of marital fault in custody awards. It urged states to adopt codes that

distinguished between spousal conduct and parenting rights by suggesting the admonition

that the "court shall not consider conduct of a proposed custodian that does not affect his

relationship to the child."
1 18 And the Uniform Parentage Act119 recommended the equal

balancing of the claims of fathers and mothers.

Judges and legislators sought a replacement for maternal preference through a re-

invocation of the now long-lived, ever mutable best interests of the child doctrine. The
doctrine's indeterminate meaning framed a search for a new balance in custody law that
opened the way for greater recognition of functioning families in ways that paralleled the
debate over the recognition of functioning marriages. At the same time, eliminating

maternal preference reopened the question of what constituted a legally fit parent. In

doing so, it also revealed that parenthood had no transcendent meaning, but was always

socially constructed during particular moments in time. The resulting debate, which

carries into our time, had numerous consequences.

One of its most immediate consequences was to give fathers new legal standing by
legitimating rhetorical arguments of equal parenting ability regardless of gender. For

example, in 1973 a New York appellate court explicitly rejected the gender assumptions
of the previous era when it declared: "The simple fact of being a mother does not, by
itself, indicate a capacity or willingness to render a quality of care different from that

which the father can provide."
120

Instead, the judges offered a new set ofassumptions by

asserting that scientific studies showed that "the essential experience for the child is that

of mothering—the warmth, consistency and continuity of the relationship rather than the
sex of the individual who is performing the mothering function." 121 Conversely, women
faced new tests of their parenting skills in rephrased narrative battles that gave credence

to judicial biases about working women and female sexuality. An Illinois judge asserted,
for instance, that the tender years' doctrine has no application if the mother is working and

not in the home full time. 122 Similarly, a Missouri appellate court contended that "if the

mother goes and returns as wage earner like the father, she has no more part in the

responsibility [of child care] than he."
123 And judges criticized the ability of working

women to care for their children. The result was to throw the gender balance in custody
into doubt and to rearrange the dynamics of divorce.

124

Calls for a new definition of a fit parent rearranged the balance ofpower in disputed

custody cases. Even though mothers still tended to request custody most of the time and

succeeded in obtaining custody in upwards of ninety percent of all cases, their success rate

declined as more and more fathers demanded custody. Although most fathers did not

request custody, those that did had greater and greater success. Studies reported success

118. Unif. Marriage and Divorce Act, § 402, 9A U.L.A. 147,561 (1987).

119. 9B U.L.A. 287 (1994).

120. State ex rel. Watts v. Watts, 350 N.Y.S. 2d. 285, 289 (1973).

121. Id. at 290.

122. In re Stevens, 538 N.E.2d 1 279, 1 28 1 -82 (111. App. 1 989).

123. Griswold, supra note 10, at 264.

124. See, e.g., Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and

Economic Consequences for Women and Children in America (1985).



1995] AMERICAN FAMILY LAW, 1890-1990 299

rates of fathers that ranged from forty percent to sixty percent. The sources of those

victories, Mason argues, lay in the era's shifting gender balance of power:

[WJhile only a small percentage of custody disputes reached trial and were

decided by a judge rather than the parties, the fact that judges were more willing

to look favorably upon fathers' appeals for custody influenced the private

bargaining process. Some fathers who may have had no real desire for custody,
threatened mothers with the possible loss ofcustody under the new rules in order
to secure advantages in property division, spousal support, and child support.

On the other hand, fathers who did want more time with the children could use
the law to bargain for greater access.

125

In this way, the rearranged balance of gender power in custody law sanctioned parental

diversity while also securing a primary goal of the nascent fathers' rights movement: to

"overcome the decades-old assumption that mothers were the more capable parent and to

insist that fathers be assured continued involvement in the lives of their children."
126

The most significant consequence of this new commitment to gender equity among

divorcing parents was the creation and rapid diffusion of joint-custody. Once again

California became the era's major family law innovator when it adopted joint custody in

1979. However, unlike the state's other major domestic relations innovation, no-fault

divorce,

[Joint-custody] was a change that did not mirror existing practice. It was an

invention that went counter to prevailing assumptions about proper child custody

decisions. Unlike no-fault, it was not conceived in response to technical

problems in the legal system and it was not a product of legal experts. Rather,

it reflected the changing life-styles of middle-class American families and a

nascent demand by fathers for greater consideration.
127

On the contrary, legislators explicitly rejected the once dominant view, advanced most
influentially by Goldstein, Freud, and Solnit in Beyond the Best Interests ofthe Child, that

children involved in parental separations needed the stability that only a permanently

designated single custodial parent could provide.
128

Instead, following arguments like the

anthropological analysis of Carol Stack that children could and had thrived within

multiple family forms, lawmakers endorsed the idea of divorced parents sharing the

custody of their offspring.
129

Joint custody also allowed legislators and judges to avoid

the newly difficult problem ofchoosing between mothers and fathers, as New Yorkjudge
Felicia K. Shea admitted: "Joint custody is an appealing concept. It permits the Court to

escape an agonizing choice, to keep from wounding the self-esteem of either parent and

to avoid the appearance of discrimination between the sexes."
130 The new custody

125. MASON, supra note 54, at 1 29.

1 26. GRISWOLD, supra note 1 0, at 26 1

.

127. Jacob, supra note 62, at 133-34.

1 28. Joseph Goldstein et al., Beyond the Best Interests of the Child ( 1 973).

129. Carol B. Stack, Who Owns the Child? Divorce and Child Custody Decisions in Middle-Class

Families, 23 Soc. PROBS. 505-15 (1976). See also JACOB, supra note 62, at 133-42.

130. Dodd v. Dodd, 403 N.Y.S.2d 401, 401 (N.Y. Sup. Ct. 1978).



300 INDIANA LAW REVIEW [Vol. 28:273

creation also rested on the assumption that divorced parents could and would share

equally the legal rights and responsibilities of parenthood. By 1990, thirty-six states had
followed California's lead and authorized some form ofjoint custody as well as declaring

a preference for its use.
131

Joint custody replaced maternal preference as the seemingly

natural and logical operating assumption as well as the rhetorical ideal of custody law.
132

The debate over the proper balance in custody law between parental rights and state

interests extended beyond disputes involving divorcing mothers and fathers. The demise

of maternal preference as the public narrative custody law encouraged challenges to all

established conceptions of parental fitness and rights. The resulting willingness to

consider the legitimacy of functioning families created without benefit of marriage

renewed the longstanding debate over the rights and duties of unwed parents. And, as

Karen Czapanskiy has observed, in this period, like those of the past, "[h]ow the law

regards men and women as parents is displayed with clarity in the legal relationship of
unwed parents and their children." 133

Unwed fathers were the main beneficiaries of the new tilt in custody law. Increasing
regard for unwed fathers' custody rights expressed the new status of fatherhood and its

underlying assumption that children need a paternal presence in their lives. It also, as

Mason determined, "reflected the shifting balance toward fathers and the emphasis on

biological parenthood that characterized other aspects of custody law reform."
134 As in

other critical family law debates of the era, the Supreme Court helped frame the debate.

In the 1972 case of Stanley v. Illinois™
5 unwed fathers received custody rights if proven

fit parents. Joan Stanley and Peter Stanley had formed a functioning family. They lived

together with their three children intermittently for eighteen years. Peter challenged the

constitutionality of an Illinois statute mandating that children of unwed fathers became

wards of the court upon the death of the mother. He argued that the policy violated his

equal protection rights by treating him differently than married fathers, who were

presumed to be fit custodians under Illinois law whether they were divorced, separated,

or widowed. The Supreme Court supported him and ordered that fitness hearings to

determine custody must be held for unwed fathers as for all natural parents in this

circumstance.
136

Justice Byron White declared: "The private interest here, that of a man
in the children he has sired and raised, undeniably warrants deference and, absent a

powerful countervailing interest, protection."
137

131. Mason, supra note 54, at 1 3 1

.

1 32. Joint custody's only significant competitor was another creation of the era, the primary caretaker

preference. The gender neutral rule awarded custody to a parent based on a quantitative assessment of the time

spent caring for a child. But it was adopted only in West Virginia and Minnesota. For a discussion of the

concept, see David Chambers, Rethinking the Substantive Rulefor Custody Disputes in Divorce, 83 MICH. L.

Rev. 477(1984).

133. Karen Czapanskiy, Volunteers and Draftees: The Strugglefor Parental Equality, 38 UCLA L. REV.

1415, 1417(1991).

1 34. MASON, supra note 54, at 145.

135. 405 U.S. 645 (1972).

136. Id. at 658.

137. Mat 651.



1995] AMERICAN FAMILY LAW, 1890-1990 301

However, debate about the proper balance of rights for unwed fathers also focused
on the reality that most of these men did not live with their children and had little or no
contact with them. The issue arose with particular urgency in challenges to adoptions by

unwed fathers. Once more the Supreme Court supplied a critical answer. It did so when

a father who had never lived with his two year old daughter or her mother protested the
girl's adoption. He argued that failure to notify him of the proceedings so that he could
protest the termination of his parental rights denied him equal protection. The Court

disagreed. In explaining why, Justice John Paul Stevens offered a fulsome conception of

the ideal of functioning parenting being embedded in custody law:

The significance of the biological connection is that it offers the natural father

an opportunity that no other male possesses to develop a relationship with his

offspring. If he grasps that opportunity and accepts some measure of

responsibility for the child's future, he many enjoy the blessings of the parent-
child relationship and make uniquely valuable contributions to the child's

development. If he fails to do so, the Federal Constitution will not automatically

compel a State to listen to his opinion of where the child's best interests lie.
138

Applying such a standard, the courts created a new balance that tilted the rights of

unwed fathers toward those ofmarried men. In doing so, Mary Ann Glendon argues, such
a rephrasing of the law became one more instance of a larger development of the era:

"[T]he traditionally central position of legal marriage in family law has been extensively

eroded everywhere."
139 As a result, unwed fathers who demonstrated a willingness to act

as parents could secure greater rights to visitation, consent to adoption, and inheritance

along with their longstanding duty of support. The shift in legal rights represented a

significant new balance in the law and increase in the parental authority of unwed
fathers.

140
However, full equalization of all biological fathers' custody rights did not

occur. Despite the new legal balance, a boundary line continued to separate the rights of

married and unmarried fathers.
141

Equally important, gender distinctions remained critical to debates over the rights of

unwed parents as they did to all family law discourse. Indeed, the demise of maternal

preference and significant increases in the numbers of single mothers during the era made

single mothers a new concern. And as a result of the new balance in the law, unwed

mothers lost a portion of their custody rights to unwed fathers who demonstrated some

parental concern. Nevertheless, as Czapanskiy makes clear, in this, as in other areas of

custody law, the rhetoric of gender equity often camouflaged the reality that mothers

remained the primary parent and retained major parenting responsibilities:

Unlike the nineteenth century award of custody to unwed mothers, the late

twentieth century award of custody rights to unwed fathers has not been

138. Lehr v. Robertson, 463 U.S. 248, 262 (1983).

1 39. Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the

United States and Western Europe 284 (1989).

1 40. For general discussions of these trends, see GRISWOLD, supra note 1 0, at 239-42; MASON, supra

note 54, at 145-48.

141. See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989).



302 INDIANA LAW REVIEW [Vol. 28:273

accompanied by a wholesale change in the duties of fathers to provide the child

with a name or with inheritance rights. While some changes have occurred, they
are only piecemeal. Most often, the changes have been efforts to equalize the

status of illegitimate and legitimate children, not to equalize the responsibilities

borne by mothers and fathers of illegitimates.
142

Instead of actual custody, questions of paternal support dominated debates about the

relationship between unwed parents.

The renewed debate over the proper balance in custody law also grew to include

direct clashes between parents and the state. Both the demise ofmaternal preference and

the growth of the American variant of the welfare state undermined the anti-

institutionalism and aversion to removing children from their homes that had

characterized the previous period. According to Mason:

The delicate balance between the state as child protector and the privacy rights

ofparents to the custody and control of their children definitely tilted toward the

authority of the state. The state intervened in families at a rate unknown in

history, providing a wide variety of support and sometimes removing the

children when the support could not, in the state's opinion, cure the families'

problems. The publicly supported child protection agencies still enjoyed some

state and even local autonomy, but the trend favored ever more federal

government control. Federal control was exacted by U.S. Supreme Court

decisions governing procedure in the removal of children from their homes and

termination of parental rights, and by federal statutes exacting uniform

requirements in exchange for federal funds.
143

Neglect and abuse became the principal grounds for removal. The upsurge led to

redefinitions of the relationship between parental rights and child need.

The vagaries of that relationship in an age that constantly questioned uniform ideas

of parental fitness became evident in yet another seminal Supreme Court custody

discussion. After several attempts to protect their rights, John and Annie Santosky finally

reached the high court. A New York social agency had removed three of their children
after charging the couple with neglect. The Santoskys then resisted a petition to terminate

their parental rights. After losing in the New York courts, they found relief in
Washington. In Santosky v. Kramer,

144
the Court ruled that the rights of natural parents

could only be terminated upon clear and convincing evidence of parental neglect.
145

Justice Harry A. Blackmun insisted that the fundamental liberty interest of natural parents

in the care, custody, and management of their child meant that the procedures affecting

termination of parental rights must be fair and that proof must be clear and convincing:

Even when blood relationships are strained, parents retain a vital interest in

preventing the irretrievable destruction of their family life. If anything, persons

faced with forced dissolution of their parental rights have a more critical need

142. Czapanskiy, supra note 133, at 1425.

143. Mason, supra note 54, at 1 50.

144. 455 U.S. 745(1982).

145. Id. at 747-48.



1995] AMERICAN FAMILY LAW, 1890-1990 303

for procedural protections than do those resisting state intervention into ongoing

family affairs. When the State moves to destroy weakened familial bonds, it
must provide the parents with fundamentally fair procedures.

146

Such rulings did not guarantee parental custody rights so much as create the framework
for balancing the clashing claims of families and welfare agencies. And the best interests
of the child doctrine framed the subsequent debates by posing the issue as one of

balancing tests between individual and public interests and of the legitimacy of various

family forms and conduct.

Even the age-old commitment of custody law to biological ties faced new challenges.

The most dramatic came from incredible developments in reproductive technology that

enabled people who could not otherwise have babies to have them. The new artificial
birth procedures included in vitro fertilization, artificial insemination, ovum donation,
embryo freezing for future use, embryo transfer, and surrogate mothering. And the results
were equally startling. Between 1981 and 1987, about eight hundred test-tube babies

were born in the United States; and by 1987 about six hundred children had been born to

surrogate mothers. Significantly, five ofthose surrogate mothers had refused to surrender

custody.
147

In 1986, a bitter New Jersey custody battle broke out when one of those surrogate
mothers, Mary Beth Whitehead, refused to deliver her infant daughter to its biological

father, William Stern. Under their agreement, Whitehead was artificially impregnated by

Stern, and she carried their child to term. The legality and enforceability of surrogate

motherhood contracts became the primary issue in the case as did the right of the

surrogate mother to change her mind about relinquishing custody. The dispute also

provoked a larger debate about whether such arrangements inevitably involved class

exploitation since surrogate mothers tended to be poorer and less educated than the

couples hiring them. The New Jersey Supreme Court in In the Matter ofBabyMdeclared
the contract void and likened it to baby selling:

The evils inherent in baby-bartering are loathsome for a myriad of reasons. The

child is sold without regard for whether the purchasers will be suitable parents.

The natural mother does not receive the benefit of counseling and guidance to

assist her in making a decision that may affect her for a lifetime. In fact, the

monetary incentive to sell her child may, depending on her financial

circumstances, make her decision less voluntary.
148

After this invocation of family sentiments, the judges relied on the balancing test of the

best interests of the child doctrine to determine Baby M's custody. Giving each parent's

claim equal weight, they awarded the child to Stern because his home seemed more

suitable for the child.
149

In this and related cases generated by the new technologies, the

new commitment to diverse forms of parenthood reinforced the inherent appeal of the

balancing test embedded in the best interests of the child's doctrine. Louisiana even

146. Mat 753-54.
147. Mintz, supra note 68, at 206-07.

148. 537 A.2d 1227, 1241 (N.J. 1988) (citation omitted).

149. Id. at 1256-64.



304 INDIANA LAW REVIEW [Vol. 28:273

extended the rule to new forms ofreproduction by insisting that "disputes between parties
should be resolved in the 'best interests of the embryo' and that interest would be

'adoptive implantation.'"
150

Finally, despite the broad debate over parenting carried on in the era, the proliferation

of family forms, and even the emergence of what came to be called social parenting,

biological ties continued to outweigh the custody claims of other custodians. Foster

parents in particular failed to secure legal support for the families they created even

though foster care had become the preferred form of placing children removed from their

homes. Instead, foster parents were treated more like a vendor with a contract than a

parent in a functioning family. The Supreme Court sanctioned that secondary status in

Smith v. Organization ofFoster Families ,
151

a 1977 decision that denied foster families

the same status as natural families.
152

The class action suit claimed for foster parents a constitutionally protected liberty

interest in the children they reared and thus a right to a full hearing to determine their

fitness before the children could be removed from their care. In rejecting the claim, the

Court identified the key issues to be weighed in determining custody. Justice William

Brennan admitted that the "usual understanding of 'family' implies biological

relationships," but he acknowledged that "biological relationships are not exclusive

determination of the existence of a family."
153

Accepting the existence of functioning

families, he even lauded them:

[T]he importance of the familial relationship, to the individuals involved and to

the society, stems from the emotional attachments that derive from the intimacy

of daily association, and from the role it plays in "promoting] a way of life"

through the instruction of children, as well as from the fact ofblood relationship.

No one would seriously dispute that a deeply loving and interdependent
relationship between an adult and a child in his or her care may exist even in the
absence of blood relationship.

134

Consequently, Brennan recognized that the Court could not "dismiss the foster family as

a mere collection of unrelated individuals."
155

Nevertheless, after voicing a commitment

to protect the rights of natural parents who had not fully relinquished their children, he felt

compelled to underscore the distinctions between foster families and natural families:

It is one thing to say that individuals may acquire a liberty interest against
arbitrary governmental interference in the family-like associations into which

they have freely entered, even in the absence of biological connection or state-

law recognition of the relationship. It is quite another to say that one may
acquire such an interest in the face of another's constitutionally recognized

1 50. MASON, supra note 54, at 144.

151. 431 U.S. 816(1977).

152. Mat 847.
153. Mat 843.
154. Id. at 844 (citation omitted).

155. Id. at 844-45.



1995] AMERICAN FAMILY LAW, 1890-1990 305

liberty interest that derives from blood relationship, state-law sanction, and basic

human right. 156

In this way, foster families exposed the limits of the era's debate over custody law.

Writing two years later, Morse contended that Smith seems to fit the definition that nearly

all Americans would accept:

The contours of the legal family seem to depend on marriage and biological or

equivalent legal relationships. Relationships that do not have these bases are not

considered families, even though they may be functionally equivalent to
traditional families. Still, the recognition that "family-like associations" may
have some family-like rights, especially where the best interests ofchildren may
be involved, reflects a concern for the rights of children and for the autonomy

of adults who may obtain some family rights in nontraditional ways. 157

And similar debates erupted over the custody of adopted children, most notably the recent
tragic fight over "Baby Jessica."

158

In short, in custody law, as in marriage, liberation rhetoric tilted family law toward

greater recognition of individual rights and toleration of family diversity. Marriage and

custody debates paralleled domestic relations discussions of everything from children's

rights and spousal rape to abortion and inheritance rules.
159 The result was a new

dominant dialogue for discussing the law.

But, of course, that dominant rhetoric did not tell the whole story. It never does. The

debate over family law, especially during the last decade, has been filled with challenges

expressed yet again in terms ofreversing the law's balance. And the calls for change have
come in almost every category of domestic relations. Equally important, the innovations

of the recent era have been the targets of complaint. Mintz captured the tenor of the

growing complaints and provided a list of the focal points of concern:

[T]he shift toward family laws emphasizing equality and individual rights has

come at the expense of certain other values. Our current no-fault divorce

system, for example, does a poor job of protecting the welfare of children, who

are involved in about two-thirds of all divorces. Compared to the divorce laws

in Western European countries, American divorce laws make it relatively easy

for noncustodial divorced parents to shed financial responsibility to their ex-

spouses and minor children. Child support payments are generally low (and are

not adjusted for inflation), and spouses have great leeway in negotiating

financial arrangements, including child support (in over 90 percent of all divorce

cases, the parties themselves negotiate custody, child support, and division of

marital property without court supervision). In addition, feminist legal scholars

maintain that under present law, divorced women are deprived of the financial

1 56. Id. at 846. For a full analysis of the case, see Robert H. Mnookin ET AL., In the Interest of

Children: Advocacy, Law Reform, and Public Policy Pt. Ill (1985).

1 57. Morse, supra note 78, at 325.

1 58. MASON, supra note 54, at 1 87-88. For a general discussion ofthese issues, see MASON, supra note

55, at 156-69.

1 59. For a recent analysis of these broad changes in family law, see REGAN, supra note 88.



306 INDIANA LAW REVIEW [Vol. 28:273

support they need. Under no-fault laws many older women, who would have
been entitled to lifelong alimony or substantial child support payments under the

old fault statutes, find it extremely difficult to support their families. Courts,

following the principle of equality, generally require ex-husbands to pay only

half of what is needed to raise children, on the assumption that the wife will

provide the remainder. Furthermore, the shift toward gender-blind custody

standards has led courts to move away from standards that favored the
mother—by stressing day-to-day caretaking responsibilities, such as feeding,
bathing, dressing, and attending to the health-care needs of the child-—and to
attach more emphasis on standards that favor the father, such as an emphasis on

the child's economic well-being.
160

As a result of such complaints and concerns, the family has become a battleground yet
again. Demands for a return to maternal preference, the reinstitution of fault in divorce,

the imposition of greater restrictions on young persons' marital rights, and the institution

of custodial restrictions on single mothers have tried to tilt the law back toward family

uniformity and public regulation. Once more a moral panic has set in and crystallized

worries and anxieties about social change into Jeremiads of family crisis. As fear has

replaced confidence, the debate has been framed in terms of altering the balance between

individual rights and public regulation by refusing legal recognition to functioning

families.

As in the past, the creation of the family law folk devils of our age are perhaps the

most illustrative examples of the resulting family law debate. Same-sex marriage fills that

unwelcomed role today. Such unions have long been banned either directly by statute or

through judicial statutory interpretations.
161 Gay and lesbian claims for the right to wed

and the attendant actual and symbolic benefits of matrimony suggest once more how
groups of people turn to the law for legal aid and legal recognition. However, as in the

cases of other groups denied marriage rights in the past, champions of same-sex marriage

threaten, in the apt words of contemporary literary criticism, to decenter the public

narrative of family law by challenging accepted meanings of wife, husband, mother,

father, family, and marriage. In explaining their support for same-sex marriage, for

instance, Yvonne Yarbro-Bejarano and Eleanor Soto underscore its political implications:

[0]ne thing we wanted was to create and make public a perception of lasting
commitment among lesbians. In this way, getting married is an important part

ofbuilding lesbian community. [We] felt there was a very strong political aspect

to what we were doing. We weren't imitating an oppressive and sexist
heterosexual institution; we were demanding the same rights and privileges of

heterosexual couples. Our goal is not to imitate it but to transform it in

progressive ways.
162

1 60. Mintz, supra note 68, at 194. See also MlNTZ & Kellogg, supra note 3 1 , at epilogue.

161

.

Sexual Orientation and the Law 95-101 (Harvard Law Review ed., 1990).

1 62. Quoted in Mary C. Dunlap, The Lesbian and Gay Marriage Debate: A Microcosm ofOur Hopes

and Troubles in the Nineties, 1 L. & SEXUALITY 64 (1991).



1995] AMERICAN FAMILY LAW, 1890-1990 307

Conversely, the vehement opposition to such claims turned proponents of same-sex

marriages into folk-devils. As had others in the past, they stood accused of undermining
national morality by threatening the sanctity of matrimony. Don Feder, a columnist and
leader of the Christian Coalition, declared: "I do not accept the fantastic notion that two

men who met the evening before in a leather bar constitute a family with the same
legitimacy as a man and woman whose union is sanctified by commitment and faith,
raising their children in a time-honored fashion."

163 The resulting battles between

advocates and opponents of same-sex marriage testifies yet again to the contentiousness

of debates over family law.
164

One aspect of this debate is a particularly revealing example of the power of family
law's dominant discourse to structure conflict over its rules. In trying to find ways to

legitimate their position, proponents and opponents of same-sex marriage have turned to

the age-old policy practice ofhistorical analogy to tilt the law's balance toward their goal.

Not surprisingly, given marriage law discourse, polygamy and miscegenation have the

primary argumentative analogies. For opponents of same-sex marriage like Bruce Fein,

polygamy is the most appealing analogy. "Authorizing the marriage of homosexuals, like

sanctioning polygamy," he argues, "would be unenlightened social policy. The law

should reserve the celebration of marriage vows for monogamous male-female
attachments to further the goal of psychologically, emotionally, and educationally

balanced offspring."
165 Though he urged that other forms of legal discrimination against

gay men and lesbians be re-examined, he drew the line at marriage. In that case, again
as with polygamy, Fein concluded that the interests of the majority should outweigh those

of a minority.
166

Thomas Stoddard replied to such arguments with a different lesson from the past and

a different analogy. Relying on Loving, he argued that the recognition of marriage as a

fundamental right meant that prejudice could not be used to legitimately limit individual

nuptial rights. "The decision whether or not to marry belongs properly to individuals,"

Stoddard contended, "not to the government. While marriage historically has required a

male and a female partner, history alone cannot sanctify injustice."
167

Like the ban against

interracial marriage, he considers the bar to same-sex unions as an unconstitutional form

of discrimination that violates the equal protection rights of gay men and lesbians and
urged the law be tilted toward individual rights.

168 And these analogies have also been

used in the courtroom. The Minnesota Supreme Court, for example, rejected the

comparison to Loving, and instead drew "a clear distinction between a marital restriction

1 63

.

Quoted in Richard L. Berke, From the Right, Some Words ofRestraint, N.Y. TIMES, Sept. 1 7, 1 994,

§ l,at9.

164. For a discussion of these issues, see Symposium, The Family in the 1990's: An Exploration of

Lesbian and Gay Rights, 1 L. & Sexuality 1 (1991).
165. Bruce Fein, Gay Marriage: Should Homosexual Marriage Be Regognized Legally? No: Reserve

Marriagefor Heterosexuals, 76 A.B.A. J. 43 (Jan. 1990).

166. Id.

1 67. Thomas Stoddard, Gay Marriage: Should Homosexual Marriage Be Recognized Legally? Yes:

Marriage Is a Fundamental Right, 76 A.B.A. J. 42 (Jan. 1990). See also Andrew Koppleman, The

Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L. J. 145-61 (1988).

1 68. Stoddard, supra note 1 67, at 42.



308 INDIANA LAW REVIEW [Vol. 28:273

based merely upon race and one based upon the fundamental difference in sex."
169

As the
clashing analogies vividly demonstrate, the family remains a litmus test of the well-being

of our society.

Conclusion

I want to conclude by acknowledging that I have dwelt on only two of the three key

words in the symposium theme. I have compared then and now, but shied away from
speculating about the future. In part the reluctance represents a disciplinary aversion to

prediction. Nevertheless, my necessarily brief discussion of a century of family law does
lead to two final points. They are predicated on the significance of the assertion that in

1994, as in 1894, contests over who can wed and who is considered a fit parent ignite
fierce family law debates and those debates are expressed in terms of finding a proper

balance between individual rights and state interests.

First, I think that clashes over same-sex marriage or headline making custody cases

like the fight over Baby Jessica emphasize the continuing power of the law to frame legal

debates about troubled families in certain ways. Looking backwards does not solve these

problems nor lessen their urgency. What it does, I think, is highlight the profoundly

contingent character of family law rules and practices. And it reminds us that we too are
actors in time and our time constrains the way we view the world. In other words, our
inherited way of talking about family law has real consequences.

Second, I think the way we talk about family law also illustrates the critical
distinction between hegemony and ideology. By that I mean that contemporary family
law disputes, like those of the past, demonstrate again and again the ordering power of the

law. It forces family conflict to be expressed through particular rules and procedures that

grant the law its legitimacy. However, that ordering role does not produce uniform

beliefs. On the contrary, it encourages various ideological convictions. Views on
individual family rights, state regulation, and family diversity became the critical issue

in those ideological beliefs.
170 The result, I think, is that family law produces repeated

generational conflicts but not permanent solutions. Instead, back to playground imagery,

the law's balance constantly shifts while the teeter-totter stays in place.

And so, in thinking about the family law that students at Indiana University School
ofLaw in Indianapolis learned then, are learning now, and might learn in the future, I am
struck by how similar and how different are their educations. Students who learned the
law here in 1894 would be surprised at many of the specific issues that dominate debates

about family law today, but they would have recognized how we frame them and talk

about them. It is that message of continuity and change I want to add to this Symposium.

1 69. Baker v. Nelson, 1 9 1 N.W.2d 1 85, 1 87 (Minn. 1 97 1 ). See also Nan D. Hunter, Marriage, Law, and

Gender: A Feminist Inquiry, 1 L.& SEXUALITY 14-15(1991).

170. For a compelling discussion of the difference between hegemony and ideology, see JEAN

COMAROFF AND JOHN COMAROFF, OF REVELATION AND REVOLUTION: CHRISTIANITY, COLONIALISM, AND

Consciousness in South Africa ch. 1 (1991).