5.6.2. The Midwest, 1965-Present: Family Freedoms

Key laws:


Spouses allowed to recover from each other for injuries

Parents and children allowed to recover from each other for injuries

“Palimony” (division of property and award of alimony by unmarried people at separation) authorized

Rights of gay couples





2004:  Constitution amended to outlaw gay marriage





1986:  Legislature outlaws gay marriage


1953 (later abolished by statute); 1988



2011:  Legislature authorizes civil unions





2004:  Constitution amended to outlaw gay marriage





2006:  Constitution amended to outlaw gay marriage

2009:  Limited marital-type benefits granted to gay partners





____:  Legislature outlaws gay marriage

2009:  Supreme court overturns anti-gay marriage law, authorizes gay marriage

2010:  Voters refuse to retain 3 justices who voted to legalize gay marriage




1977 (limited by statute, 1980)


Autonomy of family members:  the demise of intrafamily immunities

Shook v Crabb – Iowa, 1979 (281 N.W.2d 616); Shearer v Shearer – Ohio, 1985 (480 N.E.2d 99); Cates v Cates – Illinois, 1993 (619 N.E.2d 715)

  • The last bastions of traditional immunity from tort claims – immunity of spouses, parents and children from liability to each other – fell soon after charitable and governmental immunity ended in most states.  A few judges denounced the ending of spousal and parent-child  immunity as an assault upon marriage and the family.  Tradition found its most vigorous defenders in Ohio and Iowa, but even in those states a number of judges felt that lawsuits  between family members reflected rather than caused the destruction of family relationships. 
  • Wisconsin was the first state to abolish those immunities; other Midwestern states followed suit, with Ohio completing the process in the mid-1980s.  Some courts, such as Illinois’ supreme court in Cates, have preserved a narrow version of parental immunity for acts within the normal range of parental discipline and supervision. 

 “While it is currently fashionable to treat the harmony of the home lightly, the family nevertheless remains the bulwark of our society.  Permitting H and W to sue each other for negligence is inimical to the very notion of harmony and trust so important to the marriage relationship. ... I cannot subscribe to a policy which turns the family dinner table into a trial rehearsal, with children choosing up sides as to which parent is right.” -Justice Clay LeGrand (dissenting), in Shook

Autonomy to define family:  the battle over marital rights for cohabitants

Hewitt v. Hewitt – Illinois, 1979 (394 N.E.2d 1204); Glasgo v. Glasgo – Indiana, 1980 (410 N.E.2d 1325); Slocum v. Hammond – Iowa, 1984 (346 N.W.2d 485)

  • The debate over whether to give rights to unmarried couples similar to those conferred by marriage, such as a fair division of property and income between the spouses if the marriage ends, is almost as old as the nation.  Up to the early 20th century, “common law” marriages were widely recognized because couples living in the many remote areas of the United States could not always get married easily.   In the mid-20th century, many states abolished common-law marriage in order to promote marriage as the norm and to standardize couples’ rights; but almost immediately, the pendulum began once more to swing the other way. 
  • In Marvin v. Marvin (1976), involving a dispute between the actor Lee Marvin and his live-in companion, the California supreme court refused to extend the protection of marriage laws to unmarried couples but it held that in appropriate cases, their relationship could be treated as a contract for sharing of assets and income, or courts could use their equitable powers to provide a fair outcome to the separating couple. 
  • The Marvin case received nationwide publicity and has triggered much controversy in the Midwest. In the Glasgo case, Indiana readily accepted Marvin; Wisconsin followed suit a few years later.  Minnesota’s supeme court and legislature engaged in a tug-of-war:  after the court became the first in the Midwest to embrace Marvin, the legislature passed a law stating that only written “palimony” agreements would be valid.  In Hewitt, Illinois’s supreme court took a more measured approach, agreeing that explicit agreements between cohabitants could be enforced but noting that “palimony” represented a major social change which the justices felt should be left to the legislature.  Ohio, Iowa and Michigan courts have stoutly defended traditional marriage and have refused to extend broad rights to unmarried couples; Slocum is a leading exposition of conservative views on the subject.

Autonomy to define family:  the battle over gay marriage

Morrison v. Sadler – Indiana, 2005 (821 N.E.2d 15); National Pride at Work v. Governor – Michigan, 2008 (748 N.W.2d 524); Varnum v. Brien – Iowa, 2009 (763 N.W.2d 862)

  • Massachusetts became the first state to legalize gay marriage in 1993, by decision of its supreme court.  The decision was highly controversial:  most Northeastern states have either followed suit or have authorized their gay residents to enter into “civil unions” which confer most rights associated with marriage.  But gay marriage has met with strong opposition outside the Northeast.  The Midwest has been a battleground:  several states have amended their constitutions to prohibit gay marriage, but gay marriage has come to Iowa (with a sharp backlash) and civil unions have come to Illinois. 
  • Varnum made Iowa the first (and so far only) state outside the Northeast to recognize gay marriage.  In Varnum, Iowa’s supreme court overturned a 1998 law outlawing gay marriage.  The court concluded the purpose of civil marriage was to “bring a sense of order to the legal relationships of committed couples and their families,” including gay couples, and that the right to marry could not be denied to such couples without violating their right to equal protection of the laws.  Supporters of the law argued that the state had a legitimate interest in preserving traditional marriage, promoting procreation and encouraging the raising of children in stable families; the court stated in sweeping terms that the law could not be upheld based on tradition alone and that limiting marriage to heterosexuals would not promote the other goals.   The decision triggered a sharp backlash:  in 2010, Iowa voters refused to retain in office three of the justices who had supported the decision.  But to date, efforts to amend the state’s constitution to overturn Varnum have failed.
  • National Pride demonstrated that Midwestern judges are as sharply divided over gay marriage as the public.  In that case, a divided Michigan supreme court invalidated an contract the state and a union to provide health benefits to unmarried heterosexual and gay couples because a 2004 amendment to the state constitution forbade recognition of same-sex partnerships as marriage “or similar union[s].”   The court recognized that during the campaign for the 2004 amendment supporters had promised the amendment would not affect civil unions, but it reasoned that no such promise was incorporated in the amendment itself.  Two judges dissented, arguing that the amendment was not as clear as the majority believed and that the contract in question did not provide for marital-type benefits.   

“This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage? … Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples.  …[O]fficial recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples.” -Justice Mark Cady, in Varnum


Gay marriage advocate at Minnesota state capitol, 2010 (courtesy Wikimedia Commons)

“When feudal concepts of a marital entity evolve to the modern concept of the marital partnership, it is the court’s duty to see that the law reflects the changing face of society.” - Justice Grey, in Shearer

“The notion that parent-child tort immunity promotes family harmony in the area of negligence … has now been largely discounted.  Without exception, legal scholars recognize that, more often than not, it is the injury, if anything, which disrupts the family … [But c]ourts should not be involved in deciding matters between parent and child  which concern decisions which those persons are uniquely equipped to make because of that relationship.” -Justice Charles Freeman, in Cates

“To apply the traditional rationale denying recovery to one party in cases where contracts are held to be void simply because illegal sexual relations are posited as consideration for the bargain is unfair, unjust, and unduly harsh.  Such unnecessary results probably do more to discredit the legal system … than to strengthen the institution of marriage or the moral fiber of our society.” -Judge Wesley Ratliff, in Glasgo

“The policy favoring marriage is not rooted only in community mores.  It is also rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.  This policy would be subverted if persons could gain marital legal rights without accepting correlative marital legal responsibilities.” -Chief Justice W.W. Reynoldson , in Slocum

“The institution of opposite-sex marriage both encourages such couples to enter into a stable relationship before having children and to remain in such a relationship if children arrive during the marriage unexpectedly.  The recognition of same-sex marriage would not further this interest in heterosexual ‘responsible procreation.’” -Judge Michael Barnes, in Sadler

“It is not for this Court to decide whether there are superior means for securing and preserving the benefits of marriage, or indeed whether the means chosen in the [law denying benefits to same-sex partners] are ineffectual or even counterproductive.  The people of this state have already spoken on this issue by adopting this amendment.” -Justice Stephen Markman, in National Pride