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). []

Elderlaw As Family Law

Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (Harvard University Press 2012).

How do American law and culture accommodate the fact that old age is almost everyone’s fate, and that—though we know for sure that it ends at last in death—its course and the kinds of dependency it brings are so profoundly unpredictable and often categorically intense?  In this brilliant, grimly humane page-turner of a book, Hendrik Hartog lays out three different historical periods marked by very different answers to this question.

Before the rise of a market economy in the middle of the nineteenth century, old people were cared for and died in their households, surrounded and aided by relatives and, if they had them, servants or slaves.  But as the master/servant relation was replaced by employment in the rapidly industrializing private sphere, and as the household nuclearized into the husband/wife, parent/child family, this ready-to-hand supply of helpers dwindled, often disappearing entirely.  In response to these changes, old people who had property started promising to bequeath it to children, other family members, and even housekeepers in exchange for their staying at home and devoting themselves to filling what we would now call the care gap.

Using New Jersey court records, Hartog’s archival research traces this large social transformation through a small legal shift: people started suing for specific enforcement of these promises, framing them as contracts no different from those typical of the marketplace, and courts started enjoining these inheritances or, in cases with weaker facts, granting unpaid wages payable from the decedent’s estate.  Finally, in post-World-War-II America, these lawsuits disappear from the archive as care for the old and the dying became a commodity paid for by social security programs, pensions, and private savings in the now-burgeoning care industrial complex.

By far the bulk of Someday focuses on the century-long middle chapter of this story, running roughly from 1850 to 1950.  The book’s first part takes the point of view of the old person, desperate to avoid solitude and the poor house and advised on all sides to retain control over property as the only way to gain any leverage over the young.  The family dramas that occupy these chapters are so vividly told, in such loving detail, that the chapters seem to be punctuated with perfect little short stories of human misery.  The second part of the book tells the story of the law, starting with the advice a potential plaintiff would get under the main theories of recovery, and then laying out in transfixing detail how the caselaw evolved to manage, catch up with, and even drive social change.

By the time Hartog reaches this stage of his story, he has built up so much narrative detail, so much social history, and so much law that he is able to trace minute but enduringly important sub-plots: the ways in which gender expectations for sons and daughters could skew decisions about who was doing “extraordinary” work in the home; the ways in which family members sought to intensify status relations that had no legal backing using the tools of contract and property law; the ways in which nonfamily members entered into the care world ever so slowly, bringing contract even deeper into the home.  It is so fascinating to watch the old turn from spouses to children to nieces to stepsons to housekeepers for care, and to see how the legal rules that these relationships cue up shifted from those of traditional family law to those of the market. When is a housekeeper like a daughter?  When is a daughter like a housekeeper?  Throughout, large legal and social transformations appear in the form of highly specific institutional shifts.  For instance, the unpaid-wage cases boosted the rise of nursing as a profession and of the legal distinction between housework and care work that even today marks efforts to regularize domestic labor.  Equally intelligible as employment law and as family law, these cases persistently belie the idea, being cemented into American legal ideology during this very period,1 that the family and its law were the opposite of the market and the bodies of law peculiar to it, contract and property.

Hartog never loses sight of a large, highly paradoxical dynamic, in which the family, the market and the state have continually morphed around each other in response to changing social strategies for meeting human needs for care and freedom.  Every chapter refutes the dichotomy embedded in Henry Sumner Maine’s motto “the movement of the progressive societies has … been from Status to Contract.”2  Instead, as Hartog demonstrates again and again, liberal individualism and the market economy depend continually on some allocation of dependency needs among the market itself, the family and the state. 

A second major theme of the book is the problem of legal informality.  Old people promised to bequeath their farms and later their homes in exchange for care—but everyone seems to have known perfectly well that testamentary freedom meant that the elderly could die without performing their side of the bargain.  How many caregivers simply acquiesced when they did?  We will never know.  But courts confronted with the ones who sued could invoke the doctrine of partial performance to convert the promise into a binding contract, override the Statute of Frauds, and force the inheritance.  Hartog shows courts making diametrically opposite decisions on the basis of the same matrix of rules and similar facts, presenting a deeply ambivalent attitude about what to do when the need for formality collided with the need for substantive justice, when the moral complexity of the cases beggared the impulse for predictability.

To take another example that vexes family law today: what to do about informal family relationships that resemble formal ones in every other respect?  This theme is threaded throughout Someday, but we can focus on Hartog’s fascinating substory about informal children.  As indentured servitude, slavery and child labor became unthinkable, up came the practice of informal adoption—families bringing distant relatives or even complete strangers into their homes when they were infants or children and hoping that they would remain to care for the old and dying.  When they did, and were excluded from wills, and sued—what were they?  Were they children?  Did the onset of legal adoption make saying yes to that question harder or easier?  Were they lucky beneficiaries with no equitable claim on further largess?  Were they employees?  Anyone concerned about the policy problems we face in family law today, as nonmarital cohabitation and childbearing begin to compete demographically with their marital counterparts, will find this and many related strands of Hartog’s narrative endlessly fascinating.

Finally, the Epilogue produces a succinct account of the massive transformations that produced old age as Americans live it now: public law, public welfare, and individual savings meant and often required to be spent down to nothing, have almost evanesced the direct responsibility of family members, making them at most the managers of their elders’ care in commercial establishments.  And yet, for all the grandeur of these shifts, Hartog concludes with a “reversal” of the account, tallying all the ways in which, even in this diametrically new world, the same anxieties, fears, loves, resentments and regrets permeate the lives of the dying old and their family members today as he found in testimony before New Jersey’s equity courts in the 1880s.

Hartog tells us on his first page that he researched this book while his own mother was waning in a retirement community; the book’s last words dedicate it to his grandchildren.  He put himself into the story, and so I found it impossible to read this book without thinking of my own precarious place on the great conveyor belt of life.  This is family law writing at its best: legally subtle, socially precise, theoretically comprehensive, steadily engaging the human capacity to form productive, life-affirming, loving associations and to crash them in bitter conflicts, and fully exposed to the hard, brute facts of human existence.

  1. For my own account of this process, see Janet Halley, “What is Family Law?: A Genealogy, Part I”, 23 Yale Journal of Law & the Humanities 1 (2011). []
  2. Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas 170 (1861). []

(Same) Sex and the City

Luke A. Boso, Urban Bias, Rural Sexual Minorities, and the Courts, 60 UCLA L. Rev. 562 (2013), available at SSRN.

Places of transformation and constant activity, cities have always loomed large in the cultural imagination.  Clark Kent left the cornfields of Smallville for Metropolis, and in the process, discovered his true identity as Superman.  Carrie Bradshaw fled to New York City, where she discovered Manolo Blahniks and (after some false starts) true love.  The tale of escape from rural life to urban opportunity is not merely one that plays out in fantasies.  Instead, such migration accounts for large-scale demographic shifts in American society.  In the first half of the twentieth century, African Americans fled the racism and parochialism of small Southern towns for the (relative) freedom and opportunity of Northern and Western cities.

More recently, cities have figured prominently as sites of LGBT identification and acceptance.  Consider the popular “It Gets Better” campaign, which aims to combat the feelings of isolation and despair that LGBT youth often face.  Premised on the idea that coming out and assimilating into a welcoming LGBT community are integral for a happy adulthood, It Gets Better often assumes that LGBT persons seeking a “life worth living” will do so in the cosmopolitan confines of an urban metropolis.  Indeed, in one ad, Michael Bloomberg, the mayor of New York City, rolls out the welcome mat for LGBT youth.  “New York,” he advises, “has always been the place where anyone can go and be who they are supposed to be, regardless of ethnicity, religion, gender, or sexual identity.”

It is not surprising that cities play such a prominent role in the It Gets Better campaign.  From San Francisco and West Hollywood to Atlanta and New York City’s Chelsea neighborhood, gay life and culture seems synonymous with urban living.  And the presence of mainstream LGBT rights groups in these urban centers also makes clear the importance of the urban in the legal construction of gay life and culture.  But if gay rights and quotidian life as an LGBT person depends on city living, what about LGBT people who do not live in cities?  How do we reconcile this vision of gay identity with those LGBT persons who lack the financial wherewithal or the desire for metropolitan living?  How do these people fit into the dominant social and legal tropes of gay life?

These are the questions that Luke Boso poses in his excellent article Urban Bias, Rural Sexual Minorities, and the Courts.  As Boso argues, the conventional narrative that privileges gay urbanity is problematic on a number of fronts:  First, it is unduly exclusive, directing attention to those privileged persons with the ability (financial and otherwise) to leave their communities of origin to make their way to a city.  It also presumes that cities are welcoming spaces for gay arrivistes.  It does not account for those who may feel ill-at-ease—or are made to feel ill-at-ease—because of their less urbane manners or their seemingly provincial attachments to religion and family as key sources of emotional support.

Second, though the conventional narrative is essentially one of liberation, it discounts the degree to which city life may not “necessarily liberate poor people or people of color who find race and class hierarchies within gay communities.”  To that end, the insistence on the gay urban narrative elides further discussion of these hierarchies and helps to cultivate an image of gay life and culture that is largely white and affluent.  This portrait, in turn, fuels critiques of the gay community as socially connected, politically powerful, and affluent—the sorts of images that stymie efforts to denominate LGBT status a suspect class entitled to heightened scrutiny in constitutional analysis.

Third, according to Boso, urban bias is not simply the byproduct of mainstream gay culture.  Judges and other decision-makers further entrench urban biases by “internalizing stereotypes about gay people and gay identity and by explicitly approving the belief that sexual minorities do not belong in small towns.”  With this in mind, Boso recounts a number of cases in which judges access the gay urban narrative in ways that penalize rural LGBT people who try to live openly within the confines of their rural settings.  On this account, the gay urban narrative impedes non-urban LGBT folk who must depend on their local courts, rather than grassroots activism and high-level impact litigation, to protect and advance their rights.

There is much to admire about this article.  In drawing attention to the experiences of rural sexual minorities, Boso takes an intersectional approach, considering the ways in which race, class, education, religiosity, and place all play a role in shaping the LGBT experience.  In so doing, he joins scholars like Russell Robinson, who have critiqued the mainstream LGBT rights movement as inattentive to the needs of those LGBT people who fall outside of its white, urban, privileged paradigm of LGBT identity.

But what I most enjoy about this Article is Boso’s subtle critique of the neoliberalist impulse that undergirds the gay urban narrative.  As Boso recounts, coming out and moving to a city where one can become thoroughly assimilated in mainstream gay culture has become an expectation of gay life.  On this account, one cannot passively wait for a happy ending.  In order for it to get better, the onus is on the individual to uproot herself, flee to a city, and immerse herself in the LGBT community.  If she fails to do so—or if she cannot do so—she deserves whatever lackluster existence can be wrung from her provincial setting.

In insisting that the individual gay man or lesbian is exclusively responsible for his or her future happiness, the gay urban narrative echoes neoliberalism’s prioritization of private responsibility over public provision.  But the trouble with neoliberalism is that its emphasis on private responsibility absolves the state of any obligation to provide assistance to individual citizens.  And this is Boso’s point.  The gay urban narrative makes it incumbent on the individual to take responsibility for transforming her life by relocating to a city.  The state is utterly absolved of any duty to provide LGBT people with the tools—anti-discrimination legislation, employment protections, heightened scrutiny for constitutional claims—to live happy and successful lives wherever they are located.  Thus while the gay urban narrative is one that sounds in the register of liberation, it may actually limit efforts to advance LGBT rights on other fronts.

Boso’s challenge to think about gay life beyond the city is incredibly timely.  Gay urban narratives frame the claims in the two same-sex marriage challenges currently pending before the Supreme Court.  Edith Schlain Windsor, the petitioner in United States v. Windsor, recounts coming out in New York City in the 1960s, meeting the woman who would become her wife at a dance in Greenwich Village, and living a happy life together until her wife’s untimely death.  Likewise, Kris Perry and Sandy Stier, the petitioners in Hollingsworth v. Perry, were both raised in non-urban settings—Bakersfield, California and an Iowa farm town—before moving to the Bay Area, where they came out, met, fell in love, and raised a family together.

Boso’s article complicates Windsor and Perry and prompts important questions.  Do these cases —and their trajectory to the high court—depend on an urban setting and the access and privilege available to LGBT persons who reside in metropolitan areas?  Do claims for same-sex marriage serve the needs of LGBT people who do not live in cities?  Does marriage, like the gay urban narrative, simple affirm the idea that gay people are responsible for their own well-being, letting the state off the hook for more meaningful public interventions that would improve gay (and straight) life, whether urban or rural?  The answers to these questions are not obvious, but Boso’s important article provides a useful starting point for a much-needed conversation.


Colonial and Postcolonial Constructions of Family Law

Sylvia Wairimu Kang'ara, Beyond Bed And Bread: Making The African State Through Marriage Law Reform -- Constitutive And Transformative Influences of Anglo-American Legal Thought, 9 Hastings Race & Poverty L. J. 353 (2012), available at Comparative L. Rev.

Western legal regimes tend to characterize family law as a field regulating private relations between adults, as well as between adults and their children and as “the opposite” of both public law and the law of market exchange. During the latter part of the twentieth century, feminists analyzed how the legal treatment of family relations as private amounted to a public endorsement of private coercion.1 More recently, comparative law scholars have begun to study and understand the emergence of family law as a distinct field in western legal thought.2 Over and over again, the emergence of family law, a surprisingly recent phenomenon, is associated with constitutive moments in the making of modern states: from federalism in the U.S. to the construction of nation-states in Europe. Sylvia Wairimu Kang’ara’s Beyond Bed and Bread: Making the African State Through Marriage Law Reform is an important new contribution to this literature, demonstrating the central role that reforming marriages played in the construction of colonial and post-colonial states in the parts of sub-Saharan Africa colonized by Britain.

The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model.  Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition.  Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building.

In this way, Kang’ara shows that, far from being an act with merely moral significance, “defining marriage was an important act of conquest and a corner stone of the market oriented state” that emerged via colonialism. To begin with, under the customary legal system, marriage and communal land tenure were inextricably linked. English common law disrupted this link by disentangling customary marriage law from property law.  Under the common law view, customary marriage was morally repugnant and therefore invalid.  Judges proclaimed communal ownership of property and other resources presumptively valid, but inefficient, and therefore inferior to the common law’s regime of individual property rights. This mass invalidation of customary marriages and communal land tenure had, of course, enormous distributional consequences. In the formal economy, it allowed employers and bureaucrats to ignore rights that the newly introduced commercial law was supposed to award the colonized, such as workers’ compensation claims for wronged workers’ spouses. In the informal economy, it allowed the emergence of newly-entitled heads of households, opportunistically invoking formal property rights to exclude traditional communal rights to resources.

But as Kang’ara shows, this sweeping invalidation of African law became unsustainable when colonial administrators realized that vast swaths of conquered territory would be ungovernable without it. This realization led to a “legal dualism,” with English colonial courts supposedly applying customary law. In marriage law, courts started accepting the possibility of “converting” customary unions into formal, Western-style marriages. The possibility of conversion had significant, unintended distributional consequences. Previously polygamous men now had to choose one formal wife, leaving pauperized polygamous wives in their wake. Jurisdictional conflicts between African courts and colonial courts ensued. Struggles between kin members asserting succession rights on the basis of customary law and newly-minted Christians asserting individual rights over property acquired during marriage intensified.

Kang’ara then tells the story of a dramatic shift in attitude towards customary law, which came about with the advent of socio-legal jurisprudence in the first half of the twentieth century. Rejecting the idea of the inferiority of customary law, Professors Eugene Cotran (1938- ) and Antony Allott (1925-2002) of the School of African and Oriental Studies in London provided what Kang’ara calls the “doctrinal staging” for modern family law in post-colonial, national states. Cotran accomplished the first step, identifying characteristics common to all African customary marriages despite huge fragmentation in marriage practices. Allott further noted that African marriages performed functions such as capital production and investment commonly attributed to English corporate or property law, thus dignifying an institution largely stigmatized in early colonialism. These moves led to the Restatement Project of African customary law (1968), whose main characteristic, according to Kang’ara, was the excavation of individualism within African customary law.  To that end, Cotran classified customary marriage rules as core or peripheral.  A marriage that violated core rules was invalid; one that violated merely peripheral rules was valid.  Consent and capacity to consent were deemed core, while dowry, animal slaughter, and cohabitation were deemed peripheral. Polygamy could be set aside in the Restatement Project not because of its moral repugnance, but because of its supposed lack of economic significance and its value simply as a cultural totem. This classification was, of course, conspicuously close to western ideas about marital validity and the non-economic nature of family relations, but it provided post-colonial courts with an opportunity to expunge customary law “without committing treason against African national pride.”

In all, Kang’ara has drawn a compelling picture of the complex set of legal interactions that led to the building of modern African family law. Far from a coherent customary law that was initially shut out of courts only to become accepted eventually, Kang’ara provides several illustrations of the idiosyncratic legal hybrids that emerged from the interactions of English common law and customary marriages. Moreover, she argues that these hybrids emerged to deal with problems common in liberal legal regimes everywhere, namely, the tensions between individualism and community against the background of a market-driven economy. In the colonial context, individualism was read onto “western” law and community onto African customs, at the same time as common law in the U.S. was reading community onto the family and individualism onto the market. For instance, the initial conversion of customary marriages into Western-type marriages left a legacy of individual property owners borrowing against previously communal property. When borrowers defaulted and their family members tried to protect themselves against foreclosure, courts appealed to the idea of the customary African trust to protect dispossessed family members. Kang’ara astutely observes that these court-created customary trusts in favor of family members were similar in effect to the gradual weakening of titled-based property distribution upon divorce in the United States, through equitable remedies and the eventual adoption of equitable distribution statutes. In the African context, the number of potential losers from a legal insistence on individual rights in marital property was broad. It involved more kin members than the divorcing homemaker in the United States, but the legal mechanism devised to deal with their plight was similar in function.

Kang’ara’s work highlights the central role that disentangling the family from the economy has played in creating market-driven regimes and provides new insights about how this process unfolded in parts of sub-Saharan Africa formerly colonized by Britain. These insights are relevant for comparative family law scholars and theorists of legal pluralism, as well as for law and development scholars. The family and its regulation have been and remain central in the political economy of liberalism. To see this centrality, one needs to go beyond claims of culture and identity and focus instead, as Kang’ara urges, on the profound transformations that liberal regimes demanded of pre-modern households.

The article manifests a somewhat ambivalent relationship to the idea of African customary law as an effect of the colonial encounter rather than a pre-existing system of legal rules. Even though Kang’ara amply demonstrates the invention of “African customary law” from the initial colonial period through the post-colonies, she occasionally seems to imply a clean distinction between a pre-existing customary law and western law.  This is a complex problem deserving further attention.  The importance of the contribution, however, remains unchanged. It provides a valuable window into colonial and post-colonial constructions of family law, highlighting surprising commonalities with parallel processes elsewhere in the western world.

  1. See e.g., Elizabeth M. Schneider, The Violence of Privacy 23 Conn. L. Rev. 973 (1990-1991). []
  2. Janet Halley and Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism—Introduction to the Special Issue on Comparative Family Law 58 Am. J. Comp. Law 753 (2010). []