Is the Family at Odds with Equality? The Legal Implications of Equality for Children

Abstract

The family seems to pose an insoluble dilemma for a liberal society, because it pits liberal values of freedom and equality against each other. When family life privileges adult freedom, children's life chances become unequal due to their parents' different choices and unequal circumstances. But any effort to enact equality of opportunity for children, it seems, would demand such heavy-handed state regulation of the family that it would end family life as we know it. This is an old problem, and theorists who have grappled with it have found themselves caught between two unappealing alternatives: rampant inequality for children, on the one hand, and Brave New World-style institutionalized child rearing, on the other. This Article revisits the liberal dilemma and suggests that one plausible version of liberalism can, at least in principle, combine wide diversity and freedom in family life with equal opportunity for children. But this conclusion arrives with two caveats. First, the theoretical compatibility of the family and equality of opportunity rests on three interpretations which remain contested even within liberal theory: the scope of parental autonomy, the meaning of equality of opportunity, and the functions ascribed to the liberal family. Second, the legal changes necessary to reconcile the family with equality would face practical and political difficulties. An egalitarian regime would require new redistributive programs and tax increases to fund them. A commitment to children's equality would also require revision of constitutional and state law doctrines that prize parental authority and family economic self sufficiency and disclaim positive obligations of the state toward children. The aims of this Article are primarily descriptive rather than prescriptive. The analysis here identifies strands within liberal political theory that can reconcile the liberal values of freedom and equality of opportunity, but it does not attempt to persuade readers either that liberalism is preferable to other normative views or that this particular interpretation of liberal ideals should dominate other interpretations. Nor does the Article attempt to offer a practical political program. Outside the United States, legal principles and initiatives such as those developed here might seem familiar. In the Us. context, however, these reforms would require a thorough revision in legal institutions and in legal principles.