Legitimacy’s Uncertainties: Exploring the Presumption’s Premises

The presumption of legitimacy is one of Euro-American family law’s most venerable doctrines. Under this well-known rule, a woman’s husband is presumed to be the father of any child conceived during marriage. Throughout the ages, the substance of the doctrine has been remarkably consistent: With relatively modest changes, it can be traced from Roman law through Canon Law, Civil Law, and the Common Law—and until recently, into the parentage statutes of a majority of U.S. states. But, as Susan Appleton correctly observed nine years ago,1 this ancient rule is now at a crossroads. On the one hand, it has been eroded by the rise of genetic paternity tests and the demise of laws that discriminate against children born out of wedlock. On the other hand, it has been given a second wind by extension to same-sex married couples and couples who use ART, who vigorously guard its value as a protection for their children. As a result, we are now at a particularly useful vantage point to review the promises of the presumption itself.

A new article shines light on the presumption and its many meanings. As Andrew Counter illustrates in Always Uncertain, the ideological underpinnings and consequences of the presumption have varied “enormously” in different places and times.

Counter’s analysis of the cultural and legal development of the presumption of legitimacy focuses primarily on his readings of two texts—Guy de Maupassant’s short story Monsieur Parent (1885) and the record of Michael H. v. Gerald D. (1989).2 In Monsieur Parent, the eponymous character learns that his wife Henriette has been unfaithful with family friend Limousin, and that Georges, his only child, may be the fruit of that affair. After the liaison is discovered, Monsieur Parent turns Henriette and Georges out of the house, but is haunted by the realization that no one will ever know whether Georges was his biological child. In Michael H. v. Gerald D., Victoria D. was born to Carole D., who was married to Gerald D. However, Carole had an extramarital partner, Michael H., who obtained blood tests indicating that he was almost certainly the child’s biological father. Michael claimed that California’s presumption of legitimacy was unconstitutional, but his claim was rejected by the Supreme Court.

Counter’s article begins by deftly situating each of these texts within the broader cultural and legal contexts from which they emerged. As he explains, the presumption of legitimacy was codified into French law in Article 312 of the French Civil Code of 1804. Because the presumption was intended to eliminate the inherent uncertainty in determining a child’s father, it was “extremely difficult to rebut.” (P. 68.) In order to successfully challenge the paternity of a child born during marriage, a litigant would have to show “the impossibility of cohabitation between the spouses for the entire period,” “that the husband had been rendered impotent by an accident after the marriage,” or “that the wife had committed adultery … and had concealed … the birth from the husband and had been separated from him at the time.” (P. 68.)

In California, meanwhile, the presumption of legitimacy was codified in 1872. In addition to the standard exceptions for the impossibility of cohabitation and the husband’s impotence, California courts initially allowed the presumption to be rebutted upon a showing that “the child is of a race or color such that it could not have been conceived by the husband.” (P. 69.)3 As Counter wryly notes, this exception was “doubtless undergirded by motives less noble than a mere judicial love of truth.” (P. 69.) But it also indicated that California courts were willing “to admit as evidence what was, so to speak, evident”—“to permit rebuttal of the presumption where it was manifestly inaccurate.” (P. 69.)

Against this legal backdrop, Counter presents two major historical shifts in the presumption’s premises. First, Counter notes that when France’s Article 312 was codified, it was not justified by the same concerns that had been invoked in an earlier era to defend similar measures in Roman law: It was presented as a measure to protect a child’s right to his father’s support, rather than a measure to safeguard a father’s property rights to his legal offspring. Drawing on Durkheim’s analysis, Counter explains that, during this period, “the protection extended to the child here is understood primarily as protection from repudiation by… the presumptive father … hence the state’s primary interest is seen to be to force its father and mother to acknowledge it.” (P. 70.)

Next, Counter observes that in California the emergence of early testing based on blood types in the 1960s allowed litigants to exclude at least some men as possible fathers. Interestingly, however, California courts immediately began rejecting this evidence as a threat to the integrity of married families. By the late 1960s, moreover, these courts began to repudiate earlier dicta that had allowed proof of racial differences to rebut the presumption in particular cases. In a period of only ten years, the courts had transformed a doctrine of legal epistemology into a doctrine of “family integrity”: Instead of serving as a rule of evidence that could be rebutted, the presumption now operated as an “‘overriding social policy’ whereby the legislature preferred children to be raised by married couples”—no longer a procedural substitute for proof, but now a “substantive rule of law.” (P. 70.)

While these historical insights are significant, they only scratch the surface of what Counter’s article offers. Above all, Always Uncertain provides the sheer pleasure of close readings in law and literature—his comparisons of the principal characters in Monsieur Parent and Michael H. are unforgettable. Throughout the article, Counter deploys familiar tropes from both literary and historical criticisms of legal texts, but he never allows himself, or the reader, to get too comfortable within them.

For example, Counter’s analysis of the presumption’s historical development in both France and California casts doubt on the accuracy of Justice Scalia’s own historical analysis in Michael H., which was critical to his rejection of Michael H.’s constitutional claims. When Justice Scalia turns to the historical record, he reports: “we have found nothing in the older sources … addressing specifically the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man.” (P. 77.)4 In a “slippery footnote,” Justice Scalia treats this absence of authority as a “specific tradition [which] unqualifiedly denies protection to such a parent”—a claim that Counter views as “far-fetched for a number of reasons.” (P. 77.)5 First, paternity could not be proven in the nineteenth century; second, adultery was a crime in most jurisdictions; third, nineteenth century jurists took an “unsentimental view of paternity,” regarding it as “a set of, mostly financial, duties.” (P. 77.) “From a legal point of view,” Counter concludes, “Michael H. … had simply never existed before.” (P. 77.)

For a moment, Counter’s analysis seems reminiscent of historical critiques of judicial opinions—most notably Anne Goldstein’s famous analysis of Justice White’s opinion in Bowers v. Hardwick.6 But rather than dwelling too long on this historical payoff, Counter briskly turns back to his literary analysis: After noting that “Michael H. … had simply never existed before,” he observes that “what the law cannot imagine is not necessarily unimaginable to literature.” (P. 77.) In a remarkable move, Counter explains that, in Monsieur Parent, the character of Limousin offers an anticipatory vision of Michael H.—a mode of family life that Justice Scalia was unwilling to entertain, one hundred years later. As Counter explains, Limousin represents “an accomplice to adultery … who … comes forward to raise (what he takes to be) his illegitimate child.” (P. 78.)

Here, too, Counter manages to avoid analytical clichés, while squeezing astonishing insights from his legal and literary texts: Rather than suggesting that literature always liberates—by imagining what the law cannot afford to—he observes the ways in which both texts offer “conservative” accounts of what happens when husbands and wives engage in “unconventional behavior.” (P. 78.) Moreover, he reasons, both texts imply that such consequences are “inevitable … where female sexual liberty is not restrained.” (P. 79.) While de Maupassant brands Henriette “a harridan, a hypocrite, and a … tramp,” (P. 79.)7 Justice Scalia is more subtle in his critique, noting that Carole D. is “an international model”—a woman who has brought her daughter to live not only with her husband Gerald but also with her adulterous lover Michael and with “yet another man” as well. (P. 79.)8 And finally, Counter notes that Gerald D. represents a figure that even Maupassant could not have imagined—“the happy cuckold, the husband who is willing knowingly to élever les enfants des autres (“raise the children of others”).” (P. 79-80.) In Counter’s account, Gerald D. signifies the arrival of a man who understands paternity as “a fundamentally affective experience in which biological fact is incidental (or, much as it is for California law, “irrelevant”).” (P. 80.)

In his closing remarks, Counter leaves no stone unturned in his criticism of the presumption’s operation in both literature and law, then and now. While he admits that “the meaning of the presumption may have changed entirely between 1885 and 1989,” he suggests that the two texts reveal “the same abiding possibility: that the family itself might, or indeed must, be the site of an exclusion, that it is predicated … on ‘bolted doors’ and the ‘jealous possession of happiness.’” (P. 80.)9 In both narratives, he notes, “the person who finds himself the victim of this exclusion—Michael H., M. Parent—is rendered abject.” (P. 80.) Although M. Parent initially turned out his wife and legal child, the story later describes him “as an outlaw, living une vie de forçat (“a convict’s life”) and following his hated wife around like a voleur (“thief”) … the outsider who threatens the [new family’s] tranquil enjoyment.” (P. 81.) In Counter’s view, “These moments exemplify that chilling familialist tendency to attribute perversity to those who have been excluded from the ‘blessings’ of family life, even against their will” (P. 81)—and more fundamentally, “the power of bourgeois familialism to subvert subversion, to define the terms even of transgressive desire itself.” (P. 82.) After all, Counter laments, Michael H. wanted nothing more than “the right to act as a father to his biological offspring.” (P. 82.) Marking out the limits of the presumption’s premises in both narratives, Counter concludes: “It is surely a bad day indeed for non-conformity when such a desire can be considered non-conformist; though worse still, of course, when the right not to conform is found not even to stretch that far.” (P. 82.)

  1. Susan Frelich Appelton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 Boston L. Rev. 227, 228 (2006). []
  2. 491 U.S. 110. []
  3. Quoting In re Estate of Walker, 180 Cal. 478, 491 (1919). []
  4. Quoting Michael H. v. Gerald D., 491 U.S. 110, 125 (1989). []
  5. Quoting id. at 125 n.6. As Counter observes, Justices Kennedy and O’Connor specifically declined to join this footnote. (77). []
  6. Anne B. Goldstein, Homosexuality, History, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yale L.J. 1073 (1988). []
  7. Quoting Monsieur Parent at 2: 601. []
  8. Quoting Michael H. v. Gerald D., 491 U.S. 110, 113-114 (1989). []
  9. Quoting André Gide, Les Nourritures Terrestres (Paris: Gallimard, 2008) (1897), 67. []
Cite as: Clifford Rosky, Legitimacy’s Uncertainties: Exploring the Presumption’s Premises, JOTWELL (July 17, 2015) (reviewing Andrew J. Counter, Always Uncertain: The Presumption of Legitimacy in Two fins de siècle, 26 Law & Lit. 65 (2014)), http://family.jotwell.com/legitimacys-uncertainties-exploring-the-presumptions-premises/.

Gay Lib Goes to Court: The Marriage of Liberation and Rights

Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN.

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.

Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work,2  prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage.

As Boucai documents, the radicalism of this group of plaintiffs appears particularly foreign when viewed from a contemporary perspective. Unlike the rights perspective that guides many current debates, or even the queer perspective that arose in the 1990s to engage critical thought about rights,3  these early marriage cases, Boucai argues, reflect the gay liberation movement’s radical utopian foundations. As this movement began to seek rights, it drew on central political precepts such as the struggle against racism and, in particular, sexism. Gay liberationists drew on feminist efforts to rework societal sex roles, including an opposition to the patriarchal nuclear family. In this climate, coming out was viewed as a central political act, a gay variation of the feminist exhortation that “the personal is political.” Likewise, the embrace of sexuality was also central. During this period, when even married suburbanites hosted “swinging” key parties, gay men and lesbians also embraced a new eros, rushing to create what Michel Foucault called “laboratories of sexual experimentation.”4  Indeed, the name of the organization run by one of the early gay marriage plaintiffs, Jack Baker, Fight Repression of Erotic Expression (“FREE”), reflects the centrality of sexual liberation to the movement.

Within this historical context, Boucai locates the Baker, Jones, and Singer plaintiffs both as litigants and as movement participants. On this account, these cases were not simply bids to access marriage, but bold salvos against heteronormativity. As Boucai explains, these plaintiffs, perhaps guided by low expectations for success, were bold and innovative in crafting the legal arguments for marriage equality. Several arguments focused on the then-recent developments in sex-discrimination law to mine the radical potential for leveling all restrictions on sex including whom one can marry. This argument, when raised by Justice Roberts recently in Obergefell v. Hodges, still surfaces much controversy.5  Not surprisingly, courts dismissed the arguments—and these cases—out of hand. The creative arguments, brought by a variety of plaintiffs who explicitly embraced sexual liberation, provide a marked contrast with the deliberate and strategic methods of more recent marriage litigation.

Boucai also highlights intra-movement discord, specifically how the more conservative and closeted homosexuals opposed each of the cases. This radical-reformist divide in gay political efforts became apparent a decade later in Larry Kramer’s The Normal Heart.6  In response, the plaintiffs embraced the radical, not the reformist, stance. Given the small chances of success for the litigation, and the plaintiffs’ awareness that marriage was a target rather than a goal, the lawsuits functioned as vehicles for public protest. For example, the Baker plaintiff organized a “zap” protest action, with champagne and a wedding cake, to highlight the pending lawsuit and to come out in a highly visible and political fashion. The couples resisted social definitions of sex roles in their communication with the press, demanding a full-scale reappraisal of marriage and sexual relationships. Indeed, one of the couples had a relationship more akin to what we might call “friends with benefits,” and the suit did not seek to formalize their unorthodox relationship, but rather to render gay life and sexual liberty more visible. They sought to demonstrate that sexual exclusivity, monogamy, and even the sexual relationship itself were invidious elements of the marital relation – that anyone should be able to marry for any reason, including to flout the norms associated with the institution.

Even as he uncovers this lost history, Boucai does not linger on why it has been forgotten. The splits between gay and feminist movements, the retrenchment forced by AIDS, and the subsequent cultural visibility and the concomitant establishment of an increasingly legitimized minority all contributed to the loss of this history and the arguments that undergirded it. Rights-seeking activists, using less radical techniques, gradually took precedence within the gay rights movement (with ACT UP and Queer Nation as notable hybrid exceptions). I remember attending the planning council for the 1987 gay rights March on Washington at which Gay Men’s S/M Activists (GMSMA) held a seat on the planning committee. Such groups disappeared from national political efforts in the subsequent years. As the gay rights movement legitimized itself, organizers suppressed community elements that undermined mainstream acceptance.

Boucai’s methodological rigor, with its hint of nostalgia, renders the piece irresistibly alluring. His concerted and fascinating historical work reflects a broader curiosity about what gay liberation meant7  and marks many paths for future inquiry. Boucai’s renewed embrace of sexual liberation reminds us that the established LGBT-rights movement stands on top of a liberationist, anti-patriarchal agenda that would upend sex, gender, and sexual stereotypes. At a time when identitarianism continues to define lesbian and gay equality efforts, it is my hope that Boucai’s crucial intervention might revitalize moribund debates over the law’s direction with regard to sex and sexuality.

[Editor’s note: for a previous review see Elaine Craig, A Queer Story of Same Sex Marriage.]

  1. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), aff’d, 409 U.S. 810 (1972); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), appeal denied, 84 Wash.2d 1008 (1974). []
  2. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Harvard University Press, 2011). []
  3. For my own contribution to this debate, see, Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay “Victories,4 Law & Sexuality 83 (1994). []
  4. Sexual Choice, Sexual Act: An Interview of Michel Foucault, Salamagundi Magazine, Fall 1982-Winter 1983, reprinted in Foucault Live: Interviews, 1961-1984 225 (Sylvère Lotringer ed. & John Johnston trans. 1989). []
  5. Obergefell v. Hodges, 135 S. Ct. 1039 (2015); Adam Liptak, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage, N.Y. Times, Apr. 29, 2015, []
  6. Larry Kramer, The Normal Heart (1985). []
  7. Consider, for instance, two recent films about gay life in the 1970s. James Franco’s recent video project explores the 1970s leather bar scene, and reminds us that gay sex, then still criminalized, figured as a more central form of resistance to the discrimination homosexuals faced than it does now. Interior. Leather Bar. (James Franco, Vince Jolivette, et al. 2013). While Interior. Leather Bar focuses on sexual liberation, a new film, Limited Partnership, concentrates on a 1970s rights claim for a gay married couple seeking a green card. Limited Partnership (Tesseract Films Corporation, Treehouse Moving Images, LLC, et al. 2015). Both films, the former about liberation, the latter about rights, find the perfect accompaniment in Boucai’s article which artfully grapples with both. []
Cite as: Darren Rosenblum, Gay Lib Goes to Court: The Marriage of Liberation and Rights, JOTWELL (June 24, 2015) (reviewing Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN), http://family.jotwell.com/gay-lib-goes-to-court-the-marriage-of-liberation-and-rights/.

Reframing (and Reclaiming) Pregnancy and Abortion

Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013).

In recent years, anti-abortion advocates have argued that abortion harms not only a developing fetus, it also harms the woman who chooses to terminate her pregnancy. These arguments, which Reva Siegel has termed “woman-protective anti-abortion argumentation,” have made their way into abortion jurisprudence.1  In the 2007 case Carhart v. Gonzales,  a majority of the Supreme Court characterized abortion as “a difficult and painful moral decision” that may cause women profound psychological, physical, and emotional harm.2

In response to these arguments and the judicial decisions that entrench them as truths, pro-choice advocates have sought to recast abortion in a more positive light. Katha Pollit’s recent book, Pro: Reclaiming Abortion Rights, seeks to strip abortion of its stigma by reframing it as a common part of a woman’s reproductive life—one that may have positive implications for the woman, her family, and society. Similar themes have surfaced in popular culture. In the 2014 movie Obvious Child, Donna, a struggling twenty-something, becomes pregnant after a one-night stand and decides to have an abortion. Donna’s decision is utterly devoid of the usual angst and drama that attends television and film depictions of similar scenarios. Indeed, she is matter-of-fact about the decision, never contemplating the possibility of raising the child herself or giving it up for adoption. More radically, Donna is no worse for the wear after her abortion. Indeed, she is pleased with her decision, confident that it was the right choice for her.

Amidst these popular efforts to recast abortion in a more positive light comes Khiara Bridges’s excellent article, When Pregnancy is an Injury: Rape, Law, and Culture. In the piece, Bridges considers criminal sexual assault statutes that characterize a pregnancy that results from rape as an injury—beyond the rape itself—to the victim. As Bridges observes, these criminal statutes are notable not simply because they identify those circumstances in which the crime of rape is aggravated and subject to heightened penalties; but because they construct pregnancy as an injury to women. As Bridges explains, the construction of pregnancy as an injury “runs counter to positive constructions of pregnancy within culture.” But it is not just that these criminal statutes disrupt the conventional narrative of pregnancy as a beautiful and blessed experience; by reframing pregnancy as an injury, the criminal sexual assault statutes also provide us with an opportunity to reconceive abortion as “a healing modality, serving to heal a woman of her injury.”

There is much to admire about this article. Unlike much of reproductive rights scholarship, which often focuses on doctrinal developments in the law, the article takes an anthropological approach, documenting the interaction between law and culture in constructing the ways in which we understand pregnancy and abortion. In so doing, the article yields trenchant insights about the role that law may play in shaping our cultural understandings of abortion and pregnancy and vice versa. For example, in discussing the range of sexual assault statutes that provide for heightened penalties when a rape results in pregnancy, Bridges makes clear that the statutes are “somewhat exceptional because . . . [they] reflect subversive understandings of pregnancy” that are at odds with prevailing cultural and legal views, which celebrate pregnancy as a good thing for women, even in circumstances where pregnancy is unwanted and unplanned.

To underscore this point, Bridges canvasses a range of legal contexts where pregnancy, despite its risks and challenges, is almost always figured as a good thing. Consider cases of wrongful pregnancy or wrongful conception, where parents sue after a provider’s negligence results in an unwanted pregnancy. In these cases, courts do not “recognize that a woman who bears a pregnancy only because of the negligent provision of contraceptives or a negligently performed abortion or sterilization—that is, a woman who bears an unwanted pregnancy—experiences that pregnancy as an injury.” Instead, the injury that courts do recognize is the denial of one’s reproductive rights and the economic costs associated with pregnancy. Through this selective recognition, Bridges argues, law subtly asserts that “pregnancy itself is a good thing.” That is, even as it shifts the “monetary costs associated with pregnancy,” law stubbornly insists on framing pregnancy as a benefit to women. Certainly, it is a benefit that “may result in some burdens . . . . [b]ut it is not an injury.”

To be sure, there are contexts where pregnancy is framed more ambivalently or even negatively—the pregnancies of women on public assistance and the pregnancies of women employees, come to mind. But even in these contexts, the negative framing does not render a more accurate account of women’s experiences of pregnancy. In these contexts, Bridges explains, the injury of pregnancy is not an injury to the woman, but rather an injury to the body politic—the public or public resources. In this way, even these negative treatments of pregnancy underscore the larger cultural message that pregnancy is a positive experience for women.

And because pregnancy is framed as a positive experience, abortion is necessarily framed as a negative experience. It is the quintessential injury—one that not only harms the fetus, but also injures the woman herself. In this way, Bridges argues, law helps to shape a cultural narrative in which a woman’s interest in abortion is stigmatized and delegitimized.

On this account, the sexual assault statutes’s view of pregnancy as an injury is not just subversive in the way it reframes pregnancy; it also undermines the prevailing view of abortion. In stark contrast to Gonzales v. Carhart, where abortion is presented as a danger from which women must be protected, the reframing of pregnancy as an injury allows abortion to be recast as a means of healing the injury of pregnancy. In this regard, pregnancy as an injury has the radical potential to shift the nature of abortion discourse. If abortion is recast as a healing modality, then the procedure itself—and the woman’s desire for it—is not a much-regretted choice that causes profound anxiety and despair, but rather, is a legitimate choice that may be positively experienced. In this way, refocusing our discourse to accurately reflect the bitter and the sweet of pregnancy allows law to better understand and reflect women’s interest in, and experiences of, abortion.

But what is perhaps most interesting about this article is that it makes clear that the reframing of pregnancy and abortion that it champions is not necessarily new. As Bridges explains, early pro-choice advocacy explicitly characterized unwanted pregnancy as an injury and abortion as a means of healing that injury. However, as anti-abortion advocacy shifted from emphasizing abortion’s harm to the fetus toward emphasizing the perceived harms of abortion for women, this earlier understanding of pregnancy and abortion fell out of favor—and out of our collective memory. By unearthing this lost view of pregnancy in (of all places) sexual assault statutes, Bridges makes clear that these arguments were once a vibrant part of pro-choice advocacy—and that they could be once again.

  1. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694 (2008). []
  2. 550 U.S. 124, 128 (2007). []
Cite as: Melissa Murray, Reframing (and Reclaiming) Pregnancy and Abortion, JOTWELL (May 22, 2015) (reviewing Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013)), http://family.jotwell.com/reframing-and-reclaiming-pregnancy-and-abortion/.

Restructuring Family Law

Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.

In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families.

In contrast, when the law regulates the family intentionally, it often does so in what Huntington characterizes as a “reactive” mode. Families encounter the law when they are in crisis—for example, at divorce, or when a shared parenting arrangement has broken down, or when family bonds have been eroded by violence. The state then enters to solve—or, at least, adjudicate—the problem, and then disappears once a resolution appears to have been achieved. But by then this intervention may be too little, too late. Family relationships have become adversarial, and a litigation model of dispute resolution only exacerbates the breakdown in trust and communication that the family is already experiencing.

Huntington proposes a radically different model, one in which the state’s aim is not to intervene in crisis, but instead to assist families in flourishing from their inceptions to their breakdowns to their repair. Unlike traditional family law, under Huntington’s model the state might be purposefully involved in a family’s life during many phases of its existence. Huntington draws on positive psychology, a field that studies the conditions that lead to human flourishing, rather than focusing on disease and dysfunction. If we can figure out what makes families flourish, she argues, we can craft state interventions that support families rather than working to undermine them.

The proposals that Huntington develops using this model are varied and paradigm-shifting. Some of her interventions would happen early in the family formation process. She would, for example, involve the state in assisting new parents. Rather than waiting for an individual to fail (by, for example, committing child abuse or neglect) and then intervening to terminate the parent’s rights, the state would instead proactively assist a new parent, especially those most at risk of committing abuse or neglect, by providing education and hands-on assistance early in the child’s life. Just as a good diet and exercise can prevent long-term medical problems down the road, so can early intervention prevent family crisis. As a real-world example of this type of program, Huntington describes the Nurse-Family Partnership, a program now serving first-time mothers and their infants in forty-three states. The program provides at-risk mothers with in-home visits beginning in pregnancy and lasting through the first two years of the child’s life, parenting skills training, and counseling to assist mothers with educational and career planning.

Huntington also advocates for other methods of state involvement with an eye to fostering family strength. She is a particular fan of the “New Urbanism,” an architectural and planning movement that encourages the building of new communities, and revitalization of older ones, so that housing, schools, shopping, and parks are all located within a short walk of each other. Huntington calls this “shrinking the home, work and school triangle,” and the effects on families can be very positive. Walking outdoors leads to friendships with neighbors, which in turn leads to networks that can provide shared child care arrangements, support during difficult times, and increased neighborhood safety. Huntington also takes on the current impediments to the formation of long-term relationships, especially in poor communities, including the high incarceration rates of African-American men and marriage penalties built into means-tested government programs. Access to free contraception and education, she argues, can also help women to delay childrearing until they have found a stable partner. Finally, legal recognition of a broader range of families than the traditional nuclear family would lead to greater stability for those families.

Not all of Huntington’s proposals focus on early intervention. Instead, some of the reforms she espouses are aimed at changing the way the state intervenes when a family is in crisis. Huntington observes that the current system assumes a conflict and resolution, but that most divorce and custody disputes do not match this model. Again drawing on psychological research, she argues that the law circumvents a key step in the cycle of intimacy, which includes a period of guilt followed by repair. Courts focus more on assigning blame and creating a “clean break” to relationships. This emphasis can disrupt the natural cycle of repair and prevent a former couple from becoming effective co-parents. In any divorce or break-up where children are involved, the relationship between the parents does not actually end. Instead, it must be transformed into something new. Huntington urges that we pay more attention to the relationships that will continue to persist after legal action ends and to encourage the divorce and custody dispute process to be less adversarial, through reforms in family law teaching, legal practice, and the adoption of new approaches to dispute resolution, such as the collaborative lawyering movement.

Huntington recognizes that a primary objection to her proposals may be that it puts too much faith in the state at the expense of family autonomy. She counters this objection with the observation that the state already pervasively regulates families. The question, she argues, is not whether the state will be involved in family life—we can’t escape that—but instead how. Her goal is to “redirect the pervasive state so that it encourages strong, stable, positive relationships within the family.” Getting there will require extraordinary efforts on many fronts. Huntington’s book gives us the roadmap for how to begin.

Cite as: Kerry Abrams, Restructuring Family Law, JOTWELL (April 20, 2015) (reviewing Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014)), http://family.jotwell.com/restructuring-family-law/.

Can the Supportive State be Non-intrusive?

Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014).

Two truths that feminists hold to be self-evident are: (1) that this society requires a more pro-active, supportive state that recognizes the fact of dependency and assumes some responsibility for the needs that dependency creates; and (2) that when the state intervenes in the lives of poor, minority women, it discriminates against and penalizes those most in need of its support. Advocates of each proposition generally also adhere to the other as if the two propositions were completely compatible: Those making the case for a supportive state adopt as a principal goal the reduction of society’s profound inequalities,1 while critics of the state’s discriminatory intrusions into the lives of the poor take for granted the necessity for state interventions to address dependency.2

Wendy Bach’s article advances both propositions sympathetically—so sympathetically that the reader initially might understand the article to be primarily a celebration of the convergences in feminist insight. But read on. The work is, above all else, a caution. The case for a supportive state is a powerful one, she argues; yet current institutional realities mean that state-sponsored programs typically make women more vulnerable, not less. This is not inevitable, she argues, but to avoid it, reformers need to pay more attention to the specificity of the mechanisms the state employs. Otherwise, Bach argues, calls for a more supportive state may yield measures making it easier for middle-class women to work and raise children, but they won’t dismantle the punitive mechanisms that so acutely affect poor women and minorities. (P. 329).

Most of Bach’s article is aimed at deepening our understanding of the institutional realities of poor women’s lives. In furtherance of this goal, Bach identifies a phenomenon she calls “regulatory intersectionality,” which refers to the interlocking nature of state’s social welfare apparatus and its criminal justice process. These systems, she argues, act in concert. “[I]nformation that is deemed to indicate non-compliant and/or deviant conduct travels from the original social welfare system into other even more punitive systems,” where it functions “to impose ever-heightening penalties on the families that seek assistance.” (P. 337). The result is a network of hyperregulation that is highly targeted by class, race, and place.3

The examples Bach uses to establish the phenomenon of regulatory intersectionality are familiar ones—mandatory drug testing of pregnant women and referrals of women who test positive to the criminal justice system; child protection interventions that systematically penalize minority families for their poverty; and welfare conditions (including more drug testing) that invade the privacy rights and security of these same families. In each of these regulatory areas, she argues, the problem is not simply that a state committed to the principles of free market economics, autonomy and self-reliance wrong-headedly ignores dependency and vulnerability, but also that the state’s interventions typically expose women to “more and more . . . punishment and social control.” (P. 368).

Is it too much to expect a state to be both supportive and non-intrusive? Bach concludes that it is possible, and that if privileged women put themselves in the shoes of the poorest, most vulnerable women, it would be “not so difficult after all” to imagine what form that support should take. (P. 379). This imagining leads to Bach to favor programs that are more universal in scope, like the Earned Income Tax Credit, as well as “more privacy protections and higher bars on surveillance and monitoring,” “higher walls between support system and punishment systems,” and “significant caution in the face of calls for coordination and collaboration.” (P. 376).

Bach’s article is an important heads-up to family law reformers who view a more supportive state as the route to greater equity for women and families. Indeed, the challenge Bach poses is so daunting that it is not clear that the solutions she herself offers are sufficiently robust to address it. What this article reminds us, however, is that without greater sensitivity to the damage a “supportive state” can wreak, efforts in the name of the supportive state may end up doing more harm than good.

  1. See, e.g., Martha Fineman, The Autonomy Myth: A Theory of Dependency (2004); Maxine Eichner, The Supportive State: Families, Government and American’s Political Ideals (2010); Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014). []
  2. See, e.g., Dorothy Roberts, Welfare Reform and Economic Freedom: Low-Income Mothers’ Decision About Work At Home and in the Marketplace, 44 Santa Clara L. Rev. 1029 (2004); Shattered Bonds: The Color of Child Welfare (2002); Kaaryn Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (2011); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009). []
  3. Bach at 335-6, quoting Frank Rudy Cooper, Hyper-Incarceration as a Multidimensional Attack: Replying to Angela Harris Through the Wire, 37 Wash. U. J.L. & Pol’y 67, 68-69 (2011). []
Cite as: Katharine Bartlett, Can the Supportive State be Non-intrusive?, JOTWELL (March 24, 2015) (reviewing Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014)), http://family.jotwell.com/can-the-supportive-state-be-non-intrusive/.

The Limited Vision of Neoliberal Family Law

Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN.

The problem of economic inequality has become a staple of news, social media, and public commentary particularly since the aftermath of 2008 financial crisis. The growing gap between the one percent and the rest provided an issue around which public protests such as the Occupy movement could be organized. And while addressing the many effects of inequality is complicated in its particulars, the need for redistribution as a central legal and policy value has been evident to critical scholars. Redistribution in the form of better social safety nets, a more progressive taxation scheme, and the closing of loopholes all have become more commonplace policy prescriptions, although legislation on these issues has been slow to materialize. Family law scholars and activists have also suggested that reforming policies to ensure more support to families, such as paid family leave and assistance with child care, would also have beneficial effects for working parents and the country’s economic bottom line.1 Even as the United States lags behind all other industrial nations and many developing ones in providing these supports, legislating changes aimed at providing resources that “make family life possible” has been remarkably difficult. The question that lingers is why?

Anne Alstott’s essay, Neoliberalism in in U.S. Family Law, offers an answer. Alstott argues that neoliberalism, which she defines broadly as a commitment to free markets and laissez-faire economics coupled with a commitment to negative liberty and a minimal state, makes it nearly impossible to claim any positive rights and distribution of resources from the government. She explores the pervasiveness of neoliberalism in three areas of family law –federal constitutional law, state family law, and federal and state welfare law — deftly drawing connections among these discrete doctrinal fields to advance her central argument:

The entrenched neoliberalism of family law is frustrating for many reasons, not least because it blocks sustained consideration of a more appealing liberalism. Negative liberty, as important as it is, is insufficient for justice. We can imagine—indeed, other countries have adopted—constitutional interpretations that convey positive rights. We can also imagine—and again, other countries have enacted—law that looks beyond the minimalist task of settling private disputes and instead aims to correct market distributions and promote a family life open to all. (P. 26).

In other words, the law continues to maintain the view that families are best served with minimal regulation from the government and that private ordering or free market resource allocation is preferable to government-imposed redistribution. These two pillars of neoliberalism are reflected in the legal decisions and enactments that frame the family in the United States.

Part II of Alstott’s essay explores the minimal state and negative liberty in federal constitutional family law. She juxtaposes the numerous decisions that sound in negative liberty, which prevent the government from intruding upon familial privacy (Loving, Griswold, Roe v. Wade, and Lawrence), infringing parental rights (Meyers and Pierce), and allow it to deny any duty to protect vunerable individuals within families (DeShaney) with decisions denying rights to resources. She argues that while negative rights like privacy receive strict scrutiny, positive rights and distributive policies like welfare and taxation receive only rational basis review, nearly immunizing them from constitutional challenge. For instance, examining the welfare cases, Alstott demonstrates that there is no positive right to state support. The state can cap welfare benefits without regard to family size (Dandridge v. Williams), refuse to provide public housing or adequate schooling, and limit the amount of time a recipient can receive public assistance. Moreover, the state can deny benefits to children because of the actions of their parents. Even a landmark victory for welfare recipients such as Goldberg v. Kelly only guarantees a procedural right to be heard before the termination of welfare benefits—it does not assure a right to substantive benefits. Viewing the jurisprudence of negative liberty and welfare rights in tandem, Alstott argues that there is an “asymmetric pattern of federal constitutional protections for family life.” (P. 29). In other words, these two lines of decisions harmonize in such a way that even though one has a right to family, one has no right to the resources required to sustain that family. Indeed, there is no right to the resources needed “to marry, to divorce, or even to remain alive….” (P. 29).

Unfortunately, the family fares no better at the subconstitutional level. In Part III of the essay, Alstott demonstrates how state family law privileges private ordering by reinforcing market outcomes and forcing families to bear the costs of reproducing society and the next generation of Americans. Further, between spouses, the state has come to demand private negotiation and ordering as marriage has evolved from a status to contract. With the advent of no-fault divorce and legislation encouraging divorcing couples to reach agreement on matters of property, support and child custody, the state continues to place the onus on achieving justice at dissolution on private, supposedly bargained-for, settlements. While there are limits to what can be negotiated—for instance, a parent cannot bargain away a child’s right to support—on most other issues that arise in divorce settlements, the courts rubber-stamp agreements without much inquiry into the ultimate fairness or justice of the outcomes.

Alstott raises a number of critical questions that are prompted by the state’s preference for private ordering. As an initial matter, she challenges the pervasive assumption that most families have resources that can be allocated through negotiation. As she explains, most families have few material resources and struggle to support themselves, particularly in economically perilous times. At dissolution, with the loss of economies of scale, these difficulties are compounded. If spouses strike poor bargains for support, or are unable to secure any support because of poverty, they are left to shift for themselves and to subsist on inadequate government support. Even in these dire circumstances, neoliberal assumptions regarding individual choice and agency result in the forced internalization of consequences. The state requires parents who cannot afford to support their children to bear most of the costs of their poor choices or bad luck. Women who trade away support in order to gain child custody are left to support their children the best they can with minimal state intervention or assistance. Poverty becomes an individual moral failing that must be borne by the responsible party.

This depressing outlook makes clear that the family, rather than the state, has become the main institution responsible for the welfare of citizens. As Alstott points out, “welfare programs in the United States provide only minimal and grudging resources for family life.” (P. 38). No resources are constitutionally mandated and those that are provided come with erosions of privacy and increasingly onerous requirements like mandatory drug testing, employment, and lack of a criminal record. Poverty alleviation programs have been eroded over time and continue to reinforce the neoliberal vision of individual merit and industriousness as the best way out of difficult circumstances. Moreover, unemployment benefits and Social Security rewards those who have had on-the-books employment, thereby precluding from their ambit some of the most vulnerable people in our society. The recently enacted Affordable Care Act (ACA) continues this trend by balancing neoliberal ideas with expanding access for the poor. The ACA provides health care benefits to middle class workers “by relying on private-market insurance providers.” Those who are unemployed or otherwise ineligible for coverage through their employers are provided with government subsidies that allow them to purchase insurance coverage privately. In this way, although the program expands health care coverage, the provision of health care is secured through privatization, rather than the expansion of the public safety net. Likewise, public education, perhaps the cornerstone of what might be called a “welfare state,” has been critiqued for being unequal, increasingly racially divided, and inadequate.

Alstott argues that negative liberty, the free market, and the minimal state have not insured the wellbeing of families. In the absence of positive constitutional rights to state support, families are left to divide market earnings and courts are left to adjudicate claims among individuals in the family. The law will not “aim to correct market distributions and promote a family life open to all”. (P. 26). Without the space for a more expansive vision of the state’s role in the family and adequate provision of support for those who are economically underprivileged, the forced internalization of the costs of reproducing the next generation, the care of elders, and shifting of welfare functions to the family will result in continued increases in inequality and social stratification.2 Alstott’s critique is a welcome addition to a body of literature generated by material feminists and progressives outlining the inadequacies of negative liberty, formal equality, and the erosion of the welfare state. Critical race feminists have further argued that the lack of state support for families disproportionately impacts racial minorities and that inequality is widening along racial lines. Here, Alstott’s approach analyzes family and welfare jurisprudence and legislative developments in tandem to draw connections that reveal how the two fields maintain neoliberalism and prevent progressive attempts at redistribution. In so doing, she offers a valuable corrective to the isolated analyses that currently prevail. Elaborating the argument to include analysis of the structural impediments that minorities confront would complete the unfortunately dismal picture.



  1. See e.g., Anne L. Alstott, Private Tragedies? Family Law as Social Insurance, 4 Harv. L. & Pol’y Rev. 3 (2009). []
  2. See e.g., Bruce Western et al., Inequality Among American Families with Children, 1975-2005, available at http://scholar.harvard.edu/brucewestern/files/fqant08.pdf. []
Cite as: Cyra Choudhury, The Limited Vision of Neoliberal Family Law, JOTWELL (February 18, 2015) (reviewing Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN), http://family.jotwell.com/the-limited-vision-of-neoliberal-family-law/.

Rhetoric and Clarity

James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int'l J. Jur. Fam. 239 (2013).

In “Misused Concepts and Misguided Questions,” Jim Dwyer is working within an important tradition of thinkers (going back at least to George Orwell’s famous essay, “Politics and the English Language”) who correct the sloppy arguments, rhetoric, and terminology the rest of us make, to bring us collectively towards clearer moral and policy arguments. There is also more local and recent precedent for this effort. In his critique of the misleading rhetoric of “government intervention,” Dwyer rightly notes (p. 239 n. 2) that he is making essentially the same point that Frances Olsen made in her famous 1985 article “The Myth of State Intervention in the Family,” 18 U. Mich. J. L. Reform 835 (1985). Family law scholarship can certainly use more of the sort of critique that Olsen and Dwyer bring.

Dwyer’s point (like Olsen’s earlier) is that it is wrong and misleading to view the policy choices relating to the regulation of families as being between “government intervention” and “non-intervention.” Government intervention in the family is inevitable, if only to set the baseline rights and duties of the individuals. Especially when one considers the prerogatives spouses have to one another, and the powers parents have over their children, it is hard to discern what “non-intervention” could mean. No government presence at all would entail a sort of Hobbesian world, the war of all against all. Instead, all interactions are regulated and constrained by basic rules creating criminal and civil sanctions for assault, fraud, robbery, rape, murder, etc. No one is suggesting that these “interventions” be removed.

Further, in our society, spouses have duties of support, certain property rights relating to one another’s property during marriage (especially in community property states), and rights and duties regarding property and alimony (spousal support) at divorce. These are rules put in place by the legal system above and beyond the baseline rules that govern property rights between strangers. A couple could try to mimic some of these effects through private agreement, but this generally can be done only imperfectly, and, of course, it must be noted that state enforcement of private agreements is itself a form of government intervention. The rules that give spouses rights and duties inter se that other people do not have in relation to one another, and that give parents rights and duties in relation with their children that other people do not have in relation to those children, are all in a sense government “interventions” – the only question is whether they are good rules relative to possible alternatives.

Some commentators and advocates would respond that while the distinction between “intervention” and “non-intervention” is inaccurate (and thus unhelpful), one should distinguish situations where the state is “merely” supporting existing social norms and those where it is “intervening” to change existing norms and practices. The argument would be that some family forms and spousal and parental prerogatives are “natural,” while others are imposed by a meddling government. The difficulty with that argument, as Dwyer points out, is that there is no consensus about what rights and duties family members should have, so government action will never be “merely supportive” for everyone; for at least some individuals (and some couples), the legal rules will be coercive “interventions.” Also, the fact that parental rights to control children in particular ways (including in relation to medical care, education, religious upbringing, discipline, etc.) is normal and accepted does not entail that it is not in need of justification. (Dwyer argues that while the state is justified in protecting “non-autonomous persons” like children, this limited justification would not support the current wide prerogatives parents have in decisions regarding children.)

A final point Dwyer makes is that the rhetoric of “autonomy” and “privacy” in family law arguments is frequently misplaced, especially when the subject is parental rights. Autonomy is about a person’s control over the choices affecting that person’s life; the concept is inapt when the question is the control one party (a parent) has over the choices or actions of another person (a child). Also, while American family law routinely refers to government deference to choices within a family as “family privacy,” it is not actually a matter of privacy in any normal sense of that term. Dwyer’s reasonable concern is that too often the policy analysis surrounding family matters – especially regarding what powers parents should have over their children – is being done by the positive connotations of terms like “autonomy” and “privacy” when those terms are, at best, misleading descriptions of the arguments being offered.

Cite as: Brian Bix, Rhetoric and Clarity, JOTWELL (January 19, 2015) (reviewing James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int'l J. Jur. Fam. 239 (2013)), http://family.jotwell.com/rhetoric-and-clarity/.

The Oppression of Analogy

Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014).

In 2008, America elected its first black president. In the same election, a slim majority of Californians voted to enact Proposition 8, a ballot initiative that amended the California constitution to prohibit legal recognition of same-sex marriages. Almost immediately, the election of the nation’s first black president and the enactment of Proposition 8 were linked in the media coverage of these two events and in the popular imagination. Black voters, it was argued, turned out in droves to support Barack Obama; and these same voters cast votes to deny gay men and lesbians the right to marry. According to the conventional wisdom, a group that historically struggled against prejudice and oppression had furthered the oppression of another minority group.

In his recent article, Marriage Equality Post-Racialism, Russell Robinson takes on this stock narrative of the 2008 election, and in so doing, launches a broader discussion of the racial discourse and politics of the marriage equality movement. As other scholars have done, Robinson relies on empirical evidence to dispute the claim that black voters were solely responsible for Proposition 8’s enactment. Critically, however, Robinson goes beyond merely setting the empirical record straight to offer astute observations about the intersection of race and sexuality, and the role of race in the effort to secure marriage equality for LGBT persons.

In particular, Robinson surfaces a shift in the discourse surrounding the marriage equality movement. After the enactment of Proposition 8, gay rights activists and pundits argued that black support for Proposition 8 constituted a betrayal of the gay community—a community that, like the black community, was engaged in a struggle for core civil rights. According to Robinson, this “black betrayal hypothesis” relies on analogies between the black civil rights movement and the LGBT rights movement. Indeed, it rests on the view that the black people and LGBT people have a common legacy of shared struggle against similar forces of discrimination and oppression. And as Robinson documents in painstaking detail, part of the strategy to secure marriage equality has emphasized these shared connections between the struggle for racial equality and the gay rights struggle in order secure the right to marry for same-sex couples.

To be clear, Robinson does not dispute that homophobia and racism share common elements. However, his fundamental argument is that such analogies, and the discursive shifts they undergird, are ultimately unproductive. Arguing that “gay is the new black,” Robinson maintains, elides important distinctions in the histories of each group and their respective struggles for civil rights. Further, the comparison suggests that the struggle for black civil rights has been successfully concluded and that the marriage equality is the last civil rights frontier to be conquered. And most troublingly to Robinson’s mind, the effort to analogize the LGBT rights struggle to the black civil rights struggle overlooks those individuals who belong to both groups.

In documenting the dangers of analogy (and the discursive moves it underwrites), Robinson offers three key insights. First, he disputes the claim that African Americans “pos[e] a unique threat to marriage equality” because of rampant homophobia in the black community. According to Robinson, one of the most troubling aspects of the gay-black analogy and the “black betrayal hypothesis” is that they mark African Americans as hyper-homophobic (and indeed, pathological in their homophobia), while discounting the degree to which other demographic groups, such as the religious or the elderly, may also hold homophobic views. Moreover, the emphasis on homophobia among blacks occludes the fact that “there remains a significant amount of old-fashioned racism in the gay community.” In making this observation, Robinson goes beyond the descriptive to make a normative claim—“holding minorities to a higher standard in terms of supporting other minority groups effectively makes prejudiced majority group members less blameworthy.” Such charges, he posits, divert much-needed attention from “the shared social obligation to promote equality.”

Robinson’s second insight concerns the use of race in marriage equality litigation. Relying on the briefs and other papers filed in various legal challenges to opposite-sex-only marriage regimes, Robinson documents the way in which race figures prominently in marriage equality advocacy. For example, in an effort to secure suspect class status (and the more rigorous judicial scrutiny that such status requires) marriage equality advocates frequently argue that gay men and lesbians are less politically powerful than African Americans. Such claims, Robinson contends, result in an unfortunate “oppression Olympics,” pitting blacks against LGBT persons and overlooking the degree to which both groups remain marginalized in the political process. This “oppression Olympics” relies on a postracial narrative that posits blacks as “doing ‘quite well,’ while [lesbians and gays struggle] to achieve parity.” This narrative, in Robinson’s view, is inattentive—indeed, indifferent—to “contemporary black struggles with mass incarceration, homelessness, unemployment, and health disparities, such as HIV/AIDS.” Instead, as the claims are framed in marriage equality briefs, the “central measure of progress is the right to marriage. Because “blacks can marry, and gay people cannot,” blacks have progressed further and enjoyed more political capital than their gay and lesbian counterparts. In this sense, marital, rather than material realities frame the understanding of equality.

The intense focus on marriage equality as the lynchpin of the LGBT rights struggle informs Robinson’s third claim: that the effort to secure marriage equality (and the analogies and discourse that support the effort) reflects a bid for formal equality for gay men and women. According to Robinson, marriage equality advocates “tend to endorse” a notion of equality that “simply requires law on its face to treat people without regard to sexual orientation.” While this kind of equality is attractive in principle, Robinson argues that it is deeply impoverished, and would do little to benefit the most marginalized in the LGBT community, including those LGBT persons who also identify as racial minorities. To this end, Robinson contends that the marriage equality movement’s embrace of formal equality is myopic and “short-sighted.” As he notes, “[m]arginalized members of the LGBT community, including people of color and those who are socioeconomically disadvantaged, are least likely to find a marriage license sufficient” to combat the enduring effects of homophobia and racism that they encounter in their daily lives. Instead of focusing exclusively on expanding the right to marry, the LGBT rights movement should be more attentive to other structural remedies that would address these issues.

There is much to recommend this article. Robinson is among the best of a cohort of legal scholars that take an intersectional approach to contemporary legal problems. In this regard, Marriage Equality Postracialism is a much-needed intervention that focuses on this critical issue from multiple perspectives.

In drawing attention to the tensions between race and sexual orientation that have come to the fore in the marriage equality effort, Robinson is sure to draw objections, if not outrage. Indeed, his depiction of the prevailing marriage equality discourse and its likely consequences is at once sobering and discomfiting. Nevertheless, Robinson surfaces important issues about the intersection of race, class, and sexual orientation, and initiates a long-overdue conversation regarding how social movements rely on and build upon the work of other movements in pressing for their own claims.

As importantly, Robinson complicates the prevailing discourse of marriage as the end-all-be-all of rights claims. Certainly, marriage equality will address inequities that plague the lives of some LGBT people, but, as Robinson observes, it will not solve the broader range of institutional and systemic inequalities that persist in the lives of those gays and lesbians who experience multiple forms of discrimination and marginalization.

In short, Robinson has crafted a disquieting vision of a contemporary social movement that is swiftly approaching the successful conclusion of its mission to secure marriage equality. As it reaches that conclusion, Robinson’s article provides a much-needed opportunity to take stock of this success, and to ask, whether, in all cases, the ends justify the means.

Cite as: Melissa Murray, The Oppression of Analogy, JOTWELL (December 8, 2014) (reviewing Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014)), http://family.jotwell.com/the-oppression-of-analogy/.

Representing Child Migrants (in the Midst of Our Border Crisis)

Some of the summer’s biggest news headlines focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States.1 The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process.

Within this contemporary context, Shani King’s Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, provides a fresh perspective on the issue. King argues that three constellations of international and regional human rights standards—children’s rights, immigrants’ rights, and the right to civil counsel—should be interpreted together to provide the right to free legal counsel for unaccompanied minors in immigration proceedings. King offers an extremely helpful collection of international and regional standards on these rights, as well as comparative examples from countries that provide representation to unaccompanied minors facing immigration proceedings. Congress, he concludes, should likewise enact legislation guaranteeing legal representation to unaccompanied minors. King’s article is thought-provoking and practically useful, and it can serve as a source of persuasive international authority to support recent proposals and lawsuits calling for constitutional due process rights of unaccompanied minors.

King begins with a helpful review of the standard law and policy arguments in favor of appointing free legal counsel to unaccompanied minors: the vulnerability of unaccompanied minors as they navigate an unfamiliar and arduous legal process; the complexity of immigration law; and the significantly increased likelihood for immigrants, especially minors, with lawyers to win their cases over those who represent themselves. Few academics, however, have argued that unaccompanied minors have the right to free legal counsel, and constitutional challenges along these lines have failed. (N.B.: the ACLU recently filed a new lawsuit challenging the federal government’s failure to provide minors with legal representation in deportation hearings).2 The closest the federal government has come to fulfilling this right, King offers, is a contract with the Vera Institute of Justice to manage the Unaccompanied Children Program, which provides legal assistance to unaccompanied minors and has increased the percentage of children who receive free legal assistance in immigration proceedings from ten percent in 2003 to fifty percent in 2011.3

Although King does not advert to the principal human rights instruments that are binding upon the United States (the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the American Declaration on the Rights and Duties of Man), he does undertake a thoughtful exploration of various international and regional standards that support free legal representation to children in other international law contexts. King thoughtfully combs through human rights treaties, case law, and “soft law” from the United Nations treaty monitoring bodies, and the European, Inter-American, and African human rights systems. He describes how international bodies have explicitly applied both the international “best interests of the child” standard (which, interestingly, was modeled after the U.S. “best interests” standard) and the right to family unity in the context of unaccompanied minors, and makes a compelling argument for why proceedings for unaccompanied minors “may well present the most compelling scenario for free civil counsel.” (366).

The Article makes an especially valuable contribution when it surveys the laws of various countries that provide free representation to unaccompanied minors. Some countries, such as Finland, Norway, Sweden, Switzerland, and the Netherlands, appoint attorneys and personal representatives/guardians for unaccompanied minors. Other countries, including Austria, the Netherlands, Finland, Canada, the United Kingdom, France, Denmark, Australia, and New Zealand, provide children the right to free representation—legal, personal, or both—only after preliminary processing takes place, and some of these countries provide this right only to children seeking asylum. In contrast, the United States and Uganda provide children the right to counsel only at the minor’s expense. King maps these foreign laws and practices onto international human rights standards and analyzes their shortcomings, such as exceptions to the right to free representation, the appointment of non-lawyer legal representatives, and delays resulting in crucial interviews occurring without representation.

King concludes by recommending a model for Congress that guarantees “the appointment of an attorney, who gives the child a voice, before any interviews by border patrol agents or immigration officials, [and] who is specially trained in immigration law and in representing children. For those children who cannot express their own interests, the government should also appoint a personal representative, or guardian, who can guide the attorneys.” (376). The guardian must be the exception rather than the rule, he wisely insists, because the lawyer’s role is to represent the client’s best interests, and two many cooks could unnecessarily complicate matters.

Alone and Unrepresented is brimming with international standards and comparative examples that make a compelling case for the right to free counsel for unaccompanied minors in the U.S. Indeed, advocates are now making that case in the international arena. Last month, a coalition of human rights and immigrants’ rights advocates appeared at a hearing before the Inter-American Commission on Human Rights on the “Human Rights Situation of Migrant and Refugee Children and Families in the United States” and argued that the United States is committing human rights violations by, inter alia, failing to provide migrant children with legal representation. The hearing came on the heels of a site visit by the Commission to the southern U.S. border to evaluate U.S. compliance with international human rights obligations. The Commission’s preliminary findings identified several troubling human rights violations. King’s thoughtful analysis is reflected in these developments in the international arena, and marks an important example of human rights praxis.




  1. Haeyoun Park, Q. and A.: Children at the Border, Aug. 7, 2014 (updated), available at http://www.nytimes.com/interactive/2014/07/15/us/questions-about-the-border-kids.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article&_r=0. []
  2. See ACLU Press Release, J.E.F.M. v. Holder, Aug. 1, 2014, available at https://www.aclu.org/immigrants-rights/jefm-v-holder. []
  3. For detailed data on unaccompanied children in immigration court, see Transactional Records Access Clearinghouse (TRAC) at Syracuse University, New Data on Unaccompanied Children in Immigration Court, July 15, 2014, available at http://trac.syr.edu/immigration/reports/359/. []
Cite as: Caroline Bettinger-Lopez, Representing Child Migrants (in the Midst of Our Border Crisis), JOTWELL (November 6, 2014) (reviewing Shani M. King, Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, 50 Harv. J. Legis. 331 (2013)), http://family.jotwell.com/representing-child-migrants-in-the-midst-of-our-border-crisis/.

A New and Different Way of Looking at Family-Based Immigration Policy

Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013).

In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.

Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety.

As a first step, Abrams explains that family connections are the dominant means—to an overwhelming degree—by which immigrants enter the United States. She calculates that about eighty percent of green card recipients in 2011 were family members of U.S. citizens or legal permanent residents. This group includes not only those individuals who belong to explicitly family-based classes of admission, but also relatives of employment-based immigrants, diversity-lottery winners, refugees, and asylum-seekers. Abrams’ statistical analysis makes clear that “family-ness” is so central to U.S. immigration policy that it is worth examining the concept directly, rather than only through the lenses of human rights and market forces.

As a second step, Abrams very helpfully situates her project within the context of Congress’ approach (or maybe more accurately lack thereof) to family-based immigration throughout the nineteenth and twentieth centuries. Her historical survey is complicated by somewhat incoherent statutory development and a sparse legislative history that reveals little about how Congress eventually shifted from a quota regime to the preference-based system that we know today. As Abrams notes, early American notions of family-based immigration were rooted in the tacit gender-role assumptions that also underpin coverture, with a husband’s citizenship status and domicile determining his wife’s. Driving home this point, she references the Expatriation Act of 1907, under which a woman actually forfeited her U.S. citizenship by marrying an “alien,” on the ground that she took on his domicile and nationality upon marriage.

Against this backdrop, Abrams examines the role and evolution of early family-based immigration rules in the context of the national-origins quota system that developed during the 1920s. She traces how, at first, preference categories reflected the long-standing assumptions about determinative powers wielded by male heads of households, but then gradually coalesced into a structure that privileged an immigrant’s nuclear family (the members of which were not subject to the quota). Although preference categories were expanded during the early 1950s to encompass certain extended family relationships, these more distant relations were still subject to quota restrictions, limiting the impact of these facially pro-family-immigration reforms. National quotas so dominated early immigration policy that Abrams surmises (in the absence of a clear legislative record) that family preference categories were an afterthought rather than a calculated effort at policymaking.

The repeal of the quota regime in 1964 was a watershed moment in the history of family-based immigration, and the Hart-Cellar Act serves as the foundation for our current immigration system. Abrams explores how ostensibly pro-family immigration policies in this context might have been motivated by unrelated, ulterior motives. She explores how the Hart Cellar Act’s new family preference categories may have served as a subtle means of preserving the quota regime rather than encouraging family-based immigration. That is, many in Congress may have presumed that those nationalities that had contributed most to the inflow of immigrants under the old quota regime would disproportionately serve as sponsors of relatives under the new preference system, helping to maintain the status quo. However, if such social engineering were the goal, Congress’s approach backfired. As Abrams puts it: “Recent immigrants from, say, China had a great incentive to sponsor their family members. A sixth-generation American whose ancestors came from England had no family in England left to sponsor.” Abrams’ historical analysis suggests that pro-family immigration policy rationales likely played a very limited role in the development of U.S. immigration law—notwithstanding the fact that family-based immigration now dominates. Even when Congress has engaged explicitly in family-definition it has done so mostly to perpetuate traditionalist views of family life (traditional gender roles, privileging the nuclear family) or to disguise unsavory efforts at social engineering (national quotas).

In the rest of the article, Abrams steps into this vast legislative void and describes three broad categories of policy rationales that might justify family-based immigration: integration, labor and social engineering. In a more progressive take on the pro-family ideas underlying coverture, Abrams proposes that family-based immigration might hasten and strengthen integration into American society by enhancing stability and aligning individual self-interest with the interests of the nation as a whole. Such integration might then, she suggests, encourage interaction with and contribution to the broader society. However, Abrams is careful to acknowledge that the family’s role in an individual’s integration might depend heavily on the circumstances. Family life could offer a comfort level that makes integration with the larger community a more natural process, but too much comfort could easily lead to insularity.

Employment-based immigration has a family component (whenever close family members accompany those with employer sponsorship). But Abrams points out that the opposite is also true: Family-based immigration typically has a labor component. Even those who have not been granted entry to the United States on the basis of skills that are particularly desirable to major domestic employers are still likely to participate in the labor force in some way once here. In the labor context, Abrams suggests that family ties might, in the end, lead to greater on-the-job stability and success for newcomers: “Although employment-based immigration (including unauthorized migration for a particular job) often results from immigration networks, family-sponsored immigration provides a surer base for the new immigrant to operate from than a friendship or employment network.” For instance, a U.S. resident or citizen wishing to sponsor a close relative might have more intimate knowledge than an employer regarding her suitability for immigration, and the affidavit of support requirement creates a significant incentive for careful decision-making and active participation in the process of social integration.

Once here, non-employment-based immigrants, Abrams suggests, might also fill a need for less skilled labor (child care, housework, manual labor, etc.), either on behalf of a sponsor or in the context of a private, informal employment arrangements for which employer sponsorship is less likely to be available. Abrams also points to the disproportionate use of family-based immigration by women who might be more likely to participate in some sectors of the informal economy. Family-based immigration may therefore serve as a “proxy” for unskilled laborers needed to satisfy demand that is not being met through labor-based immigration.

Perhaps the most interesting—but, potentially, the most troubling—pro-family policy rationale that Abrams proposes involves legislative social engineering. She proceeds from the oft-asserted claim that state law dominates the regulation of key family institutions—marriage and divorce, procreation, child care and custody—and that immigration policy may afford Congress a means of acting “obliquely” to further pro-federal policy in these areas. Along those lines, diminished federal judicial scrutiny in the immigration context may lead Congress to view this as particularly fertile ground for unfettered policymaking. For example, Congress might seek to “subtly encourage some kinds of families over others….” Family-based immigration policies—depending on how “family” is defined—could express a preference for married couples based on an assumption that these relationships might tend to be more stable or are likely to help the nation compensate for a declining domestic birthrate. Again in this context, Abrams views family-based immigration as a possible proxy by which women can be targeted to compensate for male-dominated labor-based immigration: “Given that women disproportionately use family categories to immigrate, and for all the reasons discussed above that family-sponsored immigration may provide a more flexible labor force, we might want to maximize this kind of immigration so that there will be a large, young, female population of potential care workers for the elderly.”

Although her proposed framework is a comprehensive one, Abrams is not suggesting that it supplant the traditional rights/labor dichotomy. She acknowledges, for instance, that the moral heft of rights-based rationales might, in the end, force lawmakers to follow a particular course, notwithstanding competing pro-family or pro-labor interests. She also concedes that the three broad policy aims she describes—integration, labor and social engineering—might themselves conflict with each other in any given context. But all policy frameworks have their unique limitations. Abrams’ article has the potential to play an important role in exposing certain policy motivations that might not be made explicit in the legislative history or in family-based immigration scholarship.

In the end, where Abrams’ family-based framework leads depends on the assumptions one makes about the nature of family-ness. In the hands of a proponent of maximizing employment-based immigration or someone holding a very traditionalist notion of family, the framework could be used to justify an approach to family-definition that would no doubt outrage a proponent of a rights-based, functional approach to family. Conversely, starting from a functional approach to family, the framework would point the way to a completely open immigration policy without quotas or preferences of any kind—an outcome that might horrify many in favor of pure, employment-based immigration.

At the same time, those on each side of the family/labor divide can employ the framework in a manner that critiques the other side’s approach, exposing possible shortcomings or, at least, casting them in a clearer light. This may be the context in which this new and different way of looking at family-based immigration may yield the greatest benefits.

Cite as: Shani King, A New and Different Way of Looking at Family-Based Immigration Policy, JOTWELL (October 7, 2014) (reviewing Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013)), http://family.jotwell.com/a-new-and-different-way-of-looking-at-family-based-immigration-policy/.