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The latter part of the twentieth century produced unprece-dented decades of fundamental change to our family life and

law. Much of what was presaged in the rhetoric of the 1960s wasassimilated into our culture and laws in the 1970s and, accordingly,it was said of the 1990s that they “may seal the doom of the traditional patriarchal family that, in one variation or another,made society function throughout history.”1 But are academicsoften too eager to discard the basic organizational unit of all civilization because of the vast changes families and family lawhave undergone over the past 40 or 50 years? If they are, thenmuch of this haste has risen out of federal involvement in thetraditionally state-regulated arena of family law.

All of this is notwithstanding the fact that there is no family lawin a national unified sense. Rather, 50 sovereign jurisdictionshave their own rules on the subject. Recent interpretation of theUnited States Constitution, however, has made unprecedentedincursions into family law, often upsetting centuries-old statelaws. An increasing volume of federal interest in families, fromchild support enforcement to interstate adoptions or custody disputes, has injected federal authority into family law. Federalsocial and tax regulation has likewise vitally affected manyaspects of family behavior.

Are federal law inroads to family governance beneficial, helpfuland wise? Many would say that a nationally uniform law is muchpreferable to our current state-regulated approach. Others wouldsay that many basic rules of state family law are time-tested andaccepted generally. Then how much federal regulation is needed?Or how much federalization of family law is good? How much ispermissible? How much is tolerable? Could there ever be toomuch federal entanglement in family regulation? Each of theseissues has presented itself in the federal arena in some high-profile cases this past year, often in ways contrary to state rulesalready in place.

What seem to be the trends in this area? Should family law con-tinue to be an area regulated by the laws of the 50 states, for theprotection of the rights of the family, or is a national body offamily law preferred? This article will review these issues in light

of three quite important concerns: federal efforts to curb genderviolence in United States v. Morrison, an international custodydispute in Gonzalez v. Reno, and grandparents’ rights in Troxelv. Granville.

United States v. Morrison2 and The Violence Against Women Act3

Plaintiff Christy Brzonkala, a Virginia Tech student, pursued arape cause of action against fellow students, including AnthonyMorrison, in federal court, seeking to use the Federal Government’sViolence Against Women Act—legislation conceived as a protectorof women. Her choice of forum was federal, she said, becauseshe got no satisfaction from her claim brought in the universitydisciplinary system, and she feared pervasive gender bias in thestate justice system.

In this case, however, the United States Supreme Court ruled thatfederal court is an inappropriate jurisdiction to bring a claim forrape or domestic violence.4 Rape and domestic violence victimscannot, even under this legislation, said the Court, sue theirattackers in federal court. Rather, as part of this Court’s continuingtrend toward limiting the extended reach of the federal governmentvia the Commerce Clause, the Court suggested the pursuit ofstate court remedies.

This case is of particular interest to Virginia family lawyers becauseit is a federal case that originated from a Virginia occurrence,with an available Virginia remedy. Yet federal legislation makingthe forum available, and fear of state court biases, caused theplaintiff to file an action in federal court, rather than state court,where rape and domestic violence issues are generally handled.

Gonzalez v. Reno5

This well publicized case considered the status of a Cuban six-year-old who had asserted his asylum claim through an applicationon his behalf by a third party relative who had been awardedtemporary custody of the child in a Florida family court. This “separation of powers” opinion placed the federal court in the

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What do VAWA, Elian and Grandparents have in common?

Federal Involvement in Family (Law) Governance

by Lynne Marie Kohm

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role of articulating the rights of a surviving natural parent(supported by the executive branch of government) againstthird-party claimants. The executive branch agency involved wasthe Immigration and Naturalization Service (INS), who foundthemselves in effect protecting parents’ rights by enforcing theimmigration laws, and in so doing benefiting a Cuban parent notpresent in the United States.

The executive branch of the United States government wasaccused of manipulating family law for foreign policy purposes.The result was to uphold the parental rights of a natural parentin a foreign totalitarian country. Even while the state court systemwas still in the process of finding that it lacked permanent custodyjurisdiction, the federal courts were entertaining a wide range ofvarying suits and petitions from the relatives, all ultimately rejected,and all seeking to force the federal government to recognizecustody claims superior to those of natural fatherhood and keepthe boy from his Cuban father. Is this excessive involvement infamily law?

Troxel v. Granville6

In this case the plaintiff grandparents cast the federal court asthe protector of children’s rights, particularly rights to visit withtheir grandparents. The United States Supreme Court, instead,cast itself as the protector of parents’ rights, over those visitationrights asserted by third parties, even when those third parties aregrandparents.

The Court recognized prior precedent on parental rights in theirown opinions, and upheld these rights as still current law. Thegrandparents relied on a Washington state statute that could haveconceivably allowed challenges against natural parents’ rights forseemingly trivial reasons, as was noted by Justice Scalia in hisconcurring opinion.

Each of these cases involved one of the three different branchesof federal government: Morrison—the legislative Branch,Gonzalez—the executive branch, and Troxel—the judicialbranch. In Morrison, the final word seemed to be that the nationallegislature attempted to extend the federal arm too far into an areaof family/criminal law. In Gonzalez, an agency of the executivebranch had the final word on custody intervention to the extremeof gunpoint,7 when the federal government has never rendereda custody decision before in history. In Troxel, the final wordwas that the federal judiciary is the ultimate protector of parentalrights, even in contravention of opposing state laws that are heldunconstitutional.

These cases must be more closely examined to discern whetherthey do or do not exhibit greater or further federal improvisationof family law, particularly as these concerns relate to the lawyerin Virginia. Leaving questions of constitutional law aside, onecould also ask whether the decisions were wise and beneficialfor families everywhere.

The Violence Against Women Act is codified at §13981 of Title 42of the United States Code8 and provides a federal remedy for thevictims of gender-motivated violence, which includes recovery ofcompensatory and punitive damages, injunctive and declaratory

relief, and such other relief as a court may deem appropriate.Congressional power to legislate in such areas, however, is basedon the Commerce Clause of the United States Constitution, andholding states accountable for their actions that violate certainfederal constitutional rights as provided by the FourteenthAmendment of the United State Constitution.

The Supreme Court held that §13981 could not be justified underthe Commerce Clause or Section 5 of the Fourteenth Amendment.Basing their opinion on United States v. Lopez,9 a case about acongressional Act to keep guns out of schools, the Court heldthat gender-motivated crimes of violence are not, in any sense,economic activity. Even if the aggregate impact of the activityhas substantial economic affects, that is not enough to create acongressional power under the Commerce Clause. And the Courtexpressed serious concerns about this “aggregate impact” analysis,particularly citing family law concerns. The Court claimed thatsuch loose reasoning would not only let Congress regulate vio-lence, but could be applied equally as well to family law andother areas of state regulation, as the aggregate effect of marriage,divorce, and childrearing on the national economy is undoubt-edly significant. The sine qua non for the Court is that Congressmay not regulate noneconomic conduct based solely on the con-duct’s aggregate effect on interstate commerce.

Turning to the Fourteenth Amendment claim, the Court under-stood that petitioner’s assertion of pervasive bias in various statejustice systems against victims of gender-motivated violence isindeed supported by a voluminous congressional record. “TheFourteenth Amendment, however, places limitations on the manner in which Congress may attack discriminatory conduct.Foremost among them is the principle that the Amendment pro-hibits only state action, not private conduct.”10 Therefore, evenassuming pervasive gender-based disparate treatment by stateauthorities, the civil remedy of §13981 must be directed at a stateactor. This case, by contrast, was not directed at a state actor, butat individuals who had committed criminal acts motivated bygender bias, namely rape.

The Court was not pleased to be invalidating an Act of Congress,and stated that this was possible only because Congress hadclearly exceeded its constitutional bounds. Again citing Lopez,the Court reminded Congress that in that case it held that theGun-Free School Zones Act of 1990,11 which made it a federal

crime to knowingly possess a firearm in a school zone, exceededCongress’ authority under the Commerce Clause. This case wasno different. The non-economic, criminal nature of the conductat issue was central to that decision, and is central to Morrison’sanalysis as well. The activity in question must be some kind ofeconomic endeavor. The greatest difference between this caseand Lopez was the numerous legislative findings regarding theserious impact that gender-motivated violence has on victims and

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. . . there is no family law ina national unified sense.

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their families. But noneconomic activity that merely is legislativelydeclared to deter victims from interstate travel, increase medicalcosts, and diminish national productivity is not enough to invokethe Commerce Clause. The Court was clearly concerned withCongress’ overreaching into state-regulated areas of law.

[T]he concern that . . . Congress might use theCommerce Clause to completely obliterate theConstitution’s distinction between nationaland local authority seems well founded . . . .Indeed, if Congress may regulate gender-moti-vated violence, it would be able to regulatemurder or any other type of violence sincegender-motivated violence, as a subset of allviolent crime, is certain to have lesser eco-nomic impacts than the larger class of whichit is a part.12

The Court’s clear concern was federal regulation in areas of tradi-tional state regulation, particularly family law, and it cited themost basic of all constitutional law cases, Marbury v. Madison, tomake their point. In his concurrence Justice Thomas rails againstthe “substantial effects” test on which the Court continues to rely.

“By continuing to apply this rootless and malleable standard,however circumscribed, the Court has encouraged the federalgovernment to persist in its view that the Commerce Clause hasvirtually no limits. Until this Court replaces its existing CommerceClause jurisprudence with a standard more consistent with theoriginal understanding, we will continue to see Congress appro-priating state police powers under the guise of regulating commerce.”13

The Constitution requires a clear distinction between what isnational and what is local. Indeed, the Constitution withholdsfrom Congress plenary police power, and it likewise has nocriminal justice power. Regulating and punishing intrastate violencenot directed at goods or a channel involved in interstate commercehas always been the province of the states, and the Court insiststhat it remain that way. Furthermore, the Fourteenth Amendmentprohibits only state action, limiting the manner in which Congressmay attack discriminatory conduct, even that conduct which mayinclude gender-motivated bias in state courts. The FourteenthAmendment erects no shield against private conduct, evenabhorrent criminal conduct such as rape. The dissenters in thecase disagree, particularly in regard to rape, in that because rapeis allegedly so prevalent and growing, they believe there is adesperate need for a federal remedy. Indeed, many criticized theMorrison decision as one which errantly leaves violence againstwomen to state governments to handle, and jeopardizes federallaws that prohibit hate crimes that protect abortion clinics fromviolence and that outlaw conspiracies to interfere with civil rights.14

But does a federal remedy necessarily provide relief from a grow-ing harmful trend? Are state courts really that pervasive in theirbiases? Compare Troxel, where it appears that the Supreme Courttook this case as an opportunity to overturn an unconstitutionalstate law on child visitation by third parties.

A Washington State statute permitted “any person” to petition forvisitation rights “at any time,” and a state court ruled that the

paternal grandparents of two fatherless girls could be awardedvisitation against the wishes of the girls’ mother. The SupremeCourt, acknowledging the “changing realities of the Americanfamily,” nevertheless determined that the Washington statuteabridged the fundamental parental right to direct the upbringingof one’s children. These fundamental rights were protected frominterference by any state statute, based on the legal presumptionand the natural bond that give a parent authority to act in thebest interests of his or her child. Virginia family law practitionerswill do well to note again the similar Virginia decision inWilliams v. Williams,15 which was cited in Troxel, interpretingthe Virginia non-parental visitation statute to require a finding ofharm as a condition precedent to awarding visitation to grand-parents against the wishes of the parents.

Justice Scalia appears to fear that by vindicating “parental rights”under a federal Constitution which is silent on the subject, thehigh court is effectively “improvising judicially prescribed familylaw, complete with judicially approved assessments of ‘harm tothe child’ and judicially defined ‘gradations of other persons’(e.g., grandparents) who ‘may have some claim against the wishesof the parents.’”16 Even within the desire to uphold fundamentalrights of parents, there may be concerns or fears of too muchfederal entanglement in family law issues. “This case producedstriking examples of both judicial overreaching and judicialrestraint.”17

The executive branch of the federal government also consideredparental rights in Gonzalez, and likewise decided that as a fun-damental right, parents’ rights to direct the upbringing of theirchildren prevailed over considerations to the contrary, evenwhen that parent lives under a totalitarian regime.

The opinion in the Gonzalez case by the Eleventh Circuit succinctlystates the problems faced in each of these three cases. “Thiscase, at first sight, seems to be about little more than a child andhis father. But, for this Court, the case is mainly about the sepa-ration of powers under our constitutional system of government:a statute enacted by Congress, the permissible scope of executivediscretion under that statute, and the limits on judicial review ofthe exercise of that executive discretion.”18

The facts of this case were largely misstated or ignored in thepopular media. Elian’s mother, who had legal custody of him,decided to flee Cuba seeking freedom in the United States aboarda small boat with twelve other Cuban nationals. When the boatcapsized in high winds, there were only three survivors, one ofwhich was the six-year-old boy, Elian Gonzalez. His mother didnot survive. After Florida fishermen rescued the survivors, theyreceived necessary medical treatment, and a great uncle of theboy took him into his care. He contacted the U.S. Immigrationand Naturalization Service (INS), who decided not to immediatelyremove the boy back to Cuba, but deferred and paroled thechild into his uncle’s care. The uncle then filed an asylum appli-cation on behalf of the boy, and shortly thereafter a Florida statecourt awarded temporary custody of Elian to his great uncle.

When the INS rejected Elian’s asylum applications, federal courtswere resorted, too. Plaintiff alleged that under 8 U.S.C. §1158anyone can apply for asylum, regardless of age and parental

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consent, that the child’s due process rights were violated, andthat there was a general judicial failure to appoint a guardian adlitem to represent the interests of the child. The federal circuitcourt of appeals dismissed both the due process claims and theguardian ad litem concerns. It held that due process is not dueto an alien seeking United States admission, and a guardian adlitem was not required when the boy’s next friend and uncleably represented him as the plaintiff.

The Court was quite concerned, however, with the INS’s and thedistrict court’s dismissal of the asylum claim, as it appeared a six-year-old child can apply for asylum under the statute. “The ulti-mate inquiry, instead, is whether a six-year-old child has appliedfor asylum within the meaning of the statute when he, or a non-parental relative on his behalf, signs and submits a purportedapplication against the express wishes of the child’s parents.”19

Ultimately, the Court concluded that because the statute is silenton the issue, the executive agency holds executive discretion,which therefore greatly limits judicial review. More importantly,the Court was not unalarmed at the INS policy development inthe midst of the facts. It questioned if political circumstancesexisted that rendered the parent an inappropriate representativefor the child, particularly as the parent resided outside UnitedStates jurisdiction, in a communist-totalitarian state that does notconfer legal rights upon persons, even as parents. The Court cer-tainly viewed this fact as a special circumstance that deserved,but did not receive, serious agency consideration.

The state family court custody decision was not given anotherglance. In such an international incident, courts of law must deferto the international relations prerogatives of the INS, so long asit stays within its statutory authority. In the final analysis, eventhe Court’s apparent desire to act in the best interests of thechild did not afford it the authority to disentangle the executivebranch of the federal government from the family. The INS hadjurisdiction, and the Court stated that its decision “was within theoutside border of reasonable choices,”20 and those decisionscould not be characterized as arbitrary and capricious. Executiveagency wins over any thought of local remedies.

The matter of parental rights is of great concern, but appeared tobe stood upon its head in Gonzalez when the district court phrasedits decision in terms of deferring to an administrative agency.

No federal court has ever decreed a divorce, or rendered a custodydecision.21 These cases, accordingly, raise some important con-cerns. A parent’s right to raise his or her children without stateinterference, Justice Scalia asserts in Troxel, ought not be basedon a false and errant legal reason called substantive due process,as it is in the Meyer/Pierce doctrine. These rights of parents (hebelieves) are not only unenumerated fundamental rights, butthey are (more importantly) among the “unalienable Rights” withwhich we are “endowed by [the] Creator,” and therefore no

judge is ever entitled to rule on them. The lawyer’s concern thatmay follow Scalia’s thought is that this line of thinking may bemost correct, but might also come with a consequence we maynot like. If no judge is ever entitled to rule on these issues, thatincludes cases where government violates parents’ rights andparents ask courts for relief. That is a frightening scenario whereinno parent could get relief from profoundly unconstitutional rules,or federal or state actions, that interfere with parents’ rights.

Family law affects the world, which is exactly why family lawyerscan change the world. When the federal government seeks tobecome increasingly involved in the regulation of family affairs,there is indeed a danger of manipulation of the family, even inthe face of good motives, such as to add stability and security toAmerican families. The inalienable power of family governanceis something that must be safely guarded, on a local level closestto the family.

What are we left with after these three decisions? The federalgovernment may not regulate local violence, even gender-moti-vated violence, except within Congress limited powers. Stategovernment must consider federally protected fundamentalrights, such as parents’ rights to raise their children, when tailor-ing state statutes regarding visitation. And the authority of theagencies of the executive branch of the federal government infederal matters such as immigration can negate actions of a localfamily court, even when it involves a child escaping a foreigndomice that has no legal recognition of those fundamental rightsthat we hold so dear.

Does it appear that only certain branches of the federal govern-ment can prevail over state law—namely the executive and judi-cial branches—and the legislative branch of federal governmentis otherwise limited? Or might one draw the conclusion that everycase is motivated and determined by its own set of facts? Congresswas held to be overreaching in Morrison; the Supreme Courtinsisted upon upholding basic fundamental rights of parents todirect the upbringing (and visitation) of their children against astate statute as applied in state courts in Troxel; an administrativeagency of the executive branch involvement an asylum claimindependently of denied state court in Gonzalez. Have local statecourts actually lost their capacity to judge fairly, with wisdom, orto provide adequate remedy for criminal wrongs? Or is the fed-

eral government usurping it from them? Removing power fromlocal government is a trend that in some instances the SupremeCourt would like to prohibit, but in other instances has a consti-tutional obligation to oversee. Despite dramatic cultural changesto the modern family, from these cases it is obvious that theimportance and position of the family is not fated or doomed toextinction—at least at the hands of the Virginia State SupremeCourt—anytime soon.

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Family law affects the world, which is exactly why family lawyers can change the world.

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The Supreme Court can only look at what the Constitution says.But we can ask a different question. Which is best for families—bigger, vaster regulation by the federal power, or local decision-making? Virginia lawyers must carefully consider these sorts oframifications whenever seeking a remedy that bypasses the localdecision-making process. The federal government cannot fixwhat is wrong in the hearts and minds of men and women inAmerican culture, even in the face of failed best state efforts.

Virginians and Americans must resist the tendency to call uponbig government to fix everything that displeases us. Can a goodlawyer still pursue a client’s best interests by making argumentsthat require local courts to do the right thing by applying thecorrect rules without federal intervention? Our future depends onexactly that. �

ENDNOTES

1 Harry Krause, Family Law 3rd Ed. 1 (1995).

2 120 S.Ct. 1740 (2000).

3 42 U.S.C. § 13981.

4 United States v. Morrison, 120 S.Ct. 1740 (2000).

5 Gonzalez v. Reno, 2000 WL 701613 (11th Cir.(Fla.))(No. 00-11424)(June 1,2000).

6 Troxel v. Granville, __ S.Ct. __ (No. 99-138)(June 5, 2000).

7 It is worth noting that in order to perform this custody switch, the U.S.Attorney General’s office issued an arrest warrant for the six-year-old, andresorted to recovering custody of the child with special weapons and tactics.

8 42 U.S.C. § 13981.

9 514 U.S. 549 (1995).

10 120 S.Ct. at 1744.

11 18 U.S.C. § 922(q)(1)(A).

12 120 S.Ct. at 1752. This leads one to wonder if recent federal hate crime legis-lation can pass this sort of constitutional muster.

13 120 S.Ct. at 1759.

14 Cherminsky, “Violence Against Women: Supreme Court Ruling CouldEndanger Federal Laws Protecting Abortion Clinics from Violence,” LosAngeles Times, May 18, 2000.

15 256 Va. 19 (1998).

16 George Will, Court upholds parental liberty, Virginian Pilot, June 9, 2000, atB11 (quoting the plurality opinion by J. Scalia).

17 Id.

18 2000 WL 701613 at *1.

19 2000 WL 701613 at *5.

20 2000 WL 701613 at *11.

21 That is, until Gonzalez, and then a court did not make the final decisions—an administrative agency did—and that agency characterized its decision notas one of custody, but as one of asylum.

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Lynne Marie Kohm is a professor at RegentUniversity Law School. She has taught familylaw at the Marshall-Wythe School of Law atThe College of William and Mary, and is amember of the Family Law Section’s Board ofGovernors.