Law Commons^™

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Faculty Scholarship

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

A substantive due process analysis required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or …

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …