Where Do Families Come From? The Law of Family Definition

Authors

Katharine Baker

Abstract

Why does the law recognize families? Sometimes family recognition serves to foster cooperative communities in which sharing norms, more than the market or the government, determine rights and obligations. These communities often take care of dependents and serve as important sources of individual self-determination and pluralism. At other times, family delineation serves a corrective purpose, when it forces family members who are not sharing with each other to do so. At still other times, family delineation serves a distributive purpose, as when the law uses “family” definition to distribute resources to determine an intended beneficiary. This use of “family” for assumptive purposes helps distribute either public or private resources efficiently and appropriately.

In the constitutional jurisprudence of the family, the Supreme Court has rarely acknowledged these different purposes for defining family even as it has adopted, without explaining, different definitions of family in different contexts. This Article argues that the different purposes served by family delineation help explain why the Supreme Court has been so willing to embrace different definitions of family. Contrary to what the Supreme Court has said, whether a statute or program “slices into” or “infringes on” the definition of family is not an important question. All legislation that impacts families does that. The important question is whether a particular definition of family is appropriate in light of the governmental purpose served by family in that context. In explaining why one must consider context before deciding on the appropriate definition of family, this Article shows that the Supreme Court’s application of constitutional doctrine in the family context has been confused because it has been premature. One cannot determine what either the equal protection or due process rights of family members are unless one knows what a family member is. How the Court has determined what a family member is can—and this Article argues should—turn on the purpose family delineation is serving in different contexts.

Rights

© 2024 Brigham Young University Law Review

Recommended Citation

Katharine Baker, Where Do Families Come From? The Law of Family Definition, 49 BYU L. Rev. 1249 (2024).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol49/iss5/6