Authority and Autonomy: The State, the Individual and the Family

This commentary focuses primarily upon the views expressed by Justice Rehnquist in his de Hirsch Meyer lecture. The author argues that a corollary to Justice Rehnquist's view that the judiciary should defer to the authority of private institutions over the individual, to protect those institutions, would be to adopt a judicial attitude of supporting private institutions against legislative interference. An examination of Justice Rehnquist's judicial opinions in the area of constitutional family law reveals exactly the opposite position. The author concludes that Justice Rehnquist's position of judicial deference to legislative decisions over the family may lead to destruction of the institution rather than to preservation of the family and suggests ways of accommodating the interests of individual family members, the interest of the family as an institution and the legitimate police power and parens patriae regulations of the state.