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Federal Visions of Private Family Support

Posted by on Wednesday, November 19, 2014 in Articles, Volume 67, Volume 67, Number 6.

Federal Visions of Private Family Support


This Article offers a new perspective on the relationship between family and federalism by analyzing why the government—whether state or federal—recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato, upholding the Social Security Administration’s deference to states’ intestacy laws when distributing benefits to posthumously conceived children, and United States v. Windsor, in which the Court struck down a provision of the federal Defense of Marriage Act. Although each decision affirmed the states’ primary role in defining family status, developments before and after Capato and Windsor reveal that federal agencies and courts are increasingly promulgating federal definitions of family. In particular, federal courts have rejected many states’ definitions of marriage post-Windsor. This Article argues that these developments are not motivated by a rejection of federalism or the diversity and pluralism that is thought to flow therefrom. Instead, federalism remains an important value so long as it does not displace the underlying reason for legal recognition of family: the encouragement of private family support.


Professor of Law, Washington University School of Law. For insightful discussions and suggestions, I thank Susan Appleton, Naomi Cahn, Anne Dailey, Deborah Dinner, Thomas Gallanis, Jill Hasday, Adam Hirsch, Courtney Joslin, John Langbein, Melanie Leslie, Melissa Murray, Doug NeJaime, Jim Pfander, Jeff Schoenblum, Marc Spindelman, Rob Sitkoff, Randall Thomas, and Deborah Widiss. I thank Emilee Hargis and the editors of the Vanderbilt Law Review for helpful research and technical assistance.