The Right Family

Abstract

The family plays a starring role in American law. Families, the law tells us, are special. They merit, among others, tax deductions, testimonial privileges, untaxed inheritance, parental presumptions, and, over the course of the twentieth century, the Supreme Court has expanded individual rights stemming from familial relationships. In this Article, we argue that family matters as much for when it is ignored as for when it is featured. We shed light on the use of the family in the law by contrasting policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly disparate recent areas of policymaking—the travel ban, family separation at the southern border, agricultural subsidies, and the religious rights of closely held corporations—we explore the interplay between the family, the individual, and the corporation in modern law. We observe that both liberals and conservatives make use of the family to humanize or empower certain people, and both reject the family when seeking to dehumanize or disempower. Where liberals and conservatives differ is over which families to champion. Ultimately, we conclude that the use of family as a mechanism through which to confer rights and benefits becomes a cover to hide policies that entrench and exacerbate existing racial and religious hierarchies. Further, in the context of family businesses, it risks becoming a stepping stone for radical expansion of rights to businesses themselves. To tell this story, we analyze the use and rhetoric of family in politics, in the media, and in recent Supreme Court decisions such as Trump v. Hawaii (2018), Burwell v. Hobby Lobby (2014), Kerry v. Din (2015), and Masterpiece Cakeshop v. Colorado Civil Rights Comm’n (2018).