For more than a century, the Supreme Court of the United States has been “constitutionalizing” the family. That is, the Court has treated family as an institution possessing constitutional status and providing a ground for constitutional judgment. This seminar aims to examine both the manner in which the Court has proceeded and the substantive stakes of the Court’s decisions. Those stakes are, to borrow from Justice Douglas, older than the Constitution. They extend to the earliest values and practices of human civilizations. The stakes are also fundamental. They implicate people’s material wellbeing, their conceptions of morality, and their preparation for citizenship.
These considerations suggest some questions. Who is a family, and who may decide? What roles, if any, does family play in the relationship between individual and state? To what extent should familial values or practices be exempt from regulation by government? What is the relation between family and gender (a status)? Between family and sex (an act)? How do a liberal culture and a capitalist economy affect the form and function of family? What is the constitutional status of marriage? What, if anything, does the Constitution say about the rearing of children? Does the Constitution require, permit, or prohibit official recognition of same-sex marriage?