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BOOK REVIEW
Common and Uncommon Families
and the American Constitutional
Linda C. McClain* STATES OF UNION: FAMILY AND CHANGE IN THE AMERICAN CONSTITUTIONAL ORDER Mark E. Brandon. Lawrence: University of Kansas Press, 2014. INTRODUCTION: A FAMILIAR STORY ABOUT FAMILIES AND THE AMERICAN CONSTITUTIONAL ORDER . 19   BRANDON·S CONSTITUTIONAL STORY . 21   III. UNCOMMON FAMILIES . 25  IV. THE BATTLE AGAINST MORMONISM AND THE CONSTITUTIONAL ENTRENCHMENT OF THE MONOGAMOUS MODERN DEBATES ABOUT THE CONSTITUTION AND CONCLUSION . 35   I. INTRODUCTION: A FAMILIAR STORY ABOUT FAMILIES AND THE AMERICAN CONSTITUTIONAL ORDER In his aptly named book, States of Union: Family and Change in the American Constitutional Order, Professor Mark E. Brandon WDFNOHV D IDPLOLDU ´VWRU µ DERXW IDPLO  values and the American FRQVWLWXWLRQDO RUGHU 7KH VWRU  JRHV OLNH WKLV ´[A]cross the ages, a particular familial form has held³monogamous, heterosexual, Professor of Law and Paul M. Siskind Research Scholar, Boston University School of VANDERBILT LAW REVIEW EN BANC permanent, and reproductive. This family is natural and has helped establish and maintain a kind of ciYLOL]DWLRQLQFOXGLQJRXURZQµ1 In this story, ´[l]aw, economy, and culture therefore have historically recognized [this family·s] fundamentality,µ but ´beginning in the 1960s, law altered the landscape on which this family had traditionally flourished.µ2 Brandon offers as illustrative of this story Mary Ann Glendon·s assertion that, beginning in the 1960s, ´ ¶legal norms which had remained relatively undisturbed for centuries were discarded or radically altered in the areas of marriage, divorce, family support obligations, inheritance, the relation of parent and child, and the status of children born outside marriage.· µ3 Critics of this transformation view the Supreme Court as ´one culprit,µ since it constitutionalized family and marriage, for example, through its evolving doctrine of constitutional privacy.4 This ´jurisprudence of the family,µ critics contend, ´weakened the institution of the family by challenging the preconditions for sustaining its traditional forms and functions.µ5 Such alteration in the constitutional landscape, on this account, threatens to ´unravel the social fabric of the constitutional order.µ6 To students of constitutional law and family law, as well as to observers of contemporary political debates and social movements, this ´storyµ will sound familiar. As I observed, in examining the place of families in the political and constitutional order: ´The ideas that a significant link exists between the state of families and the state of the nation, and that strong, healthy families undergird a strong nation, are animating a number of social movements as well as governmental efforts to strengthen families.µ7 So, too, those who advance rationales for ´defendingµ and ´protectingµ marriage against a new definition that would extend to same-­sex couples have appealed to the idea that the American constitutional and political order have rested upon a particular, unchanging form of family. Illustrative is the testimony that former Massachusetts Governor Mitt Romney gave during a congressional hearing on ´preserving marriageµ through a federal marriage amendment, held in 2004 just after same-­sex couples MARK E. BRANDON, STATES OF UNION: FAMILY AND CHANGE IN THE AMERICAN CONSTITUTIONAL ORDER 2 (2013). Id. (quoting MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 1 (1989)). LINDA C. MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 1 (2006). COMMON AND UNCOMMON FAMILIES began marrying in Massachusetts. Governor Romney referred to the family unit as underpinning ´all successful societiesµ and as ´the single most powerful force that preserves society across generations, through centuries.µ8 He then asked: ´Should we abandon marriage as we know it, and as it·s been known to the framers of our constitution? Has America been wrong about marriage for 200-­plus years?µ9 II. BRANDON·S CONSTITUTIONAL STORY States of Union is a wry and engaging answer to these rhetorical claims about an unchanging form of family and marriage as well as the relationship between that form and our constitutional order. Brandon ´tests some of the claims of proponents of family valuesµ about the relationship between the family and the political and constitutional order, or³to conjure his title³between the state of the family and the state of the union.10 His title·s reference to ´states of unionµ previews his skepticism about the appeal to one, unchanging family form. Indeed, he explains that his book will ´offer discrete glimpses into American familial households across time,µ an historical examination that reveals that the ´history of family in the United States³and how it came to be in the Constitution³has been a story of change and contestation,µ11 rather than of a natural family undisturbed since the founding until the social and constitutional change beginning in the 1960s. These ´glimpsesµ are rich and illuminating. Brandon makes a valuable contribution to our understanding of the place of families in the constitutional order. Moreover, by focusing on distinct types of ´American familial householdsµ over time, the book valuably highlights the interplay of family pluralism, legal regulation, and constitutional development. In his focus on the ´American constitutional orderµ and on the relatively late date at which the U.S. Supreme Court ´read a form of family into the Constitution,µ12 Brandon·s book valuably complements the story told in Nancy Cott·s excellent and informative book, Public Vows: A History of Marriage and the Nation.13 Cott·s thesis was: Preserving Marriage: A View from the States: Hearing before the S. Comm. On the Judiciary, 108th Cong. 7 (2004) (statement of Mass. Gov. Mitt Romney) [hereinafter Romney Statement]. 10. BRANDON, supra note 1, at 7. 11. Id. at 7, 266. 12. Id. at 211 (emphasis added). 13. NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000). I organized and contributed to a book reYLHZV PSRVLXPIRU3URIHVVRU&RWW·VERRNLQWKHMRXUQDOTHE GOOD SOCIETY. Linda C. McClain, 7KH3ODFHRI0DUULDJHLQ'HPRFUDF ·V)RUPDWLYH3URMHFW, 11:3 THE GOOD SOC·Y 50 (2002). VANDERBILT LAW REVIEW EN BANC ´From the founding of the United States to the present day, assumptions about the importance of marriage and its appropriate form have been deeply implanted in public policy, sprouting repeatedly as the nation took over the continent and established terms for the inclusions and exclusion of new citizens.µ14 Her book tells the story of how ´[p]olitical and legal authorities endorsed and aimed to perpetuate nationally a particular marriage model: lifelong, faithful monogamy, formed by the mutual consent of a man and a woman, bearing the impress of the Christian religion and the English common law in its expectations for the husband to be the family head and economic provider, his wife the dependent partner.µ15 The founders viewed this form of marriage, Cott explained, as ´especially congruent with American political ideals,µ including consent as the ´hallmarkµ of representative government.16 Cott·s book explicated the tensions between the role of monogamous marriage as a powerful political metaphor and the ´gender orderµ that marriage helped to shape, which included the common law model of the husband as the legal representative DQG´headµ of the household and the wife as losing her ´civic presenceµ as she was ´absorbed into her husband·s legal and economic persona upon marrying.µ17 States of Union, in contrast, emphasizes the relatively late entrenchment of the monogamous nuclear family in the constitutional order. Brandon reveals the complexity of the connections ´between law and family,µ and how these have been ´simultaneously sympathetic and antagonistic,µ depending not only on ´timingµ but also on ´the form of family that·s at issue.µ18 Cott·s ´archaeology of American monogamyµ begins with the founders· ´political theory of marriageµ and then elaborates on how, under this political theory, the new nation depended on monogamy19 and, at various points, ´[t]raditional monogamy appeared to need bolstering.µ20 The most notable example of such bolstering is the late nineteenth-­century federal campaign against the Mormons, memorably upheld by the U.S. Supreme Court in Reynolds v. United States (as I discuss below).21 Brandon similarly 14. COTT, supra note 13, at 2. 15. Id. at 3. 17. Id. at 3, 7. 18. Id. at 7. 19. Id. DW  QRWLQJ LQ D FKDSWHU HQWLWOHG ´$Q $UFKDHRORJ  RI $PHULFDQ 0RQRJDP µ WKDW 20. Id. at 105. 21. Id. at 105;; see also Reynolds v. United States, 98 U.S. 145 (1878). COMMON AND UNCOMMON FAMILIES begins with the ´English ancestryµ of ´the American law of family.µ22 He, by contrast, emphasizes a perhaps surprising degree of pluralism in forms of American households and, in his account, Reynolds and similar cases indicate the relatively late entrenchment of Christian monogamous marriage in the constitutional order. His book aims to show reasons for skepticism of the claim that an unchanging family form, and attendant family values, undergird the constitutional order. His story, then, is of the coexistence of different forms of households in America even before the founding, the different types of virtues and values generated in those households, and finally, the different regulatory approaches taken toward those families. Brandon also reminds contemporary readers that, for the founders and the framers, ´familyµ did not always have positive and glowing connotations either as the seedbed of civic virtue or the indispensable foundation for good morals. To the contrary, they viewed certain types of families as problematic and sought to avoid them: they rejected Britain·s institution of the hereditary monarchy, and they also abolished certain feudal doctrines that permitted family dynasties and the concentration of wealth and power within families by restricting the alienation of land.23 Thus, Brandon explains: ´When the Constitution appeared on the scene, neither it nor its proponents said much about family, other than to worry about potential problems of familial self-­dealing within government and the need to inhibit the rise of familial dynasties.µ24 While the Constitution did not say much about the family, Brandon does grant that ´assumptions about the forms and functions of families were in the background.µ25 He asserts that ´no single type of family provided an exclusive form for nor fit with the polity,µ explaining that distinct family types connoted distinct virtues and In fact, there were three prominent types for which one might have found support. One, the Jeffersonian model, was an agrarian family of independent farmers residing on land that was owned fee simple, free from bondage to lords, and congenial to the organic localist production of democratic virtue. The second, Hamiltonian, model was linked to commercial capitalist modes of production and to nationalist, liberal, and individualist virtues. The third was the slaveholding family, apology for which could be traced to the Bible, to sociology, and to a form of Aristotelian natural law. It was not strictly nuclear in form, nor consistently monogamous in practice.26 22. BRANDON, supra QRWHDWHQWLWOLQJFKDSWHU´(QJOLVK$QFHVWU RIWKH$PHULFDQ /DZRI)DPLO µ 23. Id. at 69²79. 24. Id. at 263. 26. Id. at 263²64. VANDERBILT LAW REVIEW EN BANC Brandon then offers what may be the most provocative claim in his book: the slaveholding family ´came closest to enjoying explicit constitutional sanction,µ27 or, as he puts it elsewhere in the book, ´the Constitution acknowledged and even entrenched one particular form of family: the slaveholding household.µ28 Pointing out that ´slavery didn·t square neatly with republican values,µ he stresses that it was nonetheless ´legally protected and, for decades after the constitutional founding, slaveholding households were present in every region in the country.µ29 Eventually, the ´intense political debateµ over slavery would play a role in the ´breakdown of the constitutional order,µ and the failed attempt at a ´second secession[]µ by southern states.30 Brandon·s book illuminates how part of the conflict over slavery included conflict over what place, if any, slaveholding households would have on the frontier, where there was a fourth family type, ´the frontier family.µ This category might more accurately be called frontier ´families,µ since there were ´several versions of the family on the frontier, linked to distinct modes of production, from farming, to ranching, to mining, to bourgeois trades and occupations that grew in or around settlements that dotted the West.µ31 These families, he argues, ´tended to strongly exhibit the colonial characteristics of negotiated roles, equality (especially of gender), and exit.µ32 Indeed, by necessity, frontier families manifested those characteristics even more strongly than their eastern counterparts. Brandon explains that, while American law ´retained elements of English law,µ including its ´disabling [for wives] doctrine of coverture,µ for families on the frontier, harsh conditions challenged the ´eastern template for family rolesµ and ´impelled departures from convention,µ with husbands and wives taking on, respectively, feminine and masculine tasks and shifting expectations within marriage.33 Brandon explains that ´[f]or many years after the constitutional founding, the nation did not decisively take sides in the competition between slaveholding families and white nuclear families on the frontier.µ34 27. Id. at 264. 28. Id. at 9. 30. Id. at 81. 31. Id. at 264. 32. Id. Brandon here draws on the Carl Degler·VDUJXPHQWDERXWWKHWhree characteristics RI WKH ´¶modern American family·µ WKDW ´¶HPHUJHG ILUVW LQ WKH HDUV EHWZHHQ WKH $PHULFDQRevolution DQG DERXW ·µ Id. at 114 (citing CARL N. DEGLER, AT ODDS: WOMEN AND THE FAMILY IN AMERICA FROM REVOLUTION TO THE PRESENT 8²15 (1980)). 33. Id. at 114, 126. 34. Id. at 11. COMMON AND UNCOMMON FAMILIES Brandon·s claim about slaveholding families is perhaps his most provocative because such a claim poses an uncomfortable challenge to arguments that at the ´time of the founding of the Constitution, it was widely believed that a certain form of organization of family (the marriage-­based family) was essential to cultivate civic virtue,µZKLFKLV ´an indispensable prerequisite for any republican . . government.µ35 That family, on this view, ´was the substructure upon which the superstructure of the Constitution was erected.µ36 Proponents of such a view, for example, tend to omit slaveholding families from their analysis and contend that the ´racial familyµ supported by political leaders and policed by anti-­ miscegenation laws in post-­Civil War America37 was a corruption or ´captureµ of marriage to promote racist ideologies.38 By contrast, Brandon points out that even an ´antislavery politicianµ like Abraham Lincoln held ´racialist views of home and family,µ and argued that the territories on the frontier should be reserved for ´free white laborers, who want the land to bring up their families upon,µ thus avoiding racial mixing.39 III. UNCOMMON FAMILIES States of Union also offers glimpses of some ´uncommon families,µ unconventional households that deviated from the nuclear model of family, and examines the distinct ways that ´legal and political institutions tended to deal with each form.µ40 Brandon calls these families ´uncommonµ not because they were rare, but because they ´departed from the legal template that the common law (broadly conceived) presumed to impose.µ41 Indeed, Brandon finds it noteworthy ´that these experiments were as frequent as they were.µ42 He also draws attention to how the experiments played out in different regions of the United States: the ´seedbed for experimentation was New England, [and] the expanding western frontier became a place for transplantation,µ while ´southern soil 35. Lynn D. Wardle, The Bonds of Matrimony and the Bonds of Constitutional Democracy, 32 HOFSTRA L. REV. 349, 350 (2003). 37. BRANDON, supra note 1, at 80, 101. 38. See Lynn D. Wardle & Lincoln C. Oliphant, In Praise of Loving: Reflections on the ´/RYLQJ$QDORJ µIRU6DPH-­Sex Marriage, 51 Howard L. J. 117 (2008). 39. BRANDON, supra note 1, at %UDQGRQDFNQRZOHGJHVWKDW/LQFROQ·V´SRVLWLRQRQUDFH 40. Id. at 264. 41. Id. at 151. VANDERBILT LAW REVIEW EN BANC tended to be inhospitable to these experiments.µ43 The institutional response to these ´uncommon familiesµ entailed ´the gradual nationalization and constitutionalization of the morality of family,µ44 culminating (as I discuss below) in the Supreme Court·s various anti-­ polygamy decisions. This review cannot do justice to the rich sketches Brandon offers of a sampling of these ´uncommon families.µ Some elaboration will afford the reader a sense of how these groups perceived family and marriage and how the society around these groups perceived them, sometimes precipitating legal and political responses. By focusing primarily on groups whose communal families found their roots in religious inspiration or teaching, Brandon makes the instructive point that, ´far from being a source of social stability, religion was the engine for radical experimentation in the forms, functions, and values of family.µ45 Indeed, to pick up on the ´seedbedµ imagery Brandon introduces, these uncommon families inspired by religion seem to unsettle the conventional expectation³often traced back to the founding³that both religion and the family would be seedbeds of virtue undergirding America·s ´experiment in ordered liberty.µ46 Through freedom of conscience and belief, then, ´[l]aw provided a space in which a group·s associations and productive enterprises might flourish.µ47 By the same token, perceived affronts to sexual morality were a limiting condition on the degree of tolerance for such experiments. Brandon begins with communal families prior to nationhood, which were ´ascetic, pietist, millenarian, and Protestant.µ48 While some of these groups permitted marriage, they extolled celibacy as they ´prepar[ed] for Christ·s second coming and for their own spiritual rebirth in the kingdom of heaven,µ finding doctrinal support in the writings of the Apostle Paul.49 Some forms of communal life, such as a pietist group initially called ´the Solitaryµ and renamed (as it grew) ´The Community at Ephrata,µ included segregating men and women, 45. Id. at 180. 46. MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF AMERICAN POLITICAL DISCOURSE ´WKHUHLVPXFKHYLGHQFHWKDW>WKH)RXQGHUV@FRXQWHGRQIDPLOLHVFXVWRPreligion, and convention to preserve and promote the virtues required by our experiment in RUGHUHG OLEHUW µ 0F&ODLQ VXSUD QRWH 7 DW  H[SODLQLQJ WKH ´FLYLO VRFLHW  SURSRVLWLRQµadvanced by Glendon and others that the founders assumed that institutions of civil society³including the family and religion³would be seedbeds of civic virtue). 47. BRANDON, supra note 1, at 180. 48. Id. at 152. COMMON AND UNCOMMON FAMILIES who both lived in celibacy (thus ´suppressing erosµ).50 Interestingly, married people joined this group, which repudiated marriage and attributed ´the marriage stateµ to ´the fall of man.µ51 The group·s communism (the sharing of property) did not trigger reaction by public authorities, but instead conflict arose when the group resisted paying a ´single men·s tax,µ contending that they were a ´spiritual familyµ and should not be put in the same class as ´rogues and vagabonds.µ52 They were willing, however, to ´pay of their earthly possessions what was just.µ53 The judge accepted the bargain, thus, Brandon quips, ´making Ephrata the first officially recognized same-­sex family in North America.µ54 This group also came into conflict with civil authorities in 1744 when the leaders, the Eckerlin brothers, constructed a building where civilly married husbands and wives could give each other ´letters of divorceµ in order to pursue ´spiritual celibate livesµ by entering, respectively, the Brotherhood of Zion and the Roses of Saron.55 Following a civil investigation into these ´extra-­legal divorces,µ Beissel, the founder, ´recanted and ordered the couples to return to their previously married lives.µ56 Brandon observes: ´Even on the fringe of European settlement, the civil authority was jealous of its control of marriage and divorce.µ57 Otherwise, the Brotherhood engaged in many economic pursuits, with a ´diverse portfolio of industrial venturesµ that brought ´an impressive level of material This emphasis on material prosperity is also relevant to Brandon·s recounting of the Shakers, a communal group led by a woman, Ann Lee. The group was ´forming in the wilderness of upstate New Yorkµ just as Ephrata was dissolving.59 Lee migrated from England to New York in 1774, just before the Revolution. Renouncing ´lustful gratifications of the fleshµ and ´distancing herself from her marriage both psychically and physically,µ Lee, or ´Mother Ann,µ 50. Id. at 155. 52. Id. at 156. 54. Id. %UDQGRQ OLQNV WKH ´VLQJOH PHQ·V WD[µ WR 4XHHQ (OL]DEHWK·V DWWHPSW GLVFXVVHG LQ Chapter 2 of his book, in sixteenth FHQWXU (QJODQG´WRLGHQWLI DQGFRQWURO¶PDVWHUOHVVPHQ·µ Id.;; see id. at 51 (explaining that, in 1579 ´4XHHQ (OL]DEHWK LVVXHG D SURFODPDWLRQ DJDLQVW¶5RJXHV DQG 9DJDERQGV DQG DOO ,GOH >DQG 9DJUDQW@ SHUVRQV DQG 0DVWHUOHVVH PHQ KDYing not wherewith to live . . E DQ ODZIXO/DERXURU2FFXSDWLRQ·µ 55. Id. at 156. 58. Id. at 156²57. 59. Id. at 157. VANDERBILT LAW REVIEW EN BANC preached that the Shakers ´had already risen with Christ, but the cost of resurrection was to ¶forsake the marriage of the flesh.· µ60 The group survived the death of its charismatic leader in 1784. Its theology embraced the equality of men and women in their ´rational faculties and governing powerµ as a basic biblical tenet and viewed God as a duality, including ´the likeness of male and femaleµ rather than a Trinity.61 The Shaker community, moreover, would be a new spiritual family, a ´marriageless family,µ for Shakers insisted that ´disorganizing [nuclear] families, and dissolving the ties of natureµ were necessary to attain the ´gospel relationµ required of Christ·s kingdom on earth.62 Brandon points out that the Shakers on the one hand recognized monogamous marriage as a ´civil right and a civil institution,µ but on the other as ´not an institution with a connection to Christianity, properly understood.µ63 Thus, Mary Dyer, who originally joined with her husband and their five children but subsequently left, wrote and spoke against the Shakers as destroying the family.64 Brandon notes that she unsuccessfully petitioned the New Hampshire legislature for a custody order for her children, but later obtained a divorce when the legislature passed a law providing as a ground for divorce that a ´spouse [had] joined and stayed for at least three years with a sect that professed that ¶the relation between husband and wife [is] unlawful.· µ65 In granting the divorce, the court observed that Mary·s husband, Joseph, by failing to cohabit with her, ´had failed in a duty that was ¶the great end of matrimony, the continuation of the species.· µ66 Notwithstanding the Shakers· unconventional views about marriage and their uncommon family form, Brandon reports that, by the mid-­nineteenth century, ´most Americans . . extended to the Shakers a sincere if sometimes grudging respect for the way of life they produced.µ67 In words evocative of Chief Justice Burger·s opinion in Wisconsin v. Yoder (speaking of the Amish community), Brandon continues: ´If they were odd, they were productive, honest, and essentially harmless.µ68 Some observers, such as Friedrich Engels, went beyond grudging respect to outright praise for a group that seemed capable of forming a well-­ordered society without marriage, 60. Id. at 159. 61. Id. at 160. 62. Id. at 161. 64. Id. at 164²65. 65. Id. at 165. 67. Id. at 167. 68. Id.;; cf. Wisconsin v. Yoder, 406 U.S. 205 (1972). COMMON AND UNCOMMON FAMILIES ´bourgeoisµ property, and without ´the laws of the land.µ69 Courts also, Brandon observes, showed a ´surprising level of toleranceµ toward the Shakers;; to illustrate, he notes the willingness of the Michigan Supreme Court to define ´family,µ for purposes of an insurance policy, as including ´any group constituting a distinct or social body,µ and even ´whole sects, as in the case of the Shakers.µ70 As a contrasting example of a communal family that ´repudiated marriage and committed itself to sustained economic self-­ sufficiency,µ Brandon discusses the Oneida community, which ´publicly parted company with the Shakers on the matter of sex.µ71 Instead of repudiating sexuality and ´the flesh,µ the Oneida community founder, John Humphrey Noyes, articulated a vision of channelling sexuality that included ´complex marriageµ (or non-­ monogamy), male continence (refraining from ejaculating during or after sex unless pregnancy was intended), and also the social control of reproduction by ´stirpicultureµ (or ´the cultivation of the raceµ).72 Like the Shakers, the Oneida community espoused the equality of men and women. These unconventional sexual beliefs and practices brought the Oneida into conflict with civil authorities and religious leaders at various points, Brandon chronicles, particularly with New York Congressman Anthony Comstock. Comstock was responsible for the Comstock Law, which criminalized the mailing of ´ ¶obscene, lewd, and/or lascivious material,· including information about contraception or abortion.µ73 Not only did that law bar a sizable segment of the Society·s tracts, but ´[p]ro-­Comstock forces . . adopted resolutions condemning the community as a ¶pernicious institution which rests substantially on a system of organized fanaticism and lust,· µ and a major convention of churches urged an investigation of the community.74 Up until this point, the Oneida community had enjoyed ´stunning prosperityµ in its original and five additional locations and had weathered various storms brought on by investigations into their rumored sexual practices. Noyes proposed abandoning complex marriage and holding onto economic communism to address the group·s unpopularity;; although his proposal was ratified, the community itself dissolved just a few years later, leaving only a holding company.75 69. BRANDON, supra note 1, at 166. 70. Id. at 167. 71. Id. at 168. 72. Id. at 170²75. 73. Id. at 177. 75. Id. at 177²78. VANDERBILT LAW REVIEW EN BANC Brandon sums up his analysis of these uncommon families by noting that Aristotle recognized two ´naturalµ and constitutive functions of the household: production and reproduction.76 Although these communities ´might be intensely committed to a religious idea,µ what allowed them to flourish in the long term was ´a practical commitment to material sustenance and well-­being.µ77 Remarkably, the Shakers ´sustained their communities for generations,µ as new members joined, even though they foreswore ´the sexual means through which reproduction takes place.µ78 The Oneidas, also a highly productive community, ´were badgered into abandoning their familial experimentµ because of the concern of their opponents over, as Brandon puts it, ´who was having sex with whom, and to what end.µ79 IV. THE BATTLE AGAINST MORMONISM AND THE CONSTITUTIONAL ENTRENCHMENT OF THE MONOGAMOUS FAMILY States of Union then turns to the Mormons, ´uncommon familiesµ with a particularly significant place in ´the story of the relation between families and the American constitutional order.µ80 As he notes, the story of the rise of Mormonism in the United States, the westward migration of the Mormons, and the federal government·s campaign against polygamy and the theocracy of the Utah territory has been told many times.81 So too has the denouement of the Church of Latter Day Saints· revelation that it should discontinue the practice of plural marriage and Utah·s admission to the Union, with a provision in Utah·s constitution guaranteeing ´perfect toleration of religious sentiment,µ while forever banning the practice of ´polygamous and plural marriages.µ82 Constitutional law and family law casebooks excerpt Reynolds v. United States,83 perhaps the best known of the U.S. Supreme Court·s many decisions involving the Mormons. Brandon·s central point in this part of his book is that ´[t]he resolution of the Mormon Question completed a process through which 76. Id. at 178. 79. Id. at 179. 80. Id. at 181. 82. For an often-­cited account, see SARAH BARRINGER GORDON, THE MORMON QUESTION: POLYGAMY AND CONSTITUTIONAL CONFLICT IN NINETEENTH CENTURY AMERICA (2002). For %UDQGRQ·VDFFRXQWVHHBRANDON, supra note 1, at 180²210)RU&RWW·VVHHCOTT, supra note 13, at 105²31. 83. 98 U.S. 145 (1878). COMMON AND UNCOMMON FAMILIES constitutionalized.µ84 That process, which he describes in an earlier chapter, ´had begun much earlier in the nineteenth centuryµ against native tribes, whose family forms did not conform to ´the common-­law template.µ85 Brandon points out that, in both cases, Congress perceived a threat to the political order from a way of life incompatible with Christian civilization. Political rhetoric spoke of the incompatibility of ´savage and civilized life,µ86 and of the need to ´kill the Indianµ in Indians so they could assimilate.87 Federal efforts (always disturbing to read) included compelling Indian children to assimilate through attending off-­the-­reservation schools, shoring up the ´manhoodµ and the work ethic of Indian men by dividing reservation land into lots, and suppressing polygamy.88 With respect to the Mormon practice of polygamy, the trope was that polygamy was tantamount to barbarism and incompatible with Christian civilization. Thus, the Reynolds Court claimed that polygamy ´has always been odious among the northern and western nations of Europeµ and, prior to the Mormons, was ´almost exclusively a feature of the life of Asiatic and of African people.µ89 The Court famously linked polygamy to ´stationary despotismµ and monogamy to republicanism. Brandon points out the ´several items of irony and interestµ in Reynolds: 2QHLQYROYHGWKH&RXUW·VLQYRFDWLRQRIWKHVDFUHGWROLPLWUHOLJLRXVO PRWLYDWHGDFWLRQ$QRWKHUZDVWKH&RXUW·VRGGO LQFRPSOHWHDFFRXQWRISROLWLFDOKLVWRU ZKLFKLJQRUHGQRWonly monogamous despotisms but also the long history of concubinage among the royalty DQG DULVWRFUDF  HYHQ RI QRUWKHUQ DQG ZHVWHUQ (XURSH 6WLOO DQRWKHU ZDV WKH &RXUW·Vhand wringing over patriarchy, essentially declaring it be an un-­American, despite the fact that the United States practiced its own republican version of patriarchy. In fact, Mormon Utah was one of the few places in the United States where women could vote. 7R EH VXUH WKHUH ZHUH OLPLWV WR ZRPHQ·V IUHHGRP LQ H[HUFLVLQJ WKDW ULJKW >WR YRWH@supervised as they were by husbands and church fathers. But they did possess the formal right³for a time, at least.90 The Supreme Court, Brandon details, upheld other federal enactments directed at polygamy, such as the Edmunds Act, which disenfranchised bigamists, polygamists, and cohabitors, and barred 84. BRANDON, supra note 1, at 210. 86. Id. at 143 (quoting Hiram Price, Commissioner of Indian Affairs, on the incompatibility RI´VDYDJHDQGFLYLOL]HGOLIHµ 87. Id. at 146 (quoting Captain Richard Henry Pratt, who established the Carlisle School for ,QGLDQFKLOGUHQ´:HDFFHSWWKHZDWFK-­word. There is no good Indian but a dead Indian. Let us 88. Id. at 142²50. 89. Id. at 205 (quoting Reynolds v. United States, 98 U.S. 145, 165 (1878)). 90. Id. at 206. VANDERBILT LAW REVIEW EN BANC them from jury service and from holding any appointed or elected office in the territory. Once again, the Court stressed the vital relationship between the form of the family and the ´founding of a free, self-­governing commonwealth,µ praising the family ´springing from the union for life of one man and one woman in the holy estate of matrimony,µ as ´the sure foundation of all that is stable and noble in our civilization.µ91 Brandon details a litany of further Congressional acts directed against the territory of Utah and against polygamy. In Davis v. Beason, the Court rejected a claim that polygamy was protected by the free exercise of religion and countered that ´[b]igamy and polygamy are crimes by the laws of all civilized and Christian countries. . They tend to destroy the purity of the marital relation, to disturb the peace of families, to degrade woman, and to debase man.µ92 Brandon points out that, writing in 1890, the Court probably had the Oneida community in mind when it warned of the consequences of allowing the free exercise of religion to include religiously motivated conduct: ´[T]here have been sects which denied as part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes, as prompted by the passions of its members.µ93 Brandon points out, again, the irony of the Court rejecting a free exercise claim by taking a position that resembled an establishment;; that is, that ´the general consent of the Christian worldµ is that the punitive power of government may be used against ´crimesµ that ´the tenets of a religious sectµ encourage.94 Just a few months later, Brandon notes, the Court upheld the authority of Congress to ´repeal the charter of the Mormon Church and seize the church·s propertyµ and, in so doing, referred to the church·s ´nefarious doctrineµ of polygamy and polygamy·s spread as ´a return to barbarism . . contrary to the spirit of Christianity and of the civilization which Christianity has produced in the western 91. Id. (quoting Murphy v. Ramsey, 114 U.S. 15 (1885)). 92. 133 U.S. 333, 341;; see also BRANDON, supra note 1, at 208. 93. BRANDON, supra note 1, at 208²09. 94. Id. Subsequent to the publication of States of Union, a federal district court in Utah VWUXFN GRZQ WKH ´FRKDELWDWLRQµSURQJRI8WDK·V ELJDP  VWDWXWHDQG UDLVHG TXHVWLRQV DERXW WKHcontinuing vitality of Reynolds v. United States, as directed to that part of the statute. Kody Brown et al. v. Buhman, No. 2:11-­cv-­0652-­CW, slip op. at 11²12 and n. 11 (D. Utah, Dec. 13, 2013). The court concluded that Reynolds UHIOHFWV WKH ´HQWUHQFKHG QDWXUH RI DQ RULHQWDOLVWPLQGVHW DPRQJ UXOLQJ HOLWHVµ LQ LWV ´H[SOLFLW ¶GLVWLQFWLRQ EHWZHHQ :HVWHUn superiority and 2ULHQWDOLQIHULRULW µSDUWLFXODUO ZLWKUHVSHFWWRreligious practices. Id. The court observed that ´WKH 6XSUHPH &RXUW KDV RYHU GHFDGHV >VLQFH Reynolds] assumed a general posture that is less inclined to allow majoritarian coercion of unpopular or disliked minority groups, especially when blatant racism (as expressed through Orientalism/imperialism, religious prejudice, or some other FRQVWLWXWLRQDOO VXVSHFWPRWLYDWLRQFDQEHGLVFRYHUHGEHKLQGVXFKOHJLVODWLRQµId. at 11. COMMON AND UNCOMMON FAMILIES world.µ95 Several months later, the president of the church announced a revelation that the Church should discontinue practicing polygamy. Eventually, Congress released the Church·s assets, ´justifying the release on the ground that the church had ceased practicing and advocating polygamy,µ96 and President Cleveland signed the Enabling Act allowing the People of Utah to ratify a constitution and join the U.S. as a state, on equal footing with the original states.97 The polygamy cases, Brandon argues, exemplify one prominent theme in the Court·s ´familial jurisprudenceµ: ´[T]he importance of family in promoting and preserving a kind of moral order.µ98 To reiterate his book·s claim, they are also significant as marking the time ´when the Supreme Court bestowed its blessing on the national policyµ of committing publicly to ´the monogamous nuclear familyµ in the name of ´preserving civilization and progress.µ99 Brandon insightfully adds that, although the Court insisted that ´the nuclear family promoted two abstract values central to the American order: liberty and equality,µ that commitment, arguably, was ´more rhetorical than real,µ given the persistence of ´restrictive family policiesµ and lingering of ´gender hierarchyµ well into the twentieth V. MODERN DEBATES ABOUT THE CONSTITUTION AND FAMILIES When it turns to ´modern times,µ States of Union adeptly identifies certain tensions within the Court·s jurisprudence about the continuing relevance of family to present debates.101 One benefit of Brandon·s book is that his focus on the family in the constitutional order brings into relief certain features of that jurisprudence that are not as evident when encountering it, casebook style, in particular Perhaps the most striking tension concerns the Court·s approach to governmental regulation of the family, which relates in turn to tension over whether to trust families as vital sources of social³and literal³reproduction or distrust them as units that may undermine the political and constitutional order. As the polygamy cases vividly illustrate, the Court has upheld federal governmental 95. BRANDON, supra note 1, at 209 (quoting Late Corporation of the Church of Jesus Christ of Latter-­Day Saints v. U.S., 136 U.S. 1 (1890)). 97. Id. at 210. 98. Id. at 211. 99. Id. at 265. 100. Id. 101. Id. at 211.     VANDERBILT LAW REVIEW EN BANC efforts to prohibit family forms deemed inimical to good political order and republican values (and, as well, to Christianity). As his discussion of federal measures against the native tribes suggests, the federal government perceived that forcing assimilation of Indians into nuclear family forms and instilling proper ´valuesµ in their children was necessary for Indians to continue to exist amidst a Christian civilization. The founders and framers sought to prevent certain types of families they viewed as incompatible with American liberty, that is, feudal and dynastic families and hereditary, monarchical families. Slaveholding households, Brandon points out, came closest to enjoying constitutional sanction and yet, over time, the political and constitutional conflict over slavery led to civil war. Opponents of slavery compared it to barbarism, as bad as or worse than polygamy. Brandon also puts in context the Court·s upholding of compulsory sterilization in Buck v. Bell, which illustrates a willingness to regulate and even restrict family formation on a view that certain families will harm or weaken society. Shocking enough as Justice Holmes·s language in Buck v. Bell (1927) still is, it is even more shocking to read it separated by just a few pages in Brandon·s book (and by a few Supreme Court terms) from the Court·s famous anti-­totalitarian rhetoric in defense of liberty (in parental and other forms) in Meyer v. Nebraska, decided in 1923, and in Pierce v. Society of Sisters, following in 1925.102 Meyer and Pierce feature in contemporary jurisprudence and constitutional argument in support of noninterference with the ´private realm of the familyµ (articulated in Prince v. Massachusetts103 in 1944) and in favor of allowing families to carry out their important tasks of social reproduction. As Brandon details, Skinner, decided in 1942, articulated the basic right ´to have offspring,µ linking it to the right to marry and warning of the ´far-­ reaching and devastating effectsµ of exercising ´the power to The tension between the Court·s recognition both that there is a ´private realmµ of family life and that the family is not immune from regulation continues to the present day. James Fleming and I have described this as a ´two-­stepµ in the Court·s jurisprudence about the regulation of the family, marriage, and parents: ´[F]ollowing quick on the heels of step one³a declaration that something is ¶fundamental· 102. Id. at 216²17 (discussing Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925)). 103. 321 U.S. 158 (1944). 104. BRANDON, supra note 1, at 222. COMMON AND UNCOMMON FAMILIES and ¶private·³is step two³a clarification that it is neither absolute nor beyond regulation.µ105 Brandon illustrates how the emerging jurisprudence of individual privacy limited states· ability to enforce particular family or moral values through law. Complicating the story is the emergence of sex equality in the Court·s Equal Protection jurisprudence, so that the status quo in gender relations within the family upheld by the Court in Bradwell v. Illinois (1873)106 and well into the twentieth century became unconstitutional as the Court took a closer look at sex-­based classifications.107 If nothing else, claims about an unchanging and universally understood meaning of family or marriage stumble in confronting the contrast between the Court·s upholding of sex-­ differentiated roles for husband and wife into the 1960s and the Court·s repudiation of archaic stereotypes about D ZRPDQ·V place in the home in subsequent decades. The Court·s evolving Equal Protection jurisprudence, from upholding anti-­miscegenation laws to striking them down as embodying white supremacy, also undercuts appeals to a timeless form of family recognizable to the founders and yet threatened by more modern conceptions. In other words, the intertwined evolution of the law of marriage and of Equal Protection jurisprudence about gender and the status of women offers a powerful rejoinder to questions like that posed by former Governor Romney at WKHEHJLQQLQJRIWKLVHVVD ´6KRXld we abandon marriage as we know LW DQG DV LW·V EHHQ NQRZQ WR WKH IUDPHUV RI RXU FRQVWLWXWLRQ" Has America been wrong about marriage for 200-­plus years"µ108 Appropriately, States of Union concludes with an epilogue on United States v. Windsor, in which the Court struck down Section 3 of the Defense of Marriage Act ´'20$µ.109 DOMA itself illustrates that strand of thought that Congress must act to preserve traditional (Judeo-­Christian) marriage from threatening forms of family³in this case, marriage by two men or two women. In his dissent, Justice Alito contended that Edith Windsor sought to have the Court ´resolve a debate between two competing views of marriage,µ the ´traditionalµ or ´conjugalµ view and the ´consent-­basedµ vision of marriage.110 105. JAMES E. FLEMING & LINDA C. MCCLAIN, ORDERED LIBERTY: RIGHTS, RESPONSIBILITIES, AND VIRTUES 249 (2013). 106. 83 U.S. 130 (1873). 107. BRANDON, supra note 1, at 228²29. 108. Romney Statement, supra note 8, at 7. 109. Id. at 268²73 (discussing United States v. Windsor, 133 S. Ct. 2675 (2013)). 110. Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). VANDERBILT LAW REVIEW EN BANC Brandon argues that Justice Alito·s dissent relies upon the erroneous view of marriage as fixed and³until recently³unchanged. Although Justice Alito stated that the Constitution ´does not codify either of these views of marriage,µ he also ´asserted that an original understanding of the Constitution would likely support the traditional view,µ111 which is of marriage ´as an exclusively opposite-­sex institution and as one inextricably linked to procreation and biological kinship.µ112 Brandon points out several problems with Alito·s position in Windsor, among them, ´his reduction of views of marriage into two general types,µ when, ´[i]n fact, there is, and has long been in the United States, a wide range of views of the point and purpose of marriage, perhaps as many views as there have been marriages.µ113 In addition, while Alito characterizes the consent-­based view of marriage, ´a vision that primarily defines marriage as the solemnization of mutual commitment³marked by strong emotional attachment and sexual attraction,µ as ´very prominentµ in ´popular understandingµ and ´popular culture,µ114 Brandon points out that certain Supreme Court precedents (such as Turner v. Safley115) ´positively embrace a companionate view of marriage.µ116 Another component of Justice Alito·s argument is his assertion that ´the family is an ancient and universal human institutionµ and that ´family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.µ117 Although Brandon does not discuss this part of the opinion, it too reflects a static view of family that Brandon·s book challenges. Consider, for example, the radical difference in the prescribed and hierarchical gender roles of husband and wife in English common law, adopted by the colonies and U.S. courts and affirmed in earlier Supreme Court opinions, and the modern template of marriage as an equal partnership. The joint opinion in Planned Parenthood v. Casey118 noted the shift from an earlier view of the Constitution, of women, and of the family, which gave husbands authority over their wives, to the contemporary constitutional understanding of women, the family, and marriage.119 111. BRANDON, supra note 1, at 269. 112. Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). 113. BRANDON, supra note 1, at 269. 114. Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). 115. 482 U.S. 78 (1987). 116. BRANDON, supra note 1, at 270. 117. Windsor, 133 S. Ct. at 2715. 118. 505 U.S. 833 (1992). 119. Id. at 897²898. COMMON AND UNCOMMON FAMILIES Brandon·s concluding section on ´American Constitutional Familiesµ usefully pulls together the central messages of his book.120 He observes: ´[T]he history of family in the United States³and of how it came to be in the Constitution³has been a story of change and contestation. . There has always been a plurality of views about the point of and reasons for marriage.µ121 Monogamy, he acknowledges, comes close to a ´constitutional modelµ of family, an ´officially sanctioned institution,µ but even so, ´that has been contested, and its form and function have altered through the years.µ122 Other than that, he counsels, ´there is no constitutional ideal of marriage, nor of family,µ but simply ´constitutional parameters within which debates over marriage and family have played out.µ After all, America ´has always been a place for experiments and for diverse ways of life.µ123 120. BRANDON, supra note 1, at 263. 121. Id. at 266.

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