By Jim Patterson
As the contentious battle over gay marriage plays out in various states and in two Supreme Court decisions, Vanderbilt Law Professor Mark Brandon asks a question that seems particularly relevant: How and when did the institution of the family come under the umbrella of the Constitution?
A constitutional scholar whose past work has addressed the constitutional aspects of slavery and freedom, Brandon chose to answer that question with his new book States of Union: Family and Change in the American Constitutional Order (University Press of Kansas). In it, he challenges the common belief that the nuclear family has always been the legally and morally acceptable model by exploring the historical, philosophical and constitutional foundations of American laws governing marriage and the family.
Brandon counters proponents of “family values” who claim that the definition of family was undisturbed and unchanged until the latter half of the 20th century. Instead, he shows how concepts of the family in America had been fluid since before the country’s founding.
“Concerns about the institutions of marriage and family and how they should be recognized and treated by government were present during the creation of the American constitutional order,” Brandon said. “But the real point at which family, and marriage especially, becomes a constitutional concern was in the regulation of polygamy in the Western territories.” After the Utah territory became part of the nation, Congress passed the Morrill Anti-Bigamy Act outlawing plural marriage in 1862. When it became evident that local courts in areas where polygamy was practiced as part of the Mormon religion were not enforcing the anti-bigamy law, Congress passed the Poland Act of 1874, giving federal courts the power to enforce criminal and civil matters in the territory.
Mormon leader Brigham Young pushed back by having his secretary, George Reynolds, challenge his 1875 bigamy conviction in court on the ground of freedom of religion. In 1878, Reynolds’ conviction was upheld by the Supreme Court in a strongly worded opinion. “The Court held that there was no constitutional prohibition against government’s prohibiting a form of marriage, even a form commanded by one’s religion,” Brandon said. “The Reynolds opinion affirmed the power of government to define marriage and spoke fairly expansively about the importance of monogamous marriage to the constitutional order. It marks the point where marriage becomes a constitutional institution, as articulated in a case decided by the Supreme Court.”
Americans saw and participated in an array of models for marriage and family life in addition to Mormon polygamy, including communal experiments, Native American tribes, African Americans who formed families while living as slaves, and households on the Western frontier. “Same-sex households—some covert, some not—appeared with surprising frequency in the old West,” Brandon said. “Even within nuclear heterosexual households, formal marriage wasn’t always required.”
In Indian tribes of the period, Brandon notes, sexual mores were more permissive than European-American norms, and divorce was easily obtained. African Americans also managed to form families while living as slaves, despite inhibitions built into that system that made it difficult for slaves to establish and maintain families.
Brandon sees in Supreme Court decisions of the past 50 years precedents that can be used to strike down states’ prohibitions against same-sex marriage. “The Supreme Court since the 1960s has imposed limits on states’ authority to restrict access to marriage,” he said. “In U.S. v. Windsor (2013), the Court embraced three principles that lend credence to the same-sex marriage argument.” These include defining marriage as a relationship of special “status and dignity” protected even for same-sex couples; banning government from denying access to that relationship because of a “bare desire to harm a politically unpopular group”; and giving “careful consideration” to whether a restrictive policy violates the Constitution.
By documenting various states of union throughout American history, Brandon’s new book shows how family made its way into the Constitution and helps us understand the implications of family’s inclusion for Americans and the Constitutional order.
Mark Brandon teaches Constitutional Law 1 and 2, First Amendment, and Constitutional Theory. He also is a professor of political science and affiliated with Vanderbilt University’s American Studies program. In addition to States of Union, Brandon has written on constitutional failure, secession, federalism, limits to the amending power, and war in the American constitutional order. His previous book, Free in the World: American Slavery and Constitutional Failure, was published by Princeton University Press in 1998.