Women’s rights in the family law arena during these times could be in the crosshairs of originalist jurisprudence. Below is a broad view of what could conceivably be at stake, with a view to marriage, divorce, child custody, and trust and estates law.
What is Originalism?
In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".
How Would Originalism Impact Family Law?
In order to understand how Originalism would impact family law, one needs to understand the state of family law as described in the Constitution and Bill of Rights and understood at the time of the creation of these documents.
In 1769, the American colonies accepted the English system called coverture. Women were “covered” under the law by a man from birth. At birth, a woman’s rights were subsumed by her father. Upon marriage, they passed to the husband. During her entire life—unless she became a widow—she had essentially the same rights as a child, a slave, or a person declared mentally unfit. Women did not legally exist. Married women could not own any property and upon the death of her husband, a woman’s legal agency would transfer to her nearest male relative. A husband could take custody of children after a divorce and refuse to allow his ex-wife to see them. He could seize his wife’s property from other heirs upon her death.
During colonial times, the North was more amenable to granting divorces for fault, whereas the South largely prohibited it. In the judicial tribunal of 1629, the Massachusetts Bay Colony was allowed to grant divorces on the basis of adultery, desertion, bigamy and in many cases impotence as well, whereas the southern colonies prohibited divorce even if legislation was in place.
Family law and trusts and estates law were the province of the colonies (later states) and are not mentioned in the Constitution or Bill of Rights.
Where Are We Now in Family Law?
Women’s rights in marriage, property ownership, custody and trust and estates law have radically expanded over the years starting principally in the latter quarter of the 19th century with the advent of the women’s rights movement.
The Supreme Court is a late contributor to the discussion. The Supreme Court has commented on these rights in collected cases over the last 50 years, ruling on issues like equal rights to estate administration (Reed v Reed, 1971), equal rights to alimony (Orr v Orr, 1979), and equal rights to dispose of marital property (Kirchberg v. Feenstra, 1981.)
For example, Kirchberg v Feenstra was a Supreme Court case which held a Louisiana Head and Master law unconstitutional. The law gave sole control of marital property to the husband and indicated the husband's dominance over the wife in the marriage.
The holding was that the law violated the 14th Amendment’s Equal Protection Clause. Gender-based discrimination is unconstitutional absent a showing that the classification substantially furthers an important governmental interest.
Here are the facts. In 1974, Joan Feenstra charged her husband Harold had molested their daughter. Harold hired an attorney, Karl Kirchberg, to defend himself against the charges, and mortgaged the Feenstras' home toward paying the cost of that attorney. Joan was not informed of this mortgage because Head and Master provisions of Louisiana law allowed him to do so without her consent or knowledge. She dropped the charges, and the couple separated. Joan did not learn about the mortgage until 1976, when Harold's attorney returned to demand payment and threatened foreclosure. She then filed a lawsuit arguing that Louisiana's laws giving sole control of marital property to the husband were unconstitutional.
The district court upheld Louisiana's law. On appeal, the Fifth Circuit overturned the district court, finding the law unconstitutionally violated the but limited the application of their ruling to future decisions. Feenstra appealed to the Supreme Court.
Applying intermediate scrutiny as they had in Craig v. Boren, the court held that Louisiana's law lacked an "exceedingly persuasive justification" for its sex-based classification, and therefore was in violation of the Equal Protection Clause of the Fourteenth Amendment
This jurisprudence is not hinged on the law at the founding of the country. It draws from the Equal Protection Clause of the 14th Amendment, which was passed in 1868.
What Could Happen Now?
Imagine if half the states passed laws barring marital property ownership, maternal child custody or the inheritance rights of widows. What could an originalist Supreme Court do?
As mentioned before, the Court would point out that these rights don’t exist in the Constitution or Bill of Rights and the lived experience of colonial life. Even if you skip ahead to the 14th Amendment, an originalist court would probably point out that the Amendment does not expressly mention these rights in the text, represent even a glint in the eyes of the framers of the Amendment, and that the Equal Protection Clause analysis of the modern court did not exist then.
It is entirely conceivable that an originalist Court would overturn the last 50 years of family law jurisprudence and let the discriminatory states continue with their newly minted laws. Women would be immediately bereft of rights in the family law arena.
Are you concerned about your family law rights? California is a leading light in the national family law debate. Contact the Law Offices of Jane Migachyov for a free initial consultation to learn more about these important rights.