Family Law's Challenge to Religious Liberty

Authors

Raymond C. O'Brien

Document Type

Article

Abstract

Over time, the definition of family has shifted from being premised upon kinship to legal status. In modern times, family structure is based more upon function than form, seeking to derive its status as a family from the subjective intent of its members to act as a family. Many early settlers in the colonial territories came to America to escape religious persecution and practice their own religion.

For that reason, biblical language and religious doctrine formed the basis for common law, statutes, and practice. Today, there remains the notion among many Americans that the law represents a divine plan and a natural order to things. However, this notion has been challenged throughout the twentieth and twenty-first centuries on the public level through civil and criminal litigation, and on the private level through increasing numbers of individual adults turning away from form families. This rejection of form families demonstrates a modern preference among American adults for private-ordering lives in order to maximize their choices and expand opportunities thereby challenging family law structures. These challenges have evolved through seminal Supreme Court decisions from the right to marital privacy, the right to be let alone, and the personal choice to end a pregnancy, to the liberty interest protecting intimacies among consenting adults.

This article argues that these challenges have provoked a significant reaction from individuals and religious organizations advocating a distinctive worldview based on religious and historical values. Specifically, the article focuses on four aspects of family law that have been challenged by private-ordering: divorce, marriage, adoption, and parentage. Each section of the article analyzes the progression from the traditional standards to the challenges presented by private-ordering. Part I focuses on family law structures, Part II considers divorce, Part III examines marriage, Part IV analyzes adoption, and Part V evaluates parentage.

Recommended Citation

Raymond C. O'Brien, Family Law's Challenge to Religious Liberty, 35 U. Ark. Little Rock L. Rev. 3 (2012).
Available at: https://lawrepository.ualr.edu/lawreview/vol35/iss1/2