Introduction to Family Law Quarterly, Volume 56, Numbers 2&3

This volume opens with what some believe to be the most consequential ruling for gender equality since the Court recognized a constitutional right to abortion in Roe v. Wade.⁵ In “The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s Health Organization,” Professor Carol Sanger discusses reproductive rights cases over the last century from Buck v. Bell⁶ and Skinner v. Oklahoma⁷ to Roe, and from Planned Parenthood of Southeastern Pennsylvania v. Casey⁸ to Whole Woman’s Health v Hellerstedt,⁹ to examine the legal and social contexts of the development of constitutionally protected reproductive freedom. While acknowledging that there are many critiques that could be leveled against the Dobbs majority decision overruling Roe, she focuses on its omission of women and the reality of women’s lives and its disregard of the liberty and privacy doctrines in the reproductive context.

While the Dobbs majority stated that its ruling was limited to abortion, the dissent expressed concern about the decision’s implications for other cases, including the Court’s marriage equality ruling in Obergefell v. Hodges.¹⁰ As Professor Arthur Leonard observes in his article, “Same Sex Family Recognition and Anti-Discrimination Law: A Free Speech Battleground,” the Court is currently considering for the third time since Obergefell “whether state or local jurisdictions can prohibit private agencies or businesses from refusing to provide services to same-sex couples who are married or intend to marry.” 303 Creative LLC v. Elenis was brought by a website designer who seeks to create wedding websites for heterosexual couples only, in violation of Colorado’s anti-discrimination law. She argues that requiring her business to create websites for same-sex couples would infringe upon her First Amendment free speech rights by compelling her to speak contrary to her religious objections to same-sex marriage. Professor Leonard discusses the legal context for the dispute and the arguments of the parties before the Court, including the website designer’s position that she is an artist engaged in expressive activity. He concludes that the Court should rule in favor of Colorado, given the state’s interest in prohibiting discrimination in public accommodations and the implications of the designer’s arguments for enforcement of nondiscrimination laws.

Three of the articles in this issue discuss Haaland v. Brackeen, in which non-Native American adoptive parents and several states challenge the constitutionality of the Indian Child Welfare Act (ICWA).¹¹ ICWA was enacted in 1978 to curb the unwarranted removal of Indian children, as defined by the statute, from their families and keep them connected to their families, tribal communities, and culture. ICWA provides that when a Native American child is removed from their home, the state ordinarily must attempt to place the child with relatives, members of the child’s tribe, or members of other tribes before considering placement with non-Native families.¹² The plaintiffs allege that these preferences discriminate on the basis of race in violation of the Equal Protection Clause. They also allege that ICWA exceeds Congress’s power over Indian affairs and impermissibly commandeers state governments and courts. The Supreme Court heard oral argument in Brackeen in November 2022 and a decision is expected this spring.¹³

The articles addressing Brackeen tackle a number of issues. First, in “Brackeen and the Domestic Supply of Infants,” Professor Marcia Zug discusses the Supreme Court’s decisions in Dobbs and Fulton v. City of Philadelphia¹⁴ to demonstrate that the majority of the Justices on the current Supreme Court have supported policies that have the effect of increasing the number of infants available for adoption and helping prospective adoptive families that are deemed to be “deserving and desirable.” She argues that the Dobbs majority saw adoption by “suitable home[s]” ¹⁵ as the solution to both unwanted pregnancies and the shortage of infants available for adoption. She further demonstrates how the Court’s decision in Fulton allows faith-based agencies with government contracts to privilege certain types of prospective adoptive parents and effectively bar families that do not meet their religious criteria from adopting or fostering children at all. She then predicts that the Court in Brackeen is likely to hold that “some, if not all” of ICWA’s placement preferences are unconstitutional because they would increase the supply of children available for adoption by parents who have been advantaged by the Court’s decisions.

Second, in “After Brackeen: Funding Tribal Systems,” Professor Kathryn Fort shows that the Brackeen case is the direct result of a state child protection system that incentivizes removal of children from their homes and placement in non-kinship foster homes. She demonstrates that tribal child protection systems that use non-adversarial healing and wellness models better address Native American families’ needs but explains that most tribal governments face significant obstacles when trying to fund their own systems as access to federal funding is unnecessarily difficult. She argues that regardless of the Court’s decision in Brackeen, the federal government should fund tribal child protection systems because they are crucial to ensure that Native American families receive culturally appropriate services and are integral to ICWA’s purpose to promote tribal sovereignty. She discusses potential solutions for funding that utilize a tribal self-governance model.

The final article about Brackeen features a winner of the Family Law Section Howard C. Schwab Memorial Essay competition. In “The Gold Standard of Child Welfare” Under Attack: The Indian Child Welfare Law and Haaland v. Brackeen,” Julia Gaffney provides a brief history of federal and state actions separating Native American children from their families, tribes, and culture and argues that ICWA is crucial to protect the interests of Native American children and their communities. She describes ICWA’s key provisions and explains how it has furthered the best interests of Native American children in the child welfare system by keeping them connected to their families and tribes. She shows, however, that despite ICWA’s success, Native American children are still overrepresented in the child welfare system and experience disparate treatment while in foster care. Thus, she concludes, a decision in Brackeen invalidating ICWA or parts thereof would be detrimental to Native American children and communities.

While Dobbs, 303 Creative LLC, and Brackeen involve Constitutional law, in 2022 the Supreme Court also issued an important ruling interpreting the Hague Convention on the Civil Aspects of International Child Abduction. Narkis Golan, a survivor of domestic violence who brought her child from Italy to the United States, had been ordered to return to Italy with the child subject to “ameliorative measures” intended to address the grave risk of harm to the child on return. The Supreme Court held the district court had discretion to decline to consider ameliorative measures, ruling in Ms. Golan’s favor on the legal issue but remanding her case for further proceedings. In “Golan v. Saada: Protecting Domestic Abuse Survivors in International Child Custody Disputes,” Molshree “Molly” A. Sharma reviews the legal issues before the Court in the case and discusses the Court’s ruling and its significance.

This issue closes with “In Memory of Narkis Golan,” a tribute to Ms. Golan’s life and legacy by Nicole Fidler, one of Ms. Golan’s attorneys. Ms. Fidler recounts the abuse and the legal challenges Ms. Golan faced, while honoring her dedication to her son, her support for other “Hague Moms,” and the positive impact her Supreme Court victory has already begun to have for other domestic violence survivors and their children. As Ms. Fidler writes: “Through her passion, courage, and resilience, she created real and lasting change that will help survivors who follow in her footsteps.”

The articles in this issue highlight the real-life impacts of the Court’s decisions in the family law context, historically and in the years to come.

Endnotes

1. . 142 S. Ct. 2228 (2022).

2. . 142 S. Ct. 1880 (2022).

3. . 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2022), cert. granted in part, 142 S. Ct. 1106 (2022) (No. 21-476).

4. . Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) (en banc), cert. granted sub nom. Cherokee Nation v. Brackeen, 142 S. Ct. 1204 (2022), and cert. granted, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 142 S. Ct. 1205 (2022), and cert. granted, 142 S. Ct. 1205 (2022).

5. . 410 U.S. 113 (1973).

6. . Buck v. Bell, 274 U.S. 200 (1927).

7. . Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

8. . 505 U.S. 833 (1992).

9. . 579 U.S. 582 (2016).

10. . 576 U.S. 644 (2015); see Dobbs, 142 S. Ct. at 2319, 2331–32 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

11. . Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (1978) (codified as 25 U.S.C. §§ 1901–63).

12. . 25 U.S.C. § 1915.

13. . See Transcript of Oral Argument, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Nov. 9, 2022).

14. . 141 S. Ct. 1868 (2021).

15. . Dobbs, 142 S. Ct. at 2259.