Legislation and families

One of the most, if not the most, powerful social institutions in the U.S. is the government.  It is important to note that in the United States the federal government has three branches: the Congress, the Executive (President), and the Judicial or Court System. In addition, the Constitution recognizes the rights and responsibilities of state governments; counties and cities have governing structures as well. All of these structures legislate in ways that affect families, some directly and some indirectly. The United States is considered to be a Common Law country, meaning that laws are derived in three ways:  legislation created by governing bodies; administrative rules and regulations; and decisions via judicial courts.

Family Composition

Most family law (including marriage, divorce, and adoption) is governed by the states. When there is a great deal of advocacy, unrest, imequlity, and/or controversy, family-related matters rise to the federal level.  Here are two relatively recent examples:

1. In 1958, Mildred Loving, a woman of color, and her White husband, Richard Loving, were sentenced to a year of prison for marrying each other, breaking Virginia’s “Racial Integrity Act of 1924.” The Lovings appealed their conviction in Virginia and eventually to the U.S. Supreme Court, who ruled in 1967 that all laws banning interracial marriage were violations of the Fourteenth Amendment of the Constitution.  That made it illegal for individual states to restrict interracial marriage.
2.  More recently, the ruling on Loving v. Virginia has been utilized to argue that laws banning same-sex marriages were also unconstitutional.  Between 2012 and 2014, plaintiffs from multiple states filed in state courts to overturn state laws that criminalized same-s marriages.  While several district courts found these laws to be unconstitutional, one district court ruled in favor of the constitutionality of these laws.  With the split between courts, the case rose to the level of the U.S. Supreme Court, which ruled in 2015 that all states must perform and recognize marriages between same-sex couples (see: Obergefell v. Hodges).
   
   

   Figure 1.19. Dates of repeal of US anti-miscegenation laws by state.

Of note is that while the 1967 decision to legalize interracial marriage was a unanimous decision, the 2015 decision to legalize same-sex marriage was closely contested among the Court members and passed by a narrow 5-4 margin.  How would you interpret the differentiated results of these decisions? It appears that there is still disagreement amongst the most powerful in this country about whether the language in the Fourteenth Amendment applies to marriage, gay and lesbian people, or neither. The Amendment states in part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

From Loving v. Virginia (1967) and Obergefell v. Hodges (2015), we can derive some understanding that governments influence whom we marry, how we divorce, and the legal relationships, rights, benefits, and taxes related to parenting, kinship structures, and children.  Critically we must note that the government places value on socially constructed differences such as race, ethnicity, and sexuality in ways that impact individual and family choice.