Desegregating the Heart

In her new book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Interracial Family, Angela Onwuachi-Willig brilliantly deconstructs and challenges the norm of the monoracial family — the idea that “normal” families are and indeed should be produced by heterosexual single-race couples. As Onwuachi-Willig explains, this norm fundamentally shapes American legal and social relations, including marriage and family formation. The social and legal challenges created by the norm of the monoracial family have long been a theme of Onwuachi-Willig’s work,1 but According to Our Hearts charts new territory by more clearly demonstrating the connection between racial formation and family formation. As a consequence, the book is destined to find fans among family law scholars, race discrimination scholars, and even lay readers interested in better understanding the role family connections play in triggering race discrimination.

Onwuachi-Willig uses the tragic love story of Alice Jones and Leonard “Kip” Rhinelander as a window into three key themes that she believes continue to inform discussions of the multiracial family today. The first theme, “interraciality,” allows us to explore the role that cross-racial family relationships play in triggering race discrimination. She argues that the study of race discrimination has largely neglected discrimination’s relational component. This relational component posits that discrimination may be triggered by others’ concerns about cross-racial intimate contact or family relations, rather than a single individual’s apparent racial status. The second theme is an examination of the fluid nature of racial identity in multiracial family units. Onwuachi-Willig explores the questions of power that emerge when the individual’s interest in defining her racial identity is juxtaposed against the competing interests of family members, the community, and the state. The book’s third, and perhaps most important theme is the racial hierarchy that exists between various types of interracial families, with black-white unions being the most disfavored. Onwuachi-Willig bravely takes on this hierarchy and deftly illuminates the hierarchy’s material and social consequences. Specifically, she suggests that the special disfavor saved for black-white marriages, particularly those involving black women and white men, ensures that wealth does not easily transfer through marriage and inheritance from white hands into black ones.

The first half of Onwuachi-Willig’s book, which focuses on the love affair between Alice Jones and Leonard Rhinelander, is a tragic tale worth reading in its own right. Alice Jones, a working class colored woman, met, fell in love with, and married Kip Rhinelander, the wealthy white prodigal son of a New York society family. When Kip’s father learned of the marriage, he sought to have it annulled. Importantly, although New York law in the 1920s did not prohibit Kip and Alice from marrying, the racial culture of the period made the marriage unthinkable in respectable circles, and law facilitated the enforcement of this cultural understanding.

The central question at the annulment trial was whether Alice had deceived Leonard about her race by telling him she was white, a material misrepresentation that would merit an annulment. If it was established that Leonard knew Alice’s race at the time of the marriage, there would be no fraud, and thus no grounds for an annulment. Instead, a divorce—and the concomitant property settlement and alimony—would be the only vehicle for ending the marriage.

Onwuachi-Willig masterfully uses the Rhinelander tragedy to illuminate all of her themes. She shows that the public ridicule and censure that Alice and Kip faced was not based on discrimination because of each party’s individual’s racial status, but rather, because of “interraciality,” – the threat of cross racial intimacy. The challenges created by a multiracial individual’s fluid approach to racial identification—what I have elsewhere termed “elective race”2—was also central to the Rhinelander case. The proof at trial showed that Alice identified herself as white in certain contexts and colored in others, which Kip’s lawyers argued established fraud. The more likely (and modern) account is that Alice had a very complex and conflicted approach to racial self-identification. Further, Onwuachi-Willig shows that the public opprobrium the couple suffered was in large part prompted by the racial hierarchy that ranks interracial unions—then and now. This hierarchy, which Onwuachi-Willig contends is largely based on the devaluation of black women, relies on the assumption that when white men voluntarily become involved with black women, the attraction is driven by lust rather than a real and substantial emotional connection.

Interraciality is destined to be an important concept because antidiscrimination law and scholarship has largely neglected discrimination triggered by interracial intimacy and connection. Save for discrete theories, like interracial association doctrine,3 race discrimination law is focused on how an individual is treated rather than how he is treated as a consequence of his cross racial intimate and family relationships. As a consequence, the law at present is not based on a full picture of how discrimination operates on the ground and in the most intimate areas of our lives. Onwuachi-Willig’s discussion of the fluid nature of racial identity also strikes a chord, in part because in the contemporary era multiracial persons have made the case for respecting more fluid approaches to racial identification. However, Onwuachi-Willig’s greatest contribution may be her forthright discussion of the racial hierarchy between various kinds of multiracial couplings, the legal foundations of this hierarchy, and the hierarchy’s contemporary material implications.

In sum, the book spurs us to think more deeply about the connection between race, law and intimate life. Indeed, the book transforms common sense, seemingly apolitical attraction and intimacy questions into questions with broad material implications. In this way, Onwuachi-Willig’s book revisits a classic but still important touchstone in feminist legal theory—the notion that the personal is political. She reminds us that our desire for connectedness and belonging, if pursued in an unreflective manner, can be just as much a vehicle for social inequality as the legal restrictions on mixed race coupling declared unconstitutional



  1. See e.g., Angela Onwuachi-Willig, A Beautiful Lie: Exploring Rhinelander v. Rhinelander as a Formative Lesson on Race, Identity, Marriage, and Family, 95 Cal. L. Rev. 2393, 2458 (2007) (identifying and analyzing the the monoracial family norm); Angela Onwuachi-Willig & Jacob Willig-Onwuachi, A House Divided: The Invisibility of the Multiracial Family, 44 Harv. C.R.-C.L. L. Rev. 231 (discussing the cultural and legal erasure of the black-white interracial family). []
  2. For an explanation of “elective race” and its role in Onwuachi-Willig’s book, see Camille Gear Rich, Making the Modern Family: Interracial Intimacy and the Production of Whiteness, 127 Harv. L. Rev. 1341 (2014). []
  3. Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 988, 994-95 (6th Cir.1999) (holding Title VII applicable to allegation that employee suffered discrimination because he had a biracial daughter); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir.1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race.”). []
 
 

LGBTA: Asexuality Becomes a Movement

Elizabeth F. Emens, Compulsory Sexuality, 66 Stan. L. Rev. 303 (2014)

Fourteen years ago, Kenji Yoshino observed that the terms “heterosexual” and “homosexual” were commonly used “as mutually exclusive, cumulatively exhaustive categories”—a usage that casually implied that “bisexuals” and “asexuals” did not exist. In this well-known article in the Stanford Law Review,1 Yoshino methodically examined the ways that straights and gays have conspired to “erase” bisexuals. But while he acknowledged that “asexuals are, if anything, more likely than bisexuals to be erased in sexuality discourse,” he regretfully decided “not to attempt a systematic discussion of asexuals in this article.” In light of the “undertheorized divergences between bisexuality and asexuality,” he concluded “that the two topics deserve separate analysis.”

Under the circumstances, it is especially fitting that the Stanford Law Review has published the first law review article on asexuality. In Compulsory Sexuality, Emens demonstrates the payoff of giving asexuality its analytical due. After briefly describing asexuality’s emergence in several discourses, she turns her eye toward the questions of theory and law posed by the rise of this new identity movement.

Part I tells the story of asexuality’s coming out.  In particular, Emens focuses on four events that mark the rise of asexuality in four distinct contexts—conceptual, clinical, empirical, and social/political. In this telling, asexuality emerged as a conceptual and a clinical category in the early 1980s—at least twenty years before it became an object of empirical study, or the social and political foundation of a new identity movement.

As Emens explains, the concept of asexuality is typically attributed to the psychologist Michael D. Storms, who posited asexuality as a fourth “sexual orientation” alongside homosexuality, heterosexuality, and bisexuality in an article published in 1980.2 During that same year, the American Psychiatric Association introduced a new clinical diagnosis of asexuality in the Diagnostic and Statistical Manual. Although the diagnosis was initially known as “Inhibited Sexual Desire,” it has since been reformulated as “Hypoactive Sexual Desire Disorder,” and its definition has been marked by controversial revisions that bear striking similarities to the DSM’s early diagnoses of “homosexuality” and “gender identity disorder.”

In spite of these early forays into the subject, asexuality did not become an object of empirical study until 2004, when the psychologist Anthony Boegart reported that 1% of the respondents from a national probability sample of more than 18,000 British residents agreed with the statement, “I have never felt sexually attracted to anyone at all,” and they reported having fewer sexual partners, and less frequent sexual activity with others. During this same time period, a community of self-identified asexuals began to form. In 2001, a self-identified asexual named David Jay founded AVEN, the Asexuality Visibility Education Network. As Emens reports, “AVEN’s membership has grown exponentially in the past decade—from 134 members in 2002, to 26,780 members in 2011, to over 70,000 members in 2013.”

Parts II and III of Compulsory Sexuality provide a careful account of this new identity movement, and an exploration of the fascinating theoretical and legal questions that it presents to scholars and advocates. Part II tackles the task of “mapping asexual identity” through a series of definitional and comparative inquiries. First, Emens notes that asexual identity is defined by a lack of attraction and a lack of choice: Asexuals claim that they have “very little or absolutely no” sexual attraction to other people, and that this lack of attraction is “not a choice.” Next, she observes that asexuals have developed a rich taxonomy of distinctions to mark the boundaries of what counts as “asexual,” and to identify subgroups within the asexual community itself. For example, she notes that some asexuals masturbate, but they do not consider masturbation to be a form of “sex”; some asexuals pursue romantic relationships, but they do not consider these relationships to be “sexual.”

As Emens artfully explains, each of these claims illustrates that asexual identity has been self-consciously articulated “in relation” to other sexual identities—in response to “diversity” within the community of asexuals and “skepticism” from outsiders. Building further upon this relational model, Emens then considers how asexual identity intersects with a long list of other identities—first homosexuality, bisexuality, and polyamory; then gender and disability; and finally as a model of sexual identity based on minoritizing or universalizing conceptions of asexuality, or on orientations toward the quantity, autoeroticism, narcissism, or romanticism of sex. More than anything else in the article, this analysis of asexuality’s intersections offers a lesson in asexuality’s potential to disrupt and transform extant sexuality and identity paradigms—and an example of Emens’ analytical dexterity and revelatory power. Through the lens of asexuality, Emens shows us again and again that there is more to our sexuality and our selves than we could have imagined.

In Part III, Emens offers “a framework for identifying and analyzing types of interactions between law and asexuality,” which she hopes will serve as “a toolkit for advocates and thinkers about asexuality, as they consider what areas of law, if any, they might want to try to change,” and will show “how asexuality can operate as a diagnostic tool or heuristic for identifyingthe ways that law’s interactions with sexuality affect the broader society.” In particular, Emens claims that asexuality and law interact along four analytical axes—(1) legal requirements of sexual activity; (2) legal exceptions to shield sexuality from commodification; (3) legal protections from others’ sexuality; and (4) legal protections for sexual identity. Through this analytical framework, Emens explores the way that asexual identity informs ongoing debates about a broad range of legal issues—the role of conjugality in marriage law, prohibitions on sex work, the maintenance of sex-segregated public spaces, and the benefits and burdens of sexual harassment law. Above all, however, Emens spends the most time considering whether asexuality is likely to be included in federal, state, and local antidiscrimination laws. As Emens suggests, each of these examples reveals another way that law constitutes sexuality for all of us, regardless of how we happen to identify ourselves.

This claim brings us back to the article’s provocative title, Compulsory Sexuality, which refers to Adrienne Rich’s famous polemic on Compulsory Heterosexuality and Lesbian Existence.3 In her discussion of a “universalizing” model of asexuality, Emens broaches the most tantalizing prospect of asexuality’s impact. Drawing on Leo Bersani and Eve Kosofsky Sedgwick, she hints at the possibility that we may all be “asexuals” in one sense or another—and as such, we may all be compelled into sexuality by culture and law.

To be sure, Emens remains thoroughly agnostic on such questions—this is an introductory, exploratory piece, far from the lesbian manifesto for which it was named. Throughout the article, Emens shifts between sweeping claims about “people whose experience is in some significant sense asexual, whether or not they identify as asexual,” and comparatively modest claims about the differences between “sexuals” and “asexuals.” Emens cautiously suggests that a “a much milder version of a universalizing account might have something to it”: “Some work suggests that many people go through more or less sexual phases of their lives, and even of their days,” and “it seems plausible to think that everyone—or, to be safe, let us say nearly everyone—has at some point felt a lack of sexual attraction.” “In this context, a universalizing model might lead us to ask whether the common disbelief or skepticism in response to asexuality could be defensive.”

Although Emens concludes these speculations with a prudent “perhaps so,” they seem to identify the most radical threat that asexuality poses to our laws and our culture. More than anything else, the universalizing model of sexuality promises to make good on the prediction with which Emens concludes: “Examining our lives and laws through the lens of asexuality may lead all of us, sexual and asexual alike, somewhere we have not been before.”

 

 



  1. Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 Stan. L. Rev. 353 (2000). []
  2. Michael D. Storms, Theories of Sexual Orientation, 38 J. Personality & Soc. Psychol. 783, 784-85 (1980). []
  3. Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, 5 Signs 631 (1980). []
 
 

Same-Sex Marriage in Windsor and the Indignities of Dignity

Noa Ben-Asher, Conferring Dignity: The Metamorphosis of the Legal Homosexual, 37 Harv. J.L. & Gender (forthcoming 2014), available at SSRN.

In United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional. The decision renders married same-sex couples eligible for the same federal benefits (i.e., tax treatment and social security benefits) as their opposite-sex counterparts. In the midst of a largely celebratory reception of the decision, Noa Ben-Asher offers a much-needed critical analysis of Windsor’s bundle of rhetorical and doctrinal sticks. In Conferring Dignity: The Metamorphosis of the Legal Homosexual, Ben-Asher takes us through a genealogy of the “legal homosexual” in Supreme Court case law. As Ben-Asher notes, this genealogy begins with moral opprobrium and ends in Windsor’s exalted language about the dignity of state-sanctioned, same-sex couples. Recognizing dignity: Who can be against that, right? Ben-Asher demonstrates that in our post-realist world the story is more complicated.

The first part of Ben-Asher’s contribution is an astute rendering of the Supreme Court’s evolving doctrinal constructions of homosexual conduct and identity. Ben-Asher identifies four stages in what she terms the “metamorphosis of the legal homosexual.” In each stage, Ben-Asher reveals distinct moral assessments of the legal homosexual’s nature and conduct, as well as different understandings of the state’s role in the regulation of morals.

Ben-Asher identifies the first stage with the Court’s 1986 decision in Bowers v. Hardwick, where the Court held anti-sodomy laws constitutional. In so doing, the Court constructed homosexuals as a category of people who engage in same-sex sodomy, initiating an identity-based legal understanding of homosexuality. The moral treatment of homosexuals consisted of outright condemnation. Legislation that was intended solely to regulate morals was deemed constitutionally acceptable. Although the right of privacy had been deployed to invalidate a range of other morality-based laws—laws prohibiting contraceptive use and abortion, among them—under Bowers, homosexuals were rendered sodomites removed from the protection of constitutional privacy.

A decade later, Romer v. Evans inaugurated a second stage in the law’s construction of the legal homosexual according to Ben-Asher. Each one of the discursive and doctrinal elements Ben-Asher identified in Bowers began to shift, amounting to what she describes as the “Equal Rights” phase. The first major change can be observed in the description of homosexuals, who moved from being characterized as deviant sodomites to being characterized as individual members of a protected class of citizens. The act of sodomy disappeared from view, giving way to a binary construction of “gay and lesbian” sexual identity that perforce excluded bisexuals. The moral assessment of homosexuality also shifted from the outright disapproval of Bowers to a more morally neutral posture. The state’s authority to regulate morality narrowed, as Romer held that bare animus towards a class of people was insufficient as a legitimate government interest to support a discriminatory classification.

The third stage in the construction of the legal homosexual, as Ben-Asher explains, can be found in Lawrence v. Texas. Perhaps the most important discursive element in Lawrence was the shift away from an emphasis on homosexual identity to conduct. This time, however, the conduct was not characterized as immoral, libertine sex, but rather as a socially desirable means of constructing a “potentially” more enduring bond between two people. Moral neutrality thus moved into moral recognition of conduct that could potentially lead to coupledom within the privacy of the bedroom.

According to Ben-Asher, Windsor represents the fourth and latest stage in the doctrinal construction of the “legal homosexual.” The potentially enduring couple glimpsed in Lawrence v. Texas has now matured into the same-sex married couple. Moral recognition of the relationship has similarly advanced into high moral praise. The state, previously entitled to legislate morality, then explicitly restrained in such regulation, is now in the position of bestowing dignity on same-sex couples by recognizing their marriages. As Ben-Asher notes, this turn toward legal recognition is another form of morals legislation—the constitutionalized praise of same-sex marriage.

The Windsor genealogy that Ben-Asher offers is important because it underlines how the rhetorical and doctrinal contours of the current construction of the legal homosexual have emerged out of previous case law. The prior stages in this metamorphosis set the stage for the next, such that Windsor’s account of “dignity’” ends up being a partial overcoming of prior constructions, rather than an all-out rhetorical and doctrinal victory for same-sex marriage proponents.

This last point becomes evident through Ben-Asher’s critical engagement with the concept of dignity, which constitutes the article’s second distinct contribution. As Ben-Asher demonstrates, Windsor’s notion of dignity is not the universal, all-encompassing human dignity imagined by liberal philosophy, but a rather stingy, limping dignity, that comes with strings attached to it. The state decides who is and who is not worthy of this dignity. Ben-Asher further argues that even though the religious view of marriage as a sacred institution is not explicitly addressed in Windsor, it, nonetheless, provides one of the most important “conceptual links” to the concept of dignity in the decision. The other such link is marriage’s normalizing power, its capacity to convert presumably wildly libidinal homosexuals to monogamous coupledom. Ben-Asher argues that even though neither one of these ideas is explicitly addressed in Windsor, its concept of dignity “is hardly intelligible” without them. The problem, Ben-Asher argues, is that the sacralizing link to Windsor’s dignity is not appropriate in a liberal state, while the normalizing link entails a negative idea of human sexuality that in itself is based on dubious moral grounds.

Ben-Asher’s final critique of Windsor’s dignity lies in its capacity to create injured subjectivities. Accepting Windsor’s bestowed dignity implicitly accepts that same-sex couples should feel harmed and humiliated in states that don’t recognize their unions, even if they currently do not. Forming a group identity based on injury risks shaping subjects “unable to articulate new values, new ideas, new morality, and new alternatives.” Ben-Asher ends with a brief call for a discursive strategy that relies neither on injury nor on Windsor’s thin conception of dignity. She calls for a state that would not distribute dignity but rather recognize it equally for all citizens without implying that marriage enhances one’s dignity.

Assuming that we take on Ben-Asher’s call for liberal human dignity as a doctrinal strategy, how far might that take us? Marriages internalize dependency costs (and can legally be obliged to do so), performing a function that other societies have chosen to assign to the state in its basic welfare provisioning. The dignity of marriage is perhaps a discursive carrot that we provide in our constant effort to channel people into an institution that we have structured as welfare-enhancing, especially against the background of minimal public involvement in the costs of dependency. The dignity of married people is indeed a hierarchical concept. Their dignity implies the indignity of singles, in much the same way that the dignity of the employed carries within it the indignity of the unemployed and welfare-dependent. It may be that we are dealing with a functional equivalent for the sacralizing link to married dignity that Ben-Asher identified. This functional sacralization of marriage might be hard to disturb without reconsideration of other basic institutions such as the welfare state, and without treading well beyond the confines of constitutional doctrine. Ben-Asher’s insightful venturing into some of the indignities of dignity in the constitutional law field opens up fruitful terrain for further inquiry.

 
 

Lots of Love for this Loving Analysis

I. Bennett Capers, The Crime of Loving: Loving, Lawrence, and Beyond, in Loving v. Virginia in a Post Racial World” Rethinking Race, Sex, and Marriage (Kevin Noble Maillard & Rose Cuison Villazor eds., 2012).

Few authors can bring cases and their meaning(s) alive like Professor Bennett Capers. Capers does not disappoint with his recent chapter The Crime of Loving: Loving, Lawrence, and Beyond. Capers provides a criminal law lens for family law scholars to further examine and understand the landmark decision, Loving v. Virginia. In Loving, the Supreme Court struck down Virginia statutes that criminally prohibited and punished marriage between Whites and non-Whites as violations of equal protection and due process. In reconsidering this landmark case through the lens of criminal law, Capers exposes the power of “white-letter law,” which “suggests societal and normative laws that stand side by side and often undergird black-letter law, but . . . [that] remain invisible to the naked eye.” (P. 120.) More so, Capers beautifully reveals how “Loving and Lawrence both serve as cautionary reminders of the long leash we have given to criminal law.” (P. 125.) He details the many ways in which criminal law has been used to regulate and shape many aspects of our personal and social lives. Noting such regulation has occurred through the use of “a whole host of victimless crimes,” such as adultery, gambling, pornography, and premarital sex, Capers joins scholars such as Melissa Murray in exposing the often-ignored manner in which criminal law is used to invade citizens’ privacy and enact a moral code upon behaviors that are not generally associated with criminality.1

Capers begins his chapter with a compelling narrative that provides a vivid picture of Loving’s limited impact on towns such as his hometown of Charleston, South Carolina. Capers starts by comparing the “Charleston of [his] youth,” a place that “had only one interracial couple” with Richard and Mildred Loving’s hometown of Central Point, Virginia, a rare, integrated community in the South “in which [the Lovings] knew they could live as husband and wife . . . . a place where they would be welcome . . . . a place they could call home.” (Pp. 114, 118–19.) The difference, Capers explains, was not the black-letter law in the two locations; after all, interracial marriage was illegal in Virginia at the time the Lovings got married, but was legal in Charleston—and indeed, nationally—during his youth. Rather, the difference was in the white-letter law, the extralegal prohibitions “that reminded people of their place and reminds them still.” (P. 116.) As Capers makes clear, “Brown or no Brown, Loving or no Loving,” the Charleston of his youth and of today includes very few interracial families because “people kn[o]w their place.” (P. 116.) Indeed, Capers implies that a black-letter prohibition was unnecessary to maintain this status quo. He writes:

[I]t is hard for me to imagine a black person and a white person falling in love there. The blacks in Charleston, unlike the blacks in Central Point [many of whom were mixed-race like Mildred Loving], tend to be very black—“pure black,” outsiders sometimes say—so much so that the few light-skinned blacks that are there are still viewed with a mixture of envy and suspicion. And it is all but impossible for me to imagine a black person and white person, as a married couple, wanting to stay there, or being welcomed there. . . . And race is still everything for South Carolina, as the controversies over the Confederate flag and interracial dating at Bob Jones University attest to. It is a place where miscegenation was so unthinkable that for the longest time, no black-letter prohibition was necessary. (P. 119.)

Noting that Loving “did little to disrupt the white-letter law of racial trespass,” Capers also highlights how the policing of interracial intimacy, not just in South Carolina, but also nationally, is (and was) influenced by both race and gender, as evidenced by the disparate policing of and punishment for relations between black men and white women and the limited prosecution of rape and assault of black women by white men. (P. 120.) He explains, “[i]t was primarily interracial intimacy between black men and white women that was policed. Intimacies between white men and black women, as long as kept on the down-low, enjoyed a white-letter exemption.” (P. 121.)

Critically, Capers analyzes the differences and connections between Loving and Lawrence v. Texas, adding another complex and important layer to his analysis of Loving. As he observes, both cases involved interracial lovers, and both cases involved the use of criminal law to regulate “outsider” intimacies, but gender, or rather, the absence of any gender difference between the actors in one of these cases, has played an important role in shaping the different ways in which Loving and Lawrence were viewed and have been considered. Through his comparison of the two cases, Capers reveals how “sexual sameness” can often trump racial difference, as it arguably did in Lawrence, where no mention is made of the defendants’ races at all and instead “the gay black man in Lawrence [is] treated as white.” (Pp. 125–26.) Capers also exposes how “sexual sameness” among couples—in a land of presumed heterosexuality—may raise no eyebrows and may even work to advantage a black person in a same-sex, interracial couple (such as Capers himself) by, for example, explaining his presence in a predominantly white neighborhood. As Capers poignantly reveals:

In my darker moods, I tell myself that, partnered with a white man, I am marked as safe, I’m allowed to pass through. Sometimes, when my mood is darker still, I use the words “assimilated” and “domesticated.” Me, marked as assimilated and domesticated, allowed to pass, I become not black. Black no more. Or, at least, a good black. (P. 127.)

In all, Capers provides a sobering account of the history (and enduring presence) of criminal law’s reach (as well as the reach of social norms) on love and intimacy.

In the end, Capers leaves us with a hopeful outlook. He finishes with sweet sentiments about his own love and interracial marriage and concludes with a comment that perhaps he was wrong when he “said before that Loving, like McLaughlin [v. Florida] before it and Lawrence after it, began with a tip and arrest.” Implicitly recognizing intimacy’s triumph over the force of the criminal law, Capers instead notes:

Loving, I’m sure, began with a look.
With a kiss.
With love.
I’m sure. (P. 127.)

Such beautiful, honest, and courageous moments in Capers’s chapter, along with Capers’s searing analysis of the Loving and Lawrence cases, make The Crime of Loving well worth reading.



  1. See generally Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253, 1257 (2009) (examining and using the case State v. Koso as “a unique lens through which to view the relationship between criminal law and family law and the way that it organizes intimate life”). []
 
 

Denaturing the Family

Clare Huntington, Staging the Family, 88 N.Y.U. L. Rev. 589 (2013).

Legal scholarship has been increasingly attuned to the role of performance in constructing legal norms. In Staging the Family, Clare Huntington brings this sensitivity to family law. Accordingly to Huntington, people act out the “collective understandings of mother, father, child, and the family itself.” These collective understandings reflect and perpetuate the law’s definition of the family and the rights and responsibilities of its members. Through this mutually reinforcing process, the law’s participation is “normatively narrowing” because it recognizes and thus reinforces only the prevailing, “dominant” images of the family. A consequence, Huntington argues, is that the law has ignored “seismic demographic changes in family form” such as nonmarital families, cohabitation, same-sex couples, and assisted reproduction. In replicating dominant family forms, the law has also idealized them. By reproducing “[o]verwhelmingly positive images of the family,” Huntington writes, the law has approached child sexual abuse “as a problem of strangers lurking in the shadows” rather than a problem within families themselves. (P. 595.)

At the root of the law’s conservatism is that it treats the dominant image of the family as the “natural” one. Huntington’s proposed solution is to “decenter ” or “denature” those dominant images. Operationally, this means “recognizing broader social fronts so that no one performance takes precedence over all others” (P. 640), giving “far greater leeway to parties to decide for themselves whether they constitute a family” (P. 641), and, in the child welfare arena, moving away from “set scripts that reinforce dominant images of family.” (P. 644.)

This is an important article. In it, Huntington focuses on the important ways in which people perform family roles in the shadow of the law, are judged and limited by that law, and at the same time reinforce it. While this may seem a familiar point about the social construction of law, surprisingly little recent scholarship has focused on family role performance as a primary vehicle in the legal construction of the family. In any case, the point has not yet seeped deeply into the public’s consciousness. Given the continued resilience of beliefs that family norms are God-given and natural, this point deserves all the attention that it can get.

But what are the normative implications of Huntington’s observations? Here the issue gets more complicated. In the article, Huntington makes two significant moves. First, she suggests that the recognition that laws come from people, not nature, should make decisionmakers more flexible about the options for family formation and open to alternative family forms. Second, she argues that if decisionmakers are flexible about the options, they will accept the more inclusive and progressive family law agenda that she supports.

On the first point, Huntington is right. When the definition and treatment of families must be justified apart from age-old assumptions about what is given by nature or mandated by God, everything is open for debate. When no policy argument can be trumped by an authority that need not answer to reason or argument, more alternatives are possible.

But is it clear that if the link between the current legal conception of the family and nature could be broken, a progressive family law agenda would prevail? This remains to be seen. We cannot be sure that denaturing the family takes us anywhere in particular. If no single state definition of family is the natural one, this leaves the state free to expand, or limit, the definition in any direction—toward the most restrictive, two-parent married heterosexual family, as well toward the more diverse, modern families Huntington wishes the state to recognize. What kinds of families the state will recognize has depended, and will continue to depend, upon the state’s values and priorities, even as the justifications change. As we have seen, especially in the abortion arena, these values and priorities can waver back and forth; they do not evolve in one single, progressive direction. To the extent that individuals “perform” their family roles in ever more non-conforming ways, these performances may well influence the state, but they can also create perceived “excesses” to which the state may respond with disapproval.

It seems to me that denaturing the family leads to Huntington’s more progressive family law policies only if, once the concept of the natural is abandoned, the family goals and policies that make sense to Huntington are also the ones that make sense to state decisionmakers. I hope they do. The hard work continues.

 
 

Labor Protection Parity for Au Pairs

Janie A. Chuang, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, 36 Harv. J.L. & Gender 269 (2013).

What comes to mind when you hear the term “au pair”? If you’re like me, you may imagine a young adult from an upper-middle class family going abroad for a year to help care for another family’s children—a kind of student exchange program with some child care duties included as part of the bargain. But as Janie A. Chuang shows in her recent article, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, the au pair program that the U.S. government currently offers is not uncommonly a site of disturbing and exploitative labor practices that look much more like an abusive guest worker program than a cultural exchange. In fact, according to Chuang, the framing of the au pair program as a cultural exchange may actually contribute to the vulnerability of its foreign participants.

As Chuang notes in her article, the au pair concept was initially one of cultural exchange: au pair is a French term meaning “on par with,” and refers to “a European practice of having a young person come to a foreign country to learn the language and experience the culture through immersion in the home life of a host family while assisting with childcare and light housework.” Under the U.S. program, au pairs must be between the ages of 18 and 26. For one to two years, they live with “host families” and provide childcare in exchange for room, board, and a small stipend. Despite the labor provided by au pairs, however, the program is not run under the auspices of the Department of Labor, as are other employment-based visa programs. Instead, they are run under the State Department’s J-1 Exchange Visitor Program, a program that facilitates cultural exchange by providing temporary visits by people such as camp counselors, interns, and academic researchers. Categorizing the work as involving cultural exchange rather than labor allows employers to bypass the step of showing that they could not find a qualified American worker to perform the job.

Although I was well aware of the au pair program before reading Chuang’s article and have known many families who have employed au pairs, I had not realized what a significant role it plays in the provision of child care in the U.S., providing ten percent of all childcare workers annually. I also was surprised to learn that the typical au pair profile has changed: although half of the au pairs who participated in the program are from Western Europe, three of the top five countries represented are Brazil, Colombia, and Mexico. Chuang argues that these demographic changes have “increased the apparent ‘otherness’ of the au pair population through increased racial and cultural differences.”  Most importantly, I did not realize how often au pair host families violate the regulations intended to protect au pairs from unfair labor practices and the structural reasons why au pairs have little recourse when these violations occur.

Chuang persuasively argues that it is the “cultural exchange” rhetoric of the program that makes au pairs so vulnerable. By living with a host family and being treated as “just like one of the family,” au pairs may be expected to work around the clock, not just the 45-hour-per-week limit imposed by the regulations. They are often asked to get up multiple times in the night to feed a baby, asked to do additional child-care and cleaning during their off times, and sometimes end up putting in 100-hour weeks. Because they are “one of the family,” these additional tasks are frequently understood as stemming from loyalty or love, not coercion. Were they paid for this additional work, many au pairs would be owed thousands of dollars of overtime wages. They are unable to claim these wages, however, because by working over the 45-hour-per-week limit, they have violated the terms of their visas.

Perhaps the most disturbing observation Chuang makes is that, by outsourcing the au pair program’s implementation to “sponsor” agencies, the State Department exacerbates the power asymmetry between au pairs and their employers. If an au pair or a host family complains to the sponsoring agency and requests a “rematch,” the agency has complete discretion to decide whether to rematch the au pair with a new employer or “terminate” the au pair’s employment instead, which will also terminate his or her visa status. The sponsoring agency also has the discretion to refuse to rematch the host family, but powerful market forces discourage agencies from terminating the employer. Agencies’ main revenue streams derive from the placement fees paid by host families, and host families, unlike au pairs, are likely to be repeat customers. The aligned interests of agencies and employers, coupled with the structure of the visa program, create a vast power differential that often makes it difficult for au pairs to challenge exploitative practices. These power asymmetries are disturbingly clear in Chuang’s account of cases in which au pairs who sued their sponsoring agencies after being sexually assaulted by their “host fathers” discovered that several previous au pairs had complained to the agencies, which simply “rematched” the host families with new, unwitting victims.

Chuang’s article offers a devastating critique of a practice that has been largely absent from the literature on labor exploitation. She shows that the notion of “cultural exchange,” used to exempt the au pair program from compliance with labor law, functions not to au pairs’ advantage but instead puts them in danger of exploitation and abuse. Chuang’s article is not an indictment of hiring in-home domestic care. Indeed, her article is quite sympathetic to the plight of working families who need cost-effective, quality childcare. She shows, however, that the au pair program—as currently run—avoids the dicey problems of administering a guest worker program by giving it a name that obscures its true purpose. This obfuscation, she argues, harms not only au pairs, but domestic workers in general, whose market value is undercut by the existence of a program that provides childcare at low cost with virtually no oversight.

The issue of how to provide quality, low-cost childcare to middle class families without exploiting childcare workers is sensitive and politically fraught. Professor Chuang’s article takes on one piece of the puzzle, showing that calling a guest worker program a “cultural exchange” does not inoculate its participants from exploitation but, in fact, has institutional consequences that cause harm to domestic workers as a group.

 
 

The Costs of Imprisoning Nonpaying Parents

Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. of Gender, Race & Justice 617 (2012), available at SSRN.

There are well-known problems with child support, the court-ordered financial obligations that non-custodial parents—whether divorced or separated from the other parent, or never married to that parent—owe to custodial parents for the care of the children. It has been long documented that such support awards are often too low, and are far too frequently under-paid or not paid at all. Over the last few decades, a panoply of federal, state, and interstate laws and procedures have been created to try to increase the enforcement of support awards and to increase the amount of money reaching children and their caregivers. By most accounts, these efforts have been successful, at least to some degree. However, legal reforms often have unintended consequences, and, as often as not, these negative consequences often affect groups that are already disadvantaged. As Tonya Brito explains in her important article, Fathers Behind Bars, these negative consequences are happening with enforcement measures for child support, especially the use of incarceration for non-payment.

In some states, those in prison for non-payment of support make up a significant portion of the jail population. This is perhaps not surprising. Imprisoned parents (usually, but not always, fathers) often are ensnared in a cycle in which they are incarcerated because they cannot earn money to pay off their obligations; their incarceration record hinders their employment opportunities after incarceration, placing them in the unenviable position of risking additional imprisonment because they are still unable to pay off their support obligations. To illustrate this troubling cycle, Brito focuses on the story of Michael Turner, who had been in prison six times since 2005 for nonpayment of child support.

As Brito points out, more affluent non-custodial parents, who can pay off their indebtedness but have (for whatever reason) chosen not to, rarely end up in prison. Instead, these parents merely have the back-due amounts garnished from their wages or their tax refunds. Even when these parents face criminal or civil contempt actions for non-payment, they are more likely to avoid prison because they can afford to hire good lawyers.

What gets lost in the rhetoric of child support enforcement orders against “deadbeat dads” is that a significant portion of child support obligors are unlikely to ever pay their indebtedness, either because they are in prison, they are disabled, they cannot find work, they have trouble keeping their jobs, or the jobs they can get do not pay enough. As Brito reports, many of these poor parents have been given support obligations they cannot afford, either because states have mandatory minimum obligations regardless of the obligor’s ability to pay; because the courts may have imposed large retroactive support obligations; because obligors, for various reasons, have failed to participate in the process and are then subject to default judgments; or because courts have imputed income to obligors, concluding—sometimes without warrant—that those parents could be earning significantly more money than they currently do.

Brito’s appropriate concern is that the whole child support enforcement process has become too focused on reimbursing the state for its benefit payments and too little concerned with getting more resources to poor families. Where a custodial parent has received support payments from the state, child support payments by the non-custodial parent go to the state directly, as most states do not allow any “pass through” to the custodial parent. Brito would have support orders for low-income parents turn on an individualized assessment of ability to pay, greater job-related support for low-income parents, and greater public responsibility for helping the children of lower-income families.

The argument throughout the paper is consistently sensible and well-grounded in policy arguments and empirical research. What is sad is how hard it is to be optimistic that her suggested reforms, or anything like them, will be enacted widely—a pessimism that Brito seems to share. Concern for the poor is at an all-time low on the political agendas of both parties. Further, in times of great state and federal budgetary stress, it will be hard to gain momentum for proposals that would increase costs and take revenue away, especially when the immediate beneficiaries would be portrayed as noncustodial parents who are not making their support payments because of incarceration or unemployment. However, if even just one jurisdiction would take Brito’s approach, we all might discover, as Brito predicts, that the costs saved from unnecessary incarceration may make up for any additional costs elsewhere, and the longer-term benefits to low-income families and their children, and eventually to society as a whole, would be substantial.

 
 

Domestic Partnership Before Same-Sex Marriage

Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, 102 Cal. L. Rev. (forthcoming 2014), available at SSRN.

The left critique of the marriage equality movement has raised important questions about the privileging of marriage in our society and whether the push for same-sex marriage reinforces the second-class status of nonmarital (and nonintimate) relationships. This critique is invaluable because it presses us to focus on what should be the ultimate objective behind the current push to gain marital rights for same-sex couples: The end goal should be to encourage society and the state to recognize, support, and value many different types of familial and personal relationships. I view same-sex marriage not as an end in-and-of-itself, but as a means for having broader (and more important) debates over the role of gender, biology, and marital status in legally recognizing and supporting relationships between adults and between adults and children.

There is much to the left critique of same-sex marriage, therefore, that I value and respect. However, there is one aspect of that critique, related to the push for the legal recognition of relationships before the age of same-sex marriage, about which I have always been skeptical. Some critics have claimed that at the time marriage equality became the LGBT rights movement’s most important goal starting around the mid-1990s, there were well-organized efforts under way in different parts of the country aimed at reducing the importance of marriage, primarily by demanding the enactment of domestic partnership laws. These critics have claimed that if it had not been for the marriage equality movement, the early efforts to promote alternatives to marriage would have borne fruit, to the point where marriage today would be less central to the distribution of rights and benefits.

In his forthcoming article, Professor Douglas NeJaime looks closely at the relationship-recognition advocacy in California during the 1980s and 1990s. Through interviews with some of the participants, reviews of primary sources (including a plethora of task force reports), and analyses of contemporaneous media stories, NeJaime provides us with a rich account of the arguments made on behalf of the recognition of same-sex relationships before the issue of marriage exploded onto the national scene. NeJaime’s findings complicate the simple dichotomy between pre-marriage relationship-recognition advocacy and marriage equality advocacy. NeJaime shows how LGBT rights activists in California, prior to the mid-1990s, consistently used the government’s failure to recognize same-sex relationships as marital as a main justification for demanding that same-sex couples be given the opportunity to register as domestic partners. NeJaime also shows how activists repeatedly analogized between committed same-sex relationships and marital heterosexual ones.

The evidence uncovered by NeJaime shows that “LGBT work outside of marriage in significant ways built, rather than opposed, the case for marriage that we see today.” (P. 5.) Advocates used marriage as the reference point to try to gain acceptance for domestic partnership regimes: “To gain support for nonmarital rights and benefits, advocates cast same-sex relationships as marriage-like and built domestic partnership in reference to marriage, thus reinscribing—rather than resisting—the centrality of marriage.” (P. 3.)

The article’s contribution, however, does not end there. NeJaime also astutely notes that the historical record in California shows how domestic partnership advocacy promoted an evolving understanding of marriage, one that was less “rooted in gender complementarity, procreative sex, and biological parenting.” (P. 84.) This alternative view of marriage emphasized the romantic affiliation, emotional commitment, and economic interdependence of spouses. By defending this alternative understanding of marriage, domestic partnership advocates not only paved the way for same-sex marriage, but also contributed to modifying the contours of marriage more generally.

None of this undermines the normative component of the criticisms raised by many feminists and queer theorists of the institution of marriage and of the ways in which the LGBT rights movement has pushed for the recognition of same-sex relationships as marital. But it is important to get our history right. As NeJaime shows, there was no clear divide between the advocacy that preceded the hard push for same-sex marriage and what came afterwards. This is a story of continuity rather than of paradigm shifts.

It is unrealistic, given marriage’s hegemony in matters related to relationship recognition, that the institution will go quietly into the night. Nonetheless, it seems reasonable to believe that an important first step in reducing that hegemony is to try to make the institution less hierarchical and less gender-centric. These inclusionary changes to the contours of marriage will hopefully lead to additional explorations of how to further expand state recognition and support for nonmarital and nonintimate relationships. It behooves those who share this goal not to look back with rose-tinted glasses to the days before the push for same-sex marriage supposedly derailed the quest for nonmarital forms of recognition. Instead, we need to develop smart and focused advocacy strategies that will build on the successes of the marriage equality movement to gain legal recognition and protection for a broader array of relationships, including nonmarital and nonintimate ones.

 
 

Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women

Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012).

Dorothy Roberts has previously written about the impact of widespread incarceration on black families, including the damage to social networks, the distortion of social norms, and the destruction of social citizenship. She has also written extensively about the child welfare system’s injuries to African-American families. In her latest article, Prison, Foster Care and the Systemic Punishment of Black Mothers, Roberts weaves together these two systems and analyzes how they intersect and converge, not only in the lives of African-American families, but particularly in the lives of poor black mothers. Roberts extends her analysis to show how the two systems naturalize social inequality and blame black women for the same inequality that the systems create. In doing so, Roberts exposes a pernicious cycle in which stereotypes about black female criminality and irresponsibility legitimate government intervention. The destructive effects of government intervention, in turn, reinforce those stereotypes.

As Roberts explains, other scholars (including Roberts herself) have exposed prisons and the child welfare system as instruments for social management and racial oppression, particular in African-American communities. Sociologist Loic Waquant, for example, includes mass incarceration within the long line of “peculiar institutions” that have subordinated African Americans, including slavery, Jim Crow, and urban ghettos.1 And legal scholar Michelle Alexander has argued that the mass incarceration of African-Americans functions like a modern day Jim Crow caste system by permanently excluding a large percentage of the African-American community from mainstream social and economic realms.2 While recognizing the importance of this scholarship, Roberts explains that it overlooks incarcerated women. This oversight is unfortunate, as the population of black women incarcerated for drug offenses exploded by 828% from 1986 to 1991.

But it is not just criminal justice scholarship that has overlooked the plight of black women. The same is true, Roberts argues, of feminist scholarship, which has focused on the effects of welfare on women, but has been less attentive to the role of the public child welfare system on poor mothers’ ability to care for their own children. In this article, Roberts remedies this oversight and identifies the connections between these two systems. Using government statistics and reports, she shows how the interactions of the prison system and the child welfare system results in the massive removal of children from black mothers, choosing to punish black mothers by severing their familial ties rather than addressing the root causes of their poverty. Federal legislation compounds the injury by shifting support for children from public assistance to often-elusive private employment, or even to adoptive families.

Roberts thus makes two novel and substantial contributions to antiracist and feminist scholarship: she extends the discourse about mass incarceration and the prison system’s role in maintaining racial inequality to focus specifically on black women, and she analyzes how the prison system and the child welfare system intersect to punish black mothers because they are black and because they are women. Roberts poignantly names this intersection a “system of interlocking oppressions.” Since black women suffer the combined effects of racism and sexism, they have experiences and suffer injuries that are different from those of white women and black men. The systems create conditions that uniquely injure black women in two fundamental ways: by political choices to fund punitive instead of supportive programs, and by the discretionary actions and perspectives of decision-makers that are fueled by destructive stereotypes of black women as irresponsible “welfare queens”—sexually promiscuous, carelessly prolific of unwanted offspring, and unfit to raise children.

As Roberts explains, punitive political choices include treating allegations of public-benefits fraud as criminal matters rather than civil infractions, criminalizing drug addiction, and focusing resources on the termination of parental rights and adoption rather than the reunification of poor black mothers with their children. The criminalization of black women, in effect, pushes women into the prison system, which then works with the child welfare system to destroy family relationships. Take, for example, the case of children born to women who are incarcerated. Immediately after delivery, the vast majority of states automatically place their newborns in foster care; federal law encourages the termination of their parental rights; and the requirements imposed by child protective services are often virtually impossible to comply with, given the frequent conflict between prison policies and those of child welfare systems. Despite these manifest difficulties, child welfare authorities may view a mother’s failure to visit and communicate with her child as abandonment and grounds for terminating parental rights. The remote locations of most prisons, the cost of travel, and inadequate government support for relatives for childcare exacerbates the problem and decreases the likelihood that black mothers will be able to overcome the odds and maintain healthy relationships with their children. Finally, when mothers are released, post-prison collateral penalties make it difficult to maintain the parent-child relationship. These collateral penalties include federal and state laws that deny drug offenders public benefits, housing, education and job opportunities, and that bar individuals with criminal records from certain employment. Without a job or place to live, women can find it very difficult to meet the requirements of child welfare agencies and thus risk the termination of their parental rights.

Critically, Roberts makes clear that even outside of its intersection with the prison system, the child welfare system has evolved over time into one that is designed to punish black mothers. Indeed, as the system began to serve fewer white children and more children of color, state and federal governments made a choice to spend more money on out-of-home care and less on in-home services. As Roberts has extensively discussed throughout her scholarship, the system responded to an increasingly black female clientele by reducing services to families while intensifying its punitive functions. In effect, the mission of child welfare changed from protecting children from social disadvantages stemming from poverty and racial discrimination to protecting children from purported maltreatment at the hands of their mothers.

Roberts is quick to note that the damage that comes from attributing poor black families’ hardships to maternal deficits is dangerous. This practice obscures the systemic causes of these hardships, devalues black family bonds, and, as Roberts makes clear, “prescribes foster care in place of social change and services.” The result is that black children are unnecessarily separated from their mothers and that white, middle-class and affluent parents can ignore the injustice of the system by believing the false narratives about poor black mothers. The act of blaming black mothers is particularly insidious because it justifies unnecessary state intrusion into the family and because it allows privileged families, who otherwise might advocate for change, to ignore the injustice of the system.

Ultimately, Roberts believes that the state’s role in assisting families should be much greater, and furthermore, that the overrepresentation of black children in foster care results from racial, class, and gender inequities in U.S. society and child welfare practices. The solution to maternal incarceration, Roberts suggests, is family support and reunification, not permanent disruptions. Her perspective is not unopposed by feminists or child protection experts. Roberts’ article is a profoundly important one in an ongoing debate about a child welfare system that is in crisis. The other side of the debate is possibly best represented by Harvard Law School Professor Elizabeth Bartholet, who begins with the premise that current practice fails to protect children from abuse and neglect, and thus, recommends an aggressive policy of family intervention. The premise of Bartholet’s book, Nobody’s Children,3 is that child welfare policy is flawed because, notwithstanding our best efforts, family preservation has proved a futile endeavor. It is society’s commitment to “blood bias,” according to Bartholet, that keeps us focused on family preservation to the detriment of the lives and well-being of children. Bartholet, consequently, strongly supports federal legislation that makes it easier to terminate parental rights, speeds up the timeframe for the termination of parental rights, and provides states financial incentives for terminating parental rights in the process of freeing children for adoption.

In addition to continuing the debate about how to repair a broken child welfare system, Roberts fundamentally challenges the existing discourse by exploring how black women are situated both in the discourse of mass incarceration and child welfare and how race, gender and class form the backdrop against which the systems intersect. In doing so, the article breaks the silence for black mothers, who had largely fallen into the gaps of antiracist and feminist discourse. Ultimately, Roberts’ latest article is a must read for family law scholars, gender scholars, children’s rights scholars, and for anyone interested in the structural and political dimensions of race, gender and class, as it has important implications not only for debates about antisubordination, antiracism, and feminism, but also for the right to family unity and children’s independent rights to be raised with their families and within their culture.



  1. See Loic Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3 Punishment & Soc’y 95 (2001). []
  2. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2011). []
  3. See Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative (1999). []
 
 

Internal Reform of Islamic Family Law through Evolving Standards of…Religion

John Hursh, Advancing Women’s Rights Through Islamic Law: The Example of Morocco, 27 Berkeley J. Gender L. & Just. 252 (2012).

John Hursh’s recent article addresses reform of Islamic family law. This is an area of law that has long been constitutionalized in the Muslim world just as it has in the U.S.–most recently through the same-sex marriage decisions. Hursh explores how changes to family law in Muslim-majority contexts come about through “internal reforms” that may ameliorate certain gender disparities. Hursh is concerned with what we might call “evolving standards” of religion, an understanding of which would facilitate contextually salient, and therefore legitimate, reforms to Islamic family law codes. In other words, internal reforms to Islamic family law arise through shifting social-religious mores–which may, in legal terms, be thought of as an analog to American Eighth Amendment jurisprudence’s “evolving standards of decency.”1

His study comes at important time, when Egypt, Tunisia, and other post-uprising countries seek to create or reform family law and other state laws on the basis of Islamic law. Hursh emphasizes that, based on recent reform efforts elsewhere in the region, such religiously inflected legal systems need not be static or closed to reform. Namely, Hursh highlights possibilities and limitations for religiously informed law reform based on recent changes to the family law code in Morocco.

Joining other scholars and many policy organizations, Hursh describes the 2004 reforms to the Moroccan Personal Status Law (Mudawwana) as a successful case study of the use of Islamic law to advance international law and women’s rights norms. Indeed, the 2004 reforms were roundly hailed as meeting the highest standards of both sets of norms. The reforms were notable for meeting the highest standards of Islamic law as well.

In other words, the 2004 reforms were a specimen of progressive laws on both international and Islamic standards. How so? And can meeting international and Islamic standards be replicable? Hursh answers these questions by challenging three major assumptions that these results were neither possible nor replicable and by describing the mechanisms of the 2004 reforms.

Hursh first challenges the assumption that Islamic law is incompatible with international law when it comes to women’s rights. Of course, he acknowledges, women face discrimination all around the world despite international declarations against it (most notably, UDHR and CEDAW). Yet several women’s rights supporters view the status of women’s liberties in Muslim-majority states as especially precarious. For them, Islamic law itself is patriarchal and prevents any sort of reform that would advance women’s rights. But for Hursh, the Moroccan experience proves that conclusion unwarranted. “[N]either Islam nor Shari’a is a monolithic entity,” he says, drawing on Goran Therborn’s observations from his decade-long world study of family: that patriarchy’s persistence is culturally Arab rather than Islamic and results from the failure of secular forces to challenge it. Hursh also references Nusrat Choudhury’s contention that Islamic law can be used to challenge patriarchy rather than reinforce it.2. )) The crux of these discussions is that Islamic law is contested rather than categorical, and accommodates change through evolving standards of cultural-religious mores and legal thought. Hursh’s argument here is analogous to American doctrines like equal protection–where the same institution that read the Constitution to permit a separate-but-equal doctrine (Plessy v. Ferguson) later declared separate to be inherently unequal (Brown v. Board). This reversal occurred not through a change in the legal texts or the court, but through a change in personnel and interpretation in tandem with changed social, cultural and political developments that rendered the old regime untenable. Comparably, for Hursh, reinterpretation of medieval Islamic legal texts regulating sex and gender can support women’s rights just as old interpretations may have undermined them to modern sensibilities. He is careful to provide a caveat: Western-style progressive laws in Muslim-majority countries are by no means inevitable, nor are they always desirable. Rather, one must attend to cultural and religious mores in seeking to make lasting and legitimate changes to existing legal regimes. This, Hursh argues, is exactly what happened in Morocco.

Hursh next challenges the assumption that women lack agency in Muslim contexts. This assumption leads many international actors and commentators to advocate for imposing family law reforms externally through international human rights instruments, without respect to local women’s input. Countering that tendency, Hursh describes women as integral to bringing about Morocco’s 2004 reforms—albeit with the support of the king. Like most post-colonial Muslim countries, Moroccan family law was specifically identified as one of few domains for a significant presence of Islamic law. (Most of Morocco’s other laws were based on the French Civil Code or British laws, or some hybrid of the two.) Following its independence from France and Spain in 1956, the newly installed King Mohammad V codified family law, calling it the Mudawwana (named after the famous legal “Compilation” of Islamic law written in the 8th century by Mālik, eponym of the Mālikī school that Muslims in Morocco largely follow today). Though there have been several attempts to reform the Code, only the last round—the 2004 reforms under King Mohammad VI—made any lasting changes. Notably, Muslim women were a major component of popular agitation leading to reforms, against conservative Islamists who wished to keep the traditional code. In the end, the King convened a commission comprising members of Muslim women’s rights organizations alongside Muslim jurists and secular parliamentarians—instructing the commission to ground any reform on Islamic law justifications. After a lengthy process of negotiations and debate within the commission, the reforms passed. It would not have been possible, Hursh emphasizes, without the role played by women: “[W]hile the Mudawana reforms would not have succeeded without strong support from the king, the work of women’s rights organizations was also imperative to realizing this reform. Combined with the king’s top-down political support, women’s rights organizations created a bottom-up grassroots campaign that laid the foundation for this reform.”3

The third challenged assumption has to do with pragmatics: Whereas many international commentators presume the desirability of pursuing reforms without appeal to Islamic law, Hursh suggests that reforms can only happen with appeal to Islamic law. For him, the Moroccan case demonstrates that law reform in Muslim-majority countries must typically appeal to Islamic law to be acceptable, legitimate, and effective. With a reinterpretation of Islamic law in light of liberal norms of equity, the 2004 reforms included progressive changes in 5 major areas of family law: (1) marriage: whereby the Code removes the traditional guardianship requirement for women to get married, equalizes minimum-marriage ages for men and women, and establishes reciprocal rights and duties for both partners; (2) polygamy: whereby the Code restricts men’s ability to enter into polygamous marriages to instances of necessity, the first wife’s consent, and judicial approval; (3) divorce: whereby the Code restricts men’s unilateral prerogative to divorce, expands women’s ability to expedite divorce  in cases of abuse, and affirms the violation of marital contractual conditions as grounds for divorce; (4) child custody: whereby the Code allows women to retain custody of children even when they remarry, reforms child support provisions, and provides for fast-track resolution of child support issues; and (5) inheritance: whereby the Code allows grandchildren to inherit, establishes legal recognition for children born out of wedlock, and provides for the use of DNA evidence to resolve paternity disputes. All of these adjustments, says Hursh, relied not on international law primarily, but on revised readings of precedents in Islamic law in light of both evolving local norms and international law. Morocco had long been a member of the most protective women’s and children’s rights covenants in international law—ICCPR, ICESCR, CRC, CEDAW, and DEVAW—but it entered reservations for each, stating that provisions of those covenants could not conflict with the provisions of Islamic law or the Mudawwana.  After it reformed the Mudawwana, however, Morocco withdrew its reservations to the international treaties, as the reservations had ceased to have meaning or to present a conflict.

By contrast to the reforms driven by reinterpretation of Islamic law, Hursh identifies purely secular reform—that is, legal change without reference to Islamic law—as unlikely to succeed given the extent to which Islam serves as a marker of cultural identity, national pride, and legitimacy. Pragmatically too, Islamic law justifications are popularly acceptable and often democratically desired, and the legislative process is dependent on the king, who has already announced support for sharīʿa.

All in all, Hursh has written a useful contribution to the study of contemporary Islamic family law well worth reading. His study tracks relevant changes in an important episode of modern family law in the Muslim world. It is an example of what M. Qasim Zaman has presented as methods of Islamic “internal critique” in his book Modern Islamic Thought in a Radical Age: Religious Authority and Internal Criticism (Cambridge University Press, 2012). Moreover, it joins a growing chorus of other scholars and lawyers arguing for culturally and religious relevant reform efforts of Islamic family law—including, for instance, Madhavi Sunder4 and Nusrat Choudhury.5 By challenging assumptions about Islamic law vis-à-vis international law, and possibilities for using each as an effective vehicle for reform, Hursh makes compelling arguments about how the starting point for legal analysis of family law may closely inform legal outcomes and possibilities for legal change.



  1. The U.S. Supreme Court first elaborated the “evolving standards of decency” framework in its U.S. Eighth Amendment jurisprudence in Trop v. Dulles, 356 U.S. 86, 101 (1958), to define and narrow the scope of “cruel and unusual punishment”; it most recently applied that standard to limit capital punishment and life sentencing of juveniles, respectively, in Roper v. Simmons, 543 U.S. 551, 571 (2005), and Graham v. Florida, 560 U.S. __, 130 S. Ct. 2011, 2017 (2010). “Evolving standards of religion” refers to a consistent theme in the author’s article that core Islamic standards persist, but their range of application may also expand and contract in reform that involves interpretation rather than replacement of foundational norms and language. []
  2. P. 258 (citing Goran Therborn, Between Sex and Power: Family in the World, 1900-2000, 116 (2004); Nusrat Choudhury, Constrained Spaces for Islamic Feminism: Women’s Rights and the 2004 Constitution of Afghanistan, 19 Yale J. L. & Feminism 155 (2007 []
  3. P. 262 (citations omitted.) []
  4. Piercing the Veil, 112 Yale L. J. 1399-14722 (2003) (on Muslim women using Islam-based reform strategies in India). []
  5. Constrained Spaces for Islamic Feminism, 19 Yale J. L. & Feminism 155-200 (2007) (on using Islamic law to advocate for reform in Afghanistan). []