CONSERVATIVE FAMILY VALUES AS CONSTITUTIONAL LAW: PRIVATE REGULATION AND THE EROSION OF FUNDAMENTAL RIGHTS

Abstract:

This Article examines a paradox in contemporary constitutional law: While constitutional rights traditionally protect minorities against majority preferences, the Supreme Court has increasingly enabled certain private actors to override others’ constitutionally protected family formation choices through what this Article calls “private regulation.” The Court’s decisions allow individual private actors to impose traditional religious and moral views on others who do not share those beliefs, while simultaneously embedding those very views in constitutional jurisprudence. This dual approach creates a troubling inversion. Instead of constitutional rights serving their traditional function of protecting minorities from majority overreach, they are being used to empower some private actors to restrict the rights of others.

Through an examination of abortion jurisprudence culminating in Dobbs v. Jackson Women’s Health Organization, the Article demonstrates how the Supreme Court’s expanding accommodation of private religious and moral objections systematically eroded and ultimately helped nullify the constitutional right to abortion. The Court’s approach to these objections increasingly privileged certain traditional views of family formation while limiting protections for alternative family structures and reproductive choices. The Court’s endorsement of religious exemptions, vigilante enforcement mechanisms (a statutory scheme that delegates enforcement of state law primarily or exclusively to private citizens through civil litigation, rather than to state officials through traditional public enforcement), and sites of private manipulation like anti-abortion centers transformed personal religious convictions into de facto law, ultimately paving the way for Dobbs.

This pattern of private regulation is now being deployed against LGBTQ+ rights, particularly targeting same-sex marriage and family formation. Through parallel mechanisms of religious refusals, vigilante laws, and private coercion, conservative actors seek to hollow out Obergefell v. Hodges just as they did Roe v. Wade.

These “private regulation” efforts in the reproductive rights and LGBTQ+ spheres converge in restrictions on assisted reproductive technology, which disproportionately impact LGBTQ+ couples and single persons—those who deviate from an idealized nuclear family model. By stunting substantive due process doctrine, Dobbs impeded the ability to assert fundamental rights to procreation and family formation against both private and public regulation.

The Article argues that the Supreme Court’s deference to private regulation allows a minority to impose its normative vision of family and gender roles onto the broader public, undermining democratic values and constitutionally protected freedoms. However, the Article identifies potential opportunities for resistance, particularly through state-level equal protection arguments and democratic mobilization around assisted reproductive technology access. The analysis provides crucial insights for preserving constitutional rights against this assault by judicial and private actors on non-traditional family formation.

CONSERVATIVE FAMILY VALUES AS CONSTITUTIONAL LAW_ PRIVATE REGULATION AND THE EROSION OF FU.

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