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case-by-case basis) in the case of policy arguments (albeit instrumental to introducing a comprehensive regime.)

2. A weak constitutional argument

The likelihood of introducing alternative regimes through constitutional litigation is relatively low, and the limits in this approach cannot be overstated.

Preliminarily, the proper venue is not the federal level. Decisions involving the relevant definition of family for purposes of allocating public and private law entitlements are vested in the state.⁴⁶ Therefore, the “battle” cannot be fought at the federal level without impinging on the basic tenets of federalism and vertical separation of powers. The Obergefell decision, and the line of cases on the fundamental right to marry (such as Loving,⁴⁷ Zablocki,⁴⁸ and Turner⁴⁹,) decided under the XIV amendment of the federal constitution, are of little help. At issue here is not the right to marry (as it would be the case under the marriage equality approach,) but a mere non-discrimination right whereby applicants seek the introduction of alternative regimes.

A claim based on the Equal Protection clause alone,⁵⁰ unable to be combined with the fundamental rights’ prong of the substantive Due Process, will not “carry the day.”

As to the reasons for the low likelihood of success of constitutional claims, first of all, when seeking to extend material benefits to new families, the very same case law entrenching marriage as the traditional and privileged institution will come into play.⁵¹

New families will thus face challenges in overcoming the contention that marriage occupies a privileged position in the legal system, as a matter of tradition and social

46 United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675 (2013), slip op., at 16-17 (“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States

… [T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”).

47 Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967).

48 Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673 (1978).

49 Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987).

50 As explained further below, there are reasons to believe that even mere Equal protection claims can hardly be made by new families, given that they do not fall within any of the protected classes.

51 See supra par. 1.3.

structure. Ironically, the mentioned case law aimed at stricking down alternative regimes to include same-sex couples in the definition of marriage, is likely to entrench the discrimination towards all the remaining non-normative families. The point has been raised by queer legal scholars and by activists in LGBT movements holding a so-called liberationist stance.⁵² The marriage equality movement has thus played a significant role in reducing the likelihood of introducing family legal pluralism through constitutional litigation, due to their “obsession” with marriage.

Second, constitutional litigation is not appropriate in light of the constitutional model of protection of the family. The United States adopt a family privacy model.

Notwithstanding the late emersion of a fundamental right to marry, family law has long been aimed at protecting the privacy of the members of the family as such, i.e.

as individuals. As solemnly stated by the Supreme court in Eisenstadt v. Baird,⁵³

“[t]he marital couple is not an independent entity with a mind and hearth of its own, but an association of two individuals.”

The family privacy model, as opposed to the communitarian model embedded in the European legal tradition,⁵⁴ emerges in many leading judgments protecting the right to abortion, contraception, family relationships and childrearing. It is also exemplified in the approach undertaken in the Lawrence⁵⁵ decision, decriminalizing private sexual conduct of homosexuals along Due Process lines. This constitutional approach, paired with the trend toward contractualization, has fostered “a newer individualism in the law of marriage that has undermined the old two-into-one status.”⁵⁶

52 See, e.g., MATTILDA BERNSTEIN SYCAMORE, THAT'S REVOLTING!: QUEER STRATEGIES FOR

RESISTING ASSIMILATION (2008); Jessica R. Feinberg, Avoiding Marriage Tunnel Vision, 88 TUL.L.

REV. 259 (2013); Paula Ettelbrick, Since When Is Marriage a Path to Liberation?, reprinted in WILLIAM B. RUBENSTEIN, CARLOS A. BALL & JANE S. SCHACTER, CASES AND MATERIALS ON

SEXUAL ORIENTATION AND THE LAW 678, 693 (3rd ed., 2008) (“to achieve marriage equality, members of the LGBT community would continually have to tout the similarity of their relationships to those of non-LGBT individuals, and the community would consequently lose its queer identity, an identity that involved challenging oppressive gender roles and “pushing the parameters of sex, sexuality, and family.”)

53 Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972).

54 Paolo Barile, Eguaglianza dei coniugi e unità della famiglia, in SCRITTI DI DIRITTO COSTITUZIONALE 175 (1967); but see Jean B. D’Onorio, La protection constitutionnelle du mariage et de la famille en Europe, REVUE TRIMESTRIELLE DE DROIT CIVIL 1ff (1988) (arguing that unlike many coutries in Europe, France adopts a family privacy model aligned with the model in force in the United States).

55 Lawrence, 539 U.S.

56 Anita Bernstein, For and against Marriage: A Revision, 102 MICH.L.REV. 129, 138 (2003).

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As a consequence, claims aimed at gaining affirmative entitlements for the

“community of individuals” forming the family encounter a double-barreled problem: the individualism of the underlying model, and the general non-justiciability of affirmative rights (i.e. requiring state intervention for them to be fulfilled) under the constitution.

The Obergefell decision, legalizing under the Equal Protection and Due Process clause same-sex marriage operates a deviation from the second aspect concerning affirmative rights, yet not the first, concerning the individualism as opposed to the communitarianism of the model. Under Obergefell the right to marry is cast in terms of a Due Process fundamental liberty which is consistent with the family privacy model to the extent that it furthers personal autonomy, self-fulfillment and fundamental precepts of liberty.

By contrast, the deviation from the second aspect is patent as the practical implication of the decision is that of conferring a status upon new partners, along with the package of benefits accruing through it. As is well-known, “there are three partners to every civil marriage: two willing spouses and an approving State.”⁵⁷ The triangular relationship requires the state to affirmatively step into the realm of private relationships and design a scheme to confer upon the parties rights and obligations.

There is no such thing as a negative freedom to marry (or to enter another family status.) The state could not merely refrain from a certain conduct. Unlike Lawrence,⁵⁸ where the state had merely to refrain from intruding in the same-sex couples’ bedroom, and for that purpose a criminal law had to be struck down, here the states are called upon to open up their marital regimes, by amending laws and regulations confining the enjoyment of the benefits⁵⁹ of marriage to traditional beneficiaries.⁶⁰ In line with this fundamental tenet of the constitutional system, courts fell short of arguing in the past that same-sex couples were endowed with a right to marry, on both textual and doctrinal grounds.⁶¹

57 Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003).

58 Lawrence, 539 U.S.

59 Windsor, 570 U.S.

60 Obergefell, 135 S. Ct. (Roberts J diss. op.) at 17 (“Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.”).

61 Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006).

This point of recognizing same-sex marriages and hence granting affirmative rights drew the criticism from the dissenting justices. Justice Roberts raised objections based on the consolidated constitutional doctrine refusing to “allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.”⁶²

The distinction between negative and affirmative rights is of substance, and it is too well-established in constitutional doctrine to be overstated.⁶³ This suggests that the treatment of same-sex marriage must be seen as an exception rather than the norm in constitutional law. Therefore, whenever applicants seek to extend the relevant definition of family within government programs, they will be confronted with the constraints constitutional liberalism imposes on requests to uphold affirmative rights, since their claim cannot be even backed by the doctrine on the fundamental right to marry.

I intend now to turn to the applicability of the substantive Due Process and Equal Protection clause to new families. The Due Process prong is unserviceable for the extension of entitlements through alternative regimes. The clause is not applicable to new statuses, precisely because they are “new.” Not if we accept an understanding of Due Process as summarized in the famous remarks from Justice Oliver Wendell Holmes: “The law can ask no better justification than the deepest instincts of men.”⁶⁴ Namely, once you have enjoyed something for a long time, it takes root in your being and you cannot simply get rid of it.

There is, however, a wrinkle to this argument that calls for caution: If the Due Process clause is applied to the relationship at stake rather than to the institution, the protection of relatives would be warranted by the Constitution. Given that that the boundaries of substantive DP are drawn based on history, one should not forget that extended families were the predominant model in the pre-industrialization era.

Aware of this, the Supreme Court decision in Moore,⁶⁵ in stricking down a zone ordinance excluding a grandmother and grandson living together from the relevant definition of “family,” held that the nation’s history and tradition suggest that notion

62 Obergefell, 135 S. Ct. (Roberts J diss. op.), at 18; (Thomas J diss. op.) at 7.

63 Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998 (1989), at 196; San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973), at 35–37.

64 Oliver W. Holmes, Jr., The Path of the Law, 10 HARV.L.REV. 457, 477 (1897).

65 Moore v. E. Cleveland, 431 U.S. 494, 97 S. Ct. 1932 (1977).

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of family go beyond the nuclear family and extend to “uncles, aunts, cousins, and especially grandparents.”⁶⁶

As to the Equal Protection, I shall clarify the different standards it can trigger. There is a scale of protections associated with each ground.⁶⁷ Pursuant to the rational basis test, where a ground is not invoked, a mere rational connection between the allegedly discriminatory action and the legitimate aim is to be established.⁶⁸ This standard is highly deferential in that a presumption of rationality operates in favor of state action. Thus, challenged laws under this standard of scrutiny are unlikely to succeed.

Second, there is an intermediate scrutiny, usually for discriminations based on sex, that triggers a less demanding standard as compared to strict scrutiny.⁶⁹ Law setting distinctions based on gender, must be narrowly tailored to achieve a compelling government interest.

Ultimately, the strict scrutiny test, which can be triggered when the distinction is based on sensitive ground as race or national origins,⁷⁰ is more stringent in that the

66 Id.

67 Peter S. Smith, The Demise of Three-Tier Review: Has the United States Supreme Court Adopted a

"Sliding Scale" Approach Toward Equal Protection Jurisprudence?, 23 J.CONTEMP.L. 475 (1997);

Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL.L.REV. 341, 343-65 (1949).

68 The reasons triggering this less demanding standard can be many. See Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986), at 194 (“The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249 (1985), at 443 (“Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation.”); id, at 445-46 (“[I]f the large and amorphous class of the mentally retarded were deemed quasi-suspect … it would be difficult to find a principled way to distinguish a variety of other groups … One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm.”).

69 Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976).

70 The factors considered in the decision as to whether strict scrutiny should be triggered are many, and are recalled in R. Randall Kelso, Standards of Review Under the Equal Protection Clause and Related Constitutional Doctrines Protecting Individual Rights: The “Base Plus Six” Model and Modern Supreme Court Practice, 4 J.CONST.L. 225, n.20 (2002). These factors can be derived frfom several decisions, e.g., Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110 (1942), at 541 (“Marriage and procreation are fundamental to the very existence and survival of the race … We advert to [these matters] merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential.”); United States v. Carolene Prods. Co., 304 U.S. 144, 58 S. Ct. 778 (1938), at 152 n.4 (considering whether the statute is “directed at particular religious, or national, or racial minorities,” or reflects “prejudice against discrete and insular minorities,”); Frontiero v.

Richardson, 411 U.S. 677, 93 S. Ct. 1764 (1973), at 686 (“[S]ex, like race and national origin, is an immutable characteristic determined solely by the accident of birth … .”); id, at 684-85 (“There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination … [Our] statute books gradually became laden with gross, stereotyped distinctions between the sexes …”); Plyler v.

Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982), at 220 (“[I]mposing disabilities on the … child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual

aim must usually be a compelling one, and the law or policy must be narrowly tailored and result in the least restrictive means which can be adopted to further the public interest.⁷¹

Now, the underlying non-discrimination approach embedded in the Equal Protection clause requires a status to be already in place. Therefore, the non-discrimination principle would be unable to compel states to introduce new regimes.⁷² While in theory it could be conducive to extending regimes already in place such as domestic partnerships, new families do not fall into any of the protected classes. They are not a suspect nor quasi-suspect class. Therefore, a ultra-deferential rational basis standard would be triggered, which makes it unlikely for their claim to be uphold.

Furthermore, the family privacy model would still pose an unsurmountable hurdle to this extension for the reasons stated above, especially the skepticism with which justices approach questions regarding positive entitlements.

In the end, the overall constitutional framework in the United States suggests that the recognition of non-normative relationship be pursued through policy-based arguments rather than through the Constitution. The task of the next section is to build such an argument.