The Yale Law Journal

VOLUME
119
2009-2010
NUMBER
6
April 2010
1122-1361
Feature

Disestablishing the Family

Alice Ristroph & Melissa Murray

119 Yale L.J. 1236 (2010). 

This Feature explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called “free exercise of the family” have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Feature suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.