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.I. IntroductionThe individual states have long played a primary role in defining the legal family in the United States, with states often determining who does and does not enjoy the legal status of spouse, parent, and child. Two recent U.S. Supreme Court cases, Astrue v. Capato1 and United States v. Windsor,1 2 acknowledged and affirmed the diverse definitions of family that flow from this federalist approach. Yet these cases do not solidify the states' place in defining family for purposes of marriage, parentage, divorce, and death. Instead, they foreshadow an increasingly federal conception of family status-a conception that values private family support over diversity and pluralism.This Article describes this federalization of family status and then analyzes the ways it furthers the underlying reason for legal family recognition: private family support. Federal agencies and courts have increasingly usurped the states' authority to define family. These decisions are not rooted in rejections of state sovereignty, however, or the diversity and pluralism that flow therefrom. Instead, federalism remains an important value so long as it addresses family dependencies and facilitates the private support of those dependencies.Part II examines the role of federalism in the Supreme Court's Capato and Windsor decisions. Although many commentators have analyzed the deployment of federalism in Windsor, in which the Court struck down a provision of the Defense of Marriage Act, this Article offers the first robust comparison of Windsor and Capato, in which the Court affirmed the Social Security Administration's deference to states' intestacy laws when distributing survivors benefits to children. Although the Court decided neither case on federalism grounds, the Court in both cases affirmed the states' primary role in defining family.Yet developments both before and after Capato and Windsor reveal that federal courts and agencies do not consistently defer to states' authority to define family. In fact, the Supreme Court and other federal courts have increasingly imposed definitions of family upon the states. Part III analyzes this federalization of family. In particular, this Article offers the most comprehensive overview to date of the ways federal courts have rejected many states' definitions of marriage post- Windsor.Part IV then analyzes why federal courts and agencies may continue to defer to states' definitions of family in some situations but not others. The Article concludes that a hierarchy of values is at play. Federalism and state sovereignty remain important, but they are not as important as the legal family's private support function. Federal agencies and courts therefore embrace federalism only when it potentially furthers the privatization of family dependencies. …