World Family Policy Center Newsletter

Katharine K. Baker

Visiting Professor of Law, Northwestern University School of Law Professor, Chicago-Kent College of Law

FAMILY, THE LAW, AND THE CONSTITUTION(S)

Abstract

This article explores the constitutional reasons for and the constitutional implications of the current trend to sever family rights from family status. In the last 30 years, courts and legislatures have increasingly recognized a variety of different family forms by granting relationship rights (domestic partnership privileges, civil union status, visitation rights, de facto parent status) without expanding (much) on the legal definition of either marriage or parenthood. This article explains why this might be so by unpacking the constitutional treatment of family relationship. It argues that when state and federal constitutions recognize a right to family status (marriage or parenthood per se), they are honoring an expressive right to label oneself with a status that has social meaning. Because what gives this expressive right its content is the social meaning of the institution, the scope of one’s right to family status is cabined by the social understanding of that status. The article also argues that constitutions protect family relationships for reasons other than just their expressive value, however. It suggests that the rights and obligations of both marriage and parenthood, particularly in their tendency to treat two as one for legal purposes, provide critical sources of identity and autonomy to family members. The current trend to disaggregate family rights from family status suggests that legal actors may be more eager to protect the constitutive benefits that flow from family rights than the expressive benefits that flow from family status. The article argues, however, that the trend to disaggregate family rights from status actually undermines both aspects of the constitutional protection of relationship. First, the proliferation of alternative means of recognizing family relationships may well undermine the social meaning of marriage and parenthood per se and thereby make claims to marital or parental status frivolous. Second, the tendency to grant people the rights of family relationships without necessarily imposing upon them the burdens of family relationship undermines the constitutive nature of legally recognized family relationship and therefore undermines the purpose of constitutional protection. Finally, the more legally varied family-like relationships become, the more necessary it will be for courts to insert themselves inside those relationships in ways that will undermine the privacy and autonomy values that justify treating family relationships as special. Although not primarily about gay marriage, all of the analysis presented here has implications for the same-sex marriage debate.

Note: The abstract and the following link are used with the express permission of the author. Our readers may read the full paper online, but please do not circulate it beyond that approved use without obtaining separate permission from Katharine Baker.

To read the entire article, click here.

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FEATURED NEWS ARTICLES

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1. California Marriage Amendment Petition Drive Enters Final Stretch

CitizenLink

March 24, 2008

Supporters of traditional marriage have until April 1 to get enough signatures to place the California Marriage Protection Act on the November ballot. More than 750,000 signatures have been collected en route to a goal of 1.1 million.

A successful petition drive would allow Californians to amend their state constitution to define marriage as the union of one man and one woman.

While it's too late to start gathering more signatures, Mona Passignano, state issues analyst for Focus on the Family Action, encouraged those with petitions in hand to fill them out carefully and turn them in as soon as possible.

“As volunteers have been proofreading the petitions, they have found that many thousands of signatures are not valid,” Passignano said. “None of the signatures on a page can be counted unless all shaded areas are filled out and signed.”

To view the entire article, visit http://www.citizenlink.org/CLBriefs/A000006907.cfm

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2. Good Marriage Equals Good Blood Pressure

Washington Post

March 20, 2008

NEW YORK -- A happy marriage is good for your blood pressure, but a stressed one can be worse than being single, a preliminary study suggests.

That second finding is a surprise because prior studies have shown that married people tend to be healthier than singles, said researcher Julianne Holt-Lunstad.

It would take further study to sort out what the results mean for long-term health, said Holt-Lunstad, an assistant psychology professor at Brigham Young University. Her study was reported online Thursday by the Annals of Behavioral Medicine.

The study involved 204 married people and 99 single adults. Most were white, and it's not clear whether the same results would apply to other ethnic groups, Holt-Lunstad said.

Study volunteers wore devices that recorded their blood pressure at random times over 24 hours. Married participants also filled out questionnaires about their marriage.

Analysis found that the more marital satisfaction and adjustment spouses reported, the lower their average blood pressure was over the 24 hours and during the daytime.

To view the entire article, visit http://www.washingtonpost.com/wp-dyn/content/article/2008/03/20/AR2008032000943.html

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3. Dutch to publish DIY suicide manual

Telegraph.co.uk

March 24, 2008

A scientific guide to DIY suicide is to go on sale in the Netherlands to help people end their lives quickly and painlessly.

The book, the first of its kind to be published, is by a group of respected scientists and psychiatrists.

It contains detailed information on using drugs as well as committing suicide by starvation, including the quickest and least painful way to do it.

There are also chapters on the ethical and judicial questions for those who aid suicides. Its authors are also planning English, French and German editions.

Author and psychiatrist Boudewijn Chabot said: "Doctors learn little about this subject during their training. This book is for people who want to make their own decisions about ending their own lives."

To view the entire article, visit http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/03/24/wdutch224.xml

When Is Sedation Really Euthanasia?

Time

March 21, 2008

In the contentious debate over whether people have a right to die, the staunchest opponents on either side could usually agree on one point — that the terminally ill ought to be made as comfortable as possible in their final days. But a controversial procedure is now calling into question even that accord.

Terminal sedation is the decision to keep dying patients, who cannot be made comfortable in any other way, unconscious until they die. As a last resort, such drug-induced sedation is legal in most countries including the U.S., and it is widely accepted as a mainstay of end-of-life care. Opponents of terminal sedation argue, however, that some doctors misuse the practice as a substitute for euthanasia. A study published last week in the British Medical Journal (BMJ) indicates this may be the case in the Netherlands. Physician-assisted suicide has been legal there — though highly regulated — since 2001, but its use has dropped in recent years. At the same time, Dutch physicians have turned more often to terminal sedation to treat patients at the end of life — 8.2% of all deaths in 2005 involved terminal sedation, up from 5.6% of deaths in 2001. These findings suggest that "continuous deep sedation has possibly increasingly been used as a relevant alternative to euthanasia," the study's authors write. "We do not know whether such substitution is always in accordance with the patient's wishes and with legal and professional guidelines."

To view the entire article, visit http://www.time.com/time/health/article/0,8599,1724911,00.html

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4. Malta Government Won't Legalize Abortion despite Council of Europe Pressure

LifeNews.com

March 25, 2008

Valleta, Malta -- The government of Malta has no plans to legalize abortions despite pressure from the Council of Europe for the nation to ditch its pro-life laws protecting unborn children. The Maltese government may approve sending a representative to the group to explain its position.

The Parliamentary Assembly of the Council of Europe has called for an end to all laws prohibiting abortions within its member states.

A Council committee released a report on March 18 with that request. Although the demand is not legally binding, the discussion of a final report on abortion on April 14 could have significant influence on the four European nations with significant abortion limits.

Following passage of the report, John Smeaton, director of the Society for the Protection of Unborn Children, a British pro-life group, predicted it would be used "as leverage toward the creation of a right to abortion on demand in international law, which has always been the most important and ultimate goal of the worldwide pro-abortion lobby."

The Maltese government is resisting such efforts.

To view the entire article, visit http://www.lifenews.com/int671.html

United Nations Official Who Aggressively Promoted Abortion Resigns Post

LifeNews.com

March 20, 2008

A controversial UN official ended his tenure this week in Geneva the same way it began, by promoting abortion.

Paul Hunt, outgoing Special Rapporteur on the Highest Attainable Standard to Physical and Mental Health, presented his last report to the Human Rights Council (HRC), claiming that states have a legal obligation to provide “sexual and reproductive health services.”

In his report, Hunt claims that a state has core obligations to provide for what he terms a “minimum basket of health-related services” which include “sexual and reproductive health services including information, family planning, prenatal and post-natal services.”

Hunt’s latest report also briefly details some of his activities as special rapporteur over the last year.

He touts a workshop he co-organized with the United Nations Population Fund (UNFPA) on “mainstreaming sexual and reproductive health rights into the work of the United Nations human rights system” last November.

The terms “sexual and reproductive health rights” and “sexual and reproductive health services” have never been accepted in any binding UN document. Such mainstreaming of radical notions is a longtime project of Hunt and his colleagues at such UN agencies as UNFPA and also the UN Children's Fund.

To view the entire article, visit http://www.lifenews.com/int668.html

Bulgaria Abortions Almost Equal Births, Highest Teen Abortion Rate in Europe

LifeNews.com

March 20, 2008

Sophia, Bulgaria -- Bulgaria has had one of the world's highest abortion rates in recent years and new statistics there show there are about 50,000 abortions annually in the eastern European nation. The Association for Obstetrics and Gynecology indicated women in Bulgarian continue to rely on abortion as a method of contraception.

That's because of an online poll the group conducted showing 76 percent of women disapprove of abortion but just four percent use any form of contraception.

The group reported the teen abortion rate continues as one of the highest in Europe.

AOG head professor Nikola Milchev told the Sofia News Agency that 38 out of ever 1,000 teenagers in Bulgaria have an abortion.

He said government and private groups must do more to promote contraception and is worried that the number of abortions almost equals the number of births.

"It is absurd that in 21st century Bulgaria there are 65,000 births and 50,000 abortions annually," Milchev said.

A United Nations report last August that studied the abortion rates of 61 countries across the globe found Bulgaria among the leaders.

To view the entire article, visit http://www.lifenews.com/int667.html

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5. Sex Ed for Your Kids: One Talk Won't Do

CBSNews

March 3, 2008

Ideally, that "facts of life" talk you have with your children should be a series of sex ed discussions that cover a range of topics, rather than one long talk, according to a new study.

"Because of discomfort with the topic, there is that hope that it can be taken care of with a single talk," says Steven C. Martino, PhD, study researcher and a behavioral scientist at Rand Corp. in Pittsburgh.

But his new study, published in the March issue of the journal Pediatrics, suggests that a continuous, repetitive, wide-ranging conversation with your kids about sex is the better approach…

"We know [already] that the more parents talk to their kids [about sex], the better off the kid is in terms of healthy beliefs," Martino says, citing previous research. Children whose parents talk often about sex education are more likely to delay sex until an older age and to take precautions when they do become sexually active, he says.

To view the entire article, visit http://www.cbsnews.com/stories/2008/03/03/health/webmd/main3899922.shtml

Quote of the Day: “The best inheritance a parent can give to his children is a few minutes of their time each day.”