Caroline Bettinger-Lopez

In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context.  To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world.  As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign [...]]]>

Rachel Rebouché, Comparative Pragmatism, 72 Md. L. Rev. 85 (2012).

Caroline Bettinger-Lopez

In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context.  To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world.  As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.”¹ But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence?  And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice?  Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.

Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights.  While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services.  Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.”  By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights.  Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights.  A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy.  Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.”  While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.”  More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law.

Rebouché sets out to explore “how and why courts and lawyers rely on a particular formulation of comparative law as evidence of modern and universal trends in abortion law reform,” and the consequences of this comparative methodology. She contends that legislative and jurisprudential developments that expand the legal grounds for abortion do not actually correspond with better or more extensive health care services, as evidenced by the U.S. and German examples.  Moreover, she warns against an overly “formalist understanding of comparative constitutional law that makes it difficult to see the consequences and practices, both before and after law reform.”

Instead, Rebouché offers an approach she calls “comparative pragmatism” – that is, “a comparative approach that focuses less on constitutional case law and more on public health concerns.” A focus on availability and accessibility of health care services, both state-supported and private, and on the state’s power to enforce abortion laws, might serve multiple functions: to “elicit solutions that fit with diverse community needs, deter counter-movements against liberalization, … encourage flexible strategies that align with the relative power of the state at issue, [and] contradict the prevalent misconception – particularly abroad – that Roe currently provides U.S. women with abortion on demand.”

Rebouché notes the irony of national courts, especially those in the global South, framing comparative citation to courts and scholars in the global North as exemplary of claims of universal rights. Such a focus, she claims, overlooks or marginalizes extralegal or informal conduct, with important consequences for women’s health: new legislation or court decisions may result in bureaucracy, backlash, and stress on state resources.

Because “the dominant, rights-oriented approach is a model dependent on state implementation,” Rebouché cautions, “the answer to implementation problems will be more law.”  In financially-challenged states, the result may be ample law that has no possibility of practical application.  In such situations, Rebouché offers, informal regimes such as an informal sector for abortion provision could inform legal developments.

I love the premise of Rebouche’s article, and her examination of the abortion law and practice landscape in various countries is fascinating.  While the idea of examining legal realities alongside legal principles makes great sense, I would suggest that we need not overlook or reject a rights-based approach in order to embrace comparative pragmatism.  Indeed, legal standards and progressive change often evolve side-by-side, mutually informing one another. Without an established legal principle to use as a point of departure toward implementation, practical realities can easily change with the political tides. Moreover, I would be interested to see Rebouché further explore how national courts can actually engage in reliable comparative pragmatism. Are there examples of courts that have looked to comparative practice rather than comparative law? If such examples do exist, how do such courts square that inquiry with their understanding of their function as interpreters of the law? Finally, I would be curious to see Rebouché further explore the question of whether advocates’ facilitation of this pragmatic comparative inquiry could ever risk undermining a progressive agenda, and if so, what the ethical implications would be.

Rebouché’s insistence that national courts, and the advocates who submit briefs to those courts, should focus their comparative inquiries on the practical realities of abortion law and practice abroad is a fresh and welcome antidote to overly formalist approaches to comparative law.  Her article is a fascinating and provocative read, useful for family law, constitutional law, and international law scholars alike.

1. The Honorable Margaret H. Marshall, “Wise Parents Do Not Hesitate to Learn From Their Children”: Interpreting State Constitutions in an Age of Global Jurisprudence, 79 N.Y.U. L. Rev. 1633, 1636 (2004).

Clifford Rosky

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States.  This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to [...]]]>

Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012), available at The Williams Institute.

Clifford Rosky

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States.  This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to the California Constitution known as Proposition 8.

After so many years and so many challenges, it has become increasingly difficult to find arguments and angles on this topic that are genuinely novel.  In recent years, it often feels as if the question has been exhausted—as if both sides have already said what is worth saying, and we all are just repeating ourselves, pleading and praying for Justice Kennedy’s vote.

Yet in his recent article, Professor Michael Boucai (Buffalo) manages to stake out a powerful new claim for same-sex marriage—a claim based on homosexual liberty, rather than the equality of lesbian and gay people or the fundamentality of marriage itself.  In the article’s opening sentence, Boucai explains: “This Article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relations and relationships, impermissibly burdening the sexual liberty interest protected under Lawrence v. Texas.”

As Boucai recognizes, his argument from sexual liberty “departs dramatically” from the paradigms of advocacy and scholarship on this subject.  In one case after the next, same-sex couples have claimed that laws against same-sex marriage infringe on the couple’s fundamental right to marry and discriminate on the basis of sexual orientation and sex.  Without gainsaying the validity of these claims, Boucai illustrates that it is not only couples but individuals who are injured by laws against same-sex marriage—in particular, “individuals with open choices about whether and with whom to partner.” Among this “larger class of persons,” Boucai focuses specifically on “bisexuals,” whom he reasons are especially “vulnerable” to marriage’s system of burdens and benefits.

While Boucai’s article is packed densely with valuable observations and insights, his argument seems likely to be remembered for three contributions to the legal academy’s understanding of queer theory, same-sex marriage, and constitutional law.

First, although volumes of commentary have been published on Lawrence v. Texas, Boucai adds an eloquent reminder of what the opinion actually held. In Lawrence, the Supreme Court invalidated a Texas law against same-sex sodomy under the Due Process Clause of the Fourteenth Amendment.  Although the Court’s opinion has been closely analyzed by a long list of judges, advocates, and scholars, Boucai wryly observes that much of this analysis ignores the holding itself. Lawrence did not, Boucai insists, vindicate the equality of lesbian and gay people, but the liberty of all persons to “choose” homosexual relations and relationships.

Boucai’s reading of Lawrence offers a useful corrective to those judges, advocates, and scholars who have focused too resolutely on the opinion’s oblique references to the links between the Equal Protection Clause and the Due Process Clause, and the tendency of sodomy laws to “demean” or “stigmatize” a class of persons who the Court only occasionally refers to as “homosexual.”  Although Justice O’Connor analyzed the law in these terms—as a law targeting homosexual status under the Equal Protection Clause, rather than homosexual conduct under the Due Process Clause—Boucai astutely reminds us that her opinion was not joined by a single Justice in Lawrence itself.

In Boucai’s terms, Lawrence is ultimately about more than just the freedom to choose homosexual relations, or even homosexual relationships; above all, the decision protects “the exercise of conscience that mediates between an actor and her acts.”  Drawing on the work of Jed Rubenfeld and Carl Schneider, Boucai argues that laws against same-sex marriage have a “disciplinary” or “channelling” effect.  By holding out a dizzying array of sticks and carrots, such laws prod and lure individuals into heterosexual pairings.

Next, Boucai identifies the bisexual as the paradigm of this channeling dynamic—the most obvious example of an individual who might be seduced by marriage’s distribution of privileges and penalties. Ironically, however, Boucai demonstrates that gay-rights advocates have systematically occluded bisexuality and bisexuals from constitutional challenges to same-sex marriage bans. Especially telling is his dissection of Ted Olsen’s direct examination of Sandy Stier, one of the plaintiffs in the Prop 8 litigation, on the subject of her heterosexual past.  As Boucai explains, “Olson took pains to show that his client Sandy Stier, who previously had been married to a man, really is and always was a lesbian”—even before she knew it herself.  With meticulous care, Olsen prompts Stier to testify , “I was not in love with my husband, no” to stave off the charge that her sexual orientation is “this and then it’s that and it could be this again.”

Using this erasure as a segue back into his constitutional analysis, Boucai concludes by identifying three reasons that advocates have so carefully excluded any evidence of bisexuality from the litigation of same-sex marriage claims.  As Boucai frankly admits, the existence of bisexuality would confound three claims that are commonly made in constitutional challenges to same-sex marriage bans: (1) the claim that laws against same-sex marriage target homosexual status, (2) the claim that they negate the identity of lesbian and gay people, and (3) the claim that they target an immutable trait.

For a few moments, Boucai gamely suggests that bisexuality has a place within this constitutional framework. In the end, however, he largely rejects each of these claims as regressive and fruitless—so much unwanted baggage from the same-sex marriage quest.  In Boucai’s terms, these traditional challenges to same-sex marriage bans smack of the “politics of containment,” insofar as they entertain the premise that the state may legitimately seek to deter homosexual relations and relationships:  “All three arguments implicitly concede the deterrence of homosexuality is bad because it is useless, not because it is wrong.” It is this premise, above all, that is the target of Boucai’s argument.  In his view, “Lawrence affirms [that] containing ‘the spread of homosexuality’ is no longer a viable governmental purpose.”

In this respect, Boucai’s article stands out as a rare articulation of what queer theorist Lisa Duggan famously termed a “no promo hetero” argument—a claim that both depends on and transforms the liberal discourse of disestablishment, rather than the language of fixed minorities and fundamental rights.¹  In Boucai’s terms, the liberty protected by Lawrence is not only universal, but “universalizing.” By emphasizing “the difference between liberating homosexuals and liberating homosexuality,” Boucai affirms that antigay policy rests upon “an immeasurable and often inchoate homosexual potential in many ostensible heterosexuals.”  In conclusion, Boucai notes that his argument “need not be limited to same-sex marriage,” and indeed, “provides a conceptual basis for rethinking a range of issues, . . . only some of which rank . . . on the gay movement’s agenda.”  If this is a hint of things to come, we have much to anticipate from Boucai’s remarkable fusion of queer theory and constitutional law.

1. Cf. Alice Ristroph and Melissa Murray, Disestablishing the Family, 119 Yale L. J. 1236 (2009); David B. Cruz, Disestablishing Sex and Gender, 90 Cal. L. Rev. 997 (2002).

Darren Rosenblum

For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics.  Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.”  Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible.  Widespread allegations of “recruiting” young people led advocates [...]]]>

Clifford Rosky, Fear of the Queer Child, 61 Buff. L. Rev. (forthcoming 2013), available at SSRN.

Darren Rosenblum

For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics.  Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.”  Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible.  Widespread allegations of “recruiting” young people led advocates to avoid discussions of queer influences on children.  As a gay youth activist in the mid-1980s, I remember the resistance and anxiety around gay youth issues within the national and local gay rights movement.  Even in the ensuing decades, advocates’ references to gay and lesbian parents defensively emphasized similarities to straight parenting.  Only recently have we begun to consider differences between queer and straight parents without a heterosexist lens.  Pop culture, from “Modern Family” to the “New Normal,” has recently given us a window for reconsideration, albeit one rife with bubble gum stereotypes.

Cliff Rosky avoids such traps with his latest work, Fear of the Queer Child.  There, he unpacks the long history of heterosexism in parenting and delineates its remnants.  In his previous work, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, Rosky assessed judicial treatment of gay and lesbian parents though gender-differentiated stereotypes in custody and visitation cases.  There, his deft articulation of the interrelationship between sexual identity and gender stereotypes in the parenting context stood out as especially new.  His assertion was that gender – of the parent, the child and the judge – plays a dominant role in the elaboration of homophobic and heterosexist stereotypes about gay and lesbian parents.  The proof he deployed confirmed my long-held belief in the centrality of gender to heterosexism.  In particular, he found that “recruitment” was a charge levied against parents of sons, and explored how the male judges were more likely to adhere to stereotypes about gay and lesbian parents.  Like Father, Like Son avoided a facile identitarianism and did not get stuck in a lengthy refutation.  Fear of the Queer Child holds even more potential to affirm the positive and yes, different, nature of queer parenting.

Rosky extricates heterosexism’s genealogy with regard to children, a task necessary to dispose of this baggage.  The fear of the queer child is “the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual behaviors, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender.”  Rosky draws on multiple historical periods to assert the presumed “contagion” of sodomy and the concomitant fear of initiation of children into homosexuality.  Fear drove the purge of homosexuals from civil service jobs, including teaching, in the 1950s, and persisted well into the post-Stonewall era with the efforts of Anita Bryant and California’s movement to “Save Our Children” from lesbian and gay teachers in the late 1970s.  Rosky traces this history to the present where opponents of LGBT rights do not trade in such starkly homophobic stereotypes; instead, they deploy more “palatable” indoctrination claims to achieve their ends.  But it is not just opponents of LGBT rights who credit these stereotypical notions of gay parenting.  Rosky shows how the LGBT movement has adopted a defensive and even “apologetic” response to false allegations: “[b]y focusing on the empirical questions of how children become queer, LGBT advocates have sought to bracket the normative question of whether children should become queer.”  Although he pulls some of his punches, it is clear that Rosky finds that the “fear of the queer child” is not solely a heterosexual phenomenon. LGBT advocates pursue a strategy that leads them to adhere to assertions that LGBT parenting is just like straight parenting.  For example, LGBT advocates did not embrace empirical studies that suggest LGBT parenting leads to different outcomes than heterosexual parenting.  Likewise, they overlook studies that show children of LGBT parents are more likely to understand gender in nonconformist ways or even be queer – and that could support arguments that queer parenting can be better.  This resonated for me as a queer parent.  Sameness discourses may have a strategic value even if they may undermine queer parenting’s contributions, notably a more egalitarian division of labor and support for nontraditional gender roles.

There are contexts however, where the LGBT fear of the queer child takes on a more normative bent.  LGBT interventions on parenting in the current French debate over marriage equality reflect this same defensive posture. Many gay parents and parents-to-be embrace the central role of a strong female figure in a child’s life – a reflection of the deep legitimacy of the sex binary in France.

Rosky artfully interweaves gender and sexuality theory to define family law’s anti- queer parenting posture.  Rosky’s most compelling conclusion moves beyond the queer child taboo to advocate that the state should adopt a neutral posture with regard to the straight or queer positionality of parenting and of children.  His “no promo hetero” posture with regard to childrearing would bar the state from heterosexist positioning and allow families to embrace queer childhood.  Rosky’s scholarship does justice for the queer kid I was in the 1980s by calling out heterosexist presumptions (within gay rights and progressive movements) that sidelined those of us in the gay youth movement.  His work reminds us of the importance of undermining heterosexist legal regimes and the (more) pointed and active role progressive scholars should play in moving beyond the fear of the queer child.

Kerry Abrams

Every day, married couples make decisions about how to allocate work within their relationships. Some couples specialize, with one person performing a breadwinning role and the other doing the lion’s share of caregiving tasks. Others divide breadwinning and caregiving tasks fairly evenly, and still others perform the breadwinning role together while outsourcing caregiving to housekeepers, gardeners, and nannies. When spouses make a decision about how to [...]]]>

Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U. L. Rev. 721 (2012).

Kerry Abrams

Every day, married couples make decisions about how to allocate work within their relationships. Some couples specialize, with one person performing a breadwinning role and the other doing the lion’s share of caregiving tasks. Others divide breadwinning and caregiving tasks fairly evenly, and still others perform the breadwinning role together while outsourcing caregiving to housekeepers, gardeners, and nannies. When spouses make a decision about how to allocate work, the decision often feels like a private choice. Feminist scholars have long argued that, to the contrary, choices regarding breadwinning and caregiving are largely shaped, or even coerced, by law.

Deborah Widiss’s article Changing the Marriage Equation provides a new way of analyzing the complicated interaction of law, social norms, and individual choice that leads to gendered roles in marriage. Widiss argues that choices regarding the allocation of paid and care work are profoundly shaped by three factors, which together make up what she calls the “the marriage equation.” Two of the factors of the marriage equation are legal—sex-based classifications within marriage law, and the substantive law of marriage. The third is social—the gender norms of marriage. The article argues that all three factors affect couples’ decisions about the allocation of labor. Widiss also argues that the first factor, sex-based classifications within marriage law, was largely dismantled during the equal protection revolution of the 1970s, but that the other two factors continue to work together to produce gendered outcomes in the allocation of work within marriages. She then suggests that same-sex marriage can provide a natural experiment for assessing the relative strength of substantive marriage law and gender roles within the marriage equation.

Widiss’s marriage equation concept is a useful analytical tool for understanding what many have referred to as a stalled feminist revolution. Feminists hoped that dismantling the first piece of the marriage equation, sex-based classifications, would lead to a more equitable distribution of breadwinning and caregiving work. But despite the formal sex equality now required by the Supreme Court, the persistence of substantive marriage law and cultural gender norms have meant that formal equality has only a limited influence on individual couples’ choices. Widiss’s article gives many examples of the ways in which substantive marriage law still encourages specialization, even without mandating sex-based roles within marriage. For example, two couples that make identical combined salaries but have allocated paid and care work differently will experience a large disparity in Social Security benefits earned over a lifetime. The couple with one breadwinner will earn much more in Social Security benefits—perhaps tens of thousands of dollars more—than the couple with two.

Standing alone, these types of legal incentives to specialize would not necessarily have a gendered effect on personal choices regarding breadwinning or caregiving. We would expect breadwinners and caretakers to be randomly distributed across husbands and wives. But if we add the third piece of Widiss’s marriage equation, societal gender norms, legal incentives to specialize matter. When law encourages one spouse to specialize in breadwinning and the other in caretaking, the vast majority of different-sex spouses opt for breadwinning by the man and caretaking by the woman. Widiss uses social scientific studies to show that couples make this choice even where pure economic theory would suggest they might do otherwise; women who earn substantially more than their husbands, for example, actually do more caregiving work than those who earn the same as their husbands, perhaps because they are trying to correct for their “gender deviance” in out-earning their husbands.

In the final part of Widiss’s article she considers how same-sex marriage might affect the marriage equation. She reviews research showing that same-sex couples tend to be more egalitarian about both breadwinning and caretaking functions within their relationships. But she then expresses a cautionary note. All of these studies were done using data that predated legal marriage for same-sex couples. All they show is that, absent the legal incentives provided by marriage, same-sex couples tend to allocate work differently. But what will happen now that many same-sex couples can marry? Marriage equality, Widiss argues, will provide a unique natural experiment that will demonstrate the effect of substantive marriage law on the one hand and gender norms on the other. This experiment will be especially effective if, as she notes, the Defense of Marriage Act is struck down, since DOMA prohibits validly-married same-sex couples from access many of the federal benefits that encourage specialization within marriage. If same-sex couples who marry turn out to specialize to the same extent that different-sex couples do, then we might conclude that it is the legal incentives provided by marriage that are correlated with specialization, rather than gender difference. If not—if, say, gay male couples tend to both be breadwinners and outsource caregiving more than straight couples or lesbian couples—then we might think that the substantive law of marriage makes little difference, and what matters instead is the each spouse’s performance of a particular gender norm.

When discussing work and family issues, my students often express the view that law can’t do anything about them because gender norms are so entrenched. Widiss gives us a new way of thinking about the role of law. Legal equality, standing alone, may not be able to do much about gender inequality in the home. But reform of laws that appear to be sex-neutral, such as substantive marriage law, actually might result in real change. It will be fascinating to see what the “natural experiment” provided by same-sex marriage yields. We may discover that the substantive law of marriage has been doing more to sustain traditional gender roles than we ever imagined. Or, we may discover that gender norms have a power all their own, regardless of whether they are supported by law.

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) [...]]]> I. Glenn Cohen, Regulating Reproduction:  The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), available at SSRN.

Brian Bix

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative.  However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions:  a view that the homosexual lifestyle should be criticized rather than supported.

In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”:  it is in a sense changing the topic, and calling one thing by a more favorable name.  Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).

In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist.  When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child:  custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on.  The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better.   However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent.

Cohen’s focus is on policies affecting “decisions about whether, when, and with whom to reproduce.”  Such policies would include restrictions on who can use in vitro fertilization (IVF) (with some clinics excluding single patients, unmarried couples, older patients, and same-sex couples); laws requiring insurance coverage for IVF costs; laws requiring gamete donations to be non-anonymous; laws criminalizing surrogacy (or commercial surrogacy) or simply refusing legal enforcement of such agreements; and laws criminalizing incest between adult siblings.  As Cohen points out, the “best interests of the child” principle is commonly offered, by both judges and commentators, as one of the justifications for such policies.  However, this assumes a comparison that is almost always absent.  The argument is that children of same-sex parents or older parents or single parents or parents using anonymous gamete donors, etc., suffer some distinctive harm.  However, if (for example), a same-sex couple is not allowed to use the IVF treatment or the surrogate the couple needs to have a child, the child the couple might otherwise have had will now not come into existence.  It is not as though the same child could have come into existence, but with younger, married, opposite-sex parents who did not need to use a surrogate.  This is what Cohen (following Derek Parfit, Reasons and Persons (Oxford, 1984)) calls the “Non-Identity Problem.”  If the choice is between a particular child existing and this particular child not existing at all, then one can hardly say that this child was harmed by being born to a single parent, an older parent, a same-sex couple, a couple who used a paid surrogate or anonymous gamete donors, etc. — unless one could say that that child’s life is so bad that it would have been better had she never been born at all.  We are rightly reluctant to say that, even for children with rather unfavorable circumstances (and courts agree, as shown in their near-universal refusal to recognize claims of “wrongful life” on behalf of seriously ill or disabled children).

Cohen notes that sometimes policies affecting reproduction create “Imperfect Non-Identity Problems,” as there may be cases where the same child would come into existence with or without the policies.  Thus, the same gamete donor might donate even if anonymous donation is no longer allowed, and the same surrogate may be willing to offer her services despite the prohibition of payments above expenses.  In such cases, hypothetically, the same child could come into existence who would have been born without the regulation, and this same child would have the better circumstances created by the regulation – in any event, a true comparison can be made — but these cases are likely to be exceptional.  It is more likely that policies of these sorts will affect whether children are born and which children are born (e.g., as the class of potential gamete donors who will still donate even if they are to be identified differs from the class willing to donate anonymously, those having children using gamete donors will likely have genetically different children depending on which policy is in place, and those needing gamete donors may end up having no children if a policy of non-anonymity leads to a shortage of donors, as has occurred in some countries).

In summary, Cohen’s important article reminds us that, in the area of regulation of reproduction (as in many other areas of family law), we — commentators, courts, and lawyers alike — must get out of the intellectually lazy habit of defending our preferred public policies based on “best interests of the child,” and either find an alternative defense or change our policy preferences.¹

1. For further work extending Cohen’s analysis in Regulating Reproduction, see also I. Glenn Cohen, Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012) and Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson, 97 Minn. L. Rev. (forthcoming 2012), available at SSRN.

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under [...]]]> Camille Gear Rich, Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law, 101 Calif. L. Rev. (forthcoming 2013), available at SSRN.

Katharine Barlett

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling?

Perhaps we assume that child molestation statutes adequately distinguish innocent behaviors from alarming ones. Not so, Rich claims. Some child molestation statutes impose specific intent requirements compelling prosecutors to prove sexual motivation or illicit intent. Others carve out exceptions to general intent requirements for behaviors construed to be normal caretaker responsibilities. Either way, Rich contends, intent determinations turn on social norms (or “common sense”) about appropriate parenting behavior, and these norms are highly gendered. A mother blowing kisses all over a child’s belly is relatively common and unproblematic. The same behavior by a father, grandfather, stepfather, or boyfriend raises suspicion. Further, prosecutors tend to judge the appropriateness of some behaviors—for example, bathing with the child, parental nudity, diapering practices—by whether the child’s mother has authorized them. Mothers are the gatekeepers, and fathers parent at their own risk. They may do as mothers say, but not necessarily as they do.

Rich objects to the increasingly broad definitions of child molestation because, whether they are applied to just to men or to men and women equally, they intrude on family autonomy and privacy. Her emphasis, however, is on the specific damage caused by treating men differently. Gendered child molestation standards generate gendered parenting behaviors, as men understandably avoid actions that may raise suspicion about them as parents, even as women through these same actions deepen their own intimacy with their children.

Rich holds feminists at least partially responsible for the gendered standards she identifies. She blames primarily dominance feminists, who heightened awareness of sex abuse, urged successfully that legislators enlarge its definition, constructed molestation as a sex-specific wrong that men commit against innocent women and children, and insisted that prosecutors and judges believe women and children when they claim abuse. This strategy helped to entrench societal understandings of men as dangerous sexual predators who are not to be trusted to get too close to children, and constrained male behavior and self-definition accordingly.

Rich argues that spooking fathers is not in women’s interests, and that feminists should have known better. Liberal feminists, in particular, understood that loving and engaged fathers who enthusiastically assumed their share of caretaking responsibility for children were critical to equality for women. Rich concludes that these feminists failed feminism, and families, when they did not resist the overly broad and gendered construction of sex abuse that dominant feminists promoted. Perhaps liberal feminists were asleep at the switch; maybe they were reluctant to criticize a brand of feminism that seemed to put women’s interests front and center. Either way, she argues, they neglected to act on their own egalitarian principles.

Liberal feminist complacency on this and related family law issues has created the need, and space, for a “new camp of post-dominance” feminists,¹ with which Rich allies herself. By Rich’s description, these feminists have more backbone than liberal feminists, and they take more seriously the feminist values of autonomy and liberty. They believe that the law is overly paternalistic when it intervenes too much in family relationships, and that this paternalism “prevents women from exercising personal agency to decide what kinds of family relationships they would like to form.”  More broadly, post-dominance feminists oppose the “sexual suspicion of men at the heart of the dominance feminist critique”—suspicion that “threatens men who have adopted an ethic of care.”

Many family law issues have divided feminists, but this one may be more challenging than most. Rich anticipates the potential downsides to the attention she draws to the lack of gender neutrality in the prosecution of child molestation—that the conduct of mothers will be more closely scrutinized; that too much latitude will be given to abusive fathers; and that only the most privileged men will benefit from creating more gender-neutral standards. Rich responds to these difficulties by acknowledging the necessity for women’s autonomy and children’s safety, and by arguing that greater parental autonomy will serve gay parents as well as middle-class fathers.

Yet it is not clear that the problem Rich describes can be easily resolved. The inconsistency she identifies suggests anxieties about parenting, sex, and equality that many feminists, despite their own best intentions, cannot seem to dispel. We want men to share responsibility for children and are critical of them when they do not do so. At the same time, we do not seem to trust men with children in the same way we do mothers. Rich argues that feminists cannot have it both ways: we cannot both treat men suspiciously, as second-class parents, and expect their full and equal commitment as loving caretakers. She’s right, of course—whether or not we have the will to act on her powerful insights.

1. E.g., Melissa Murray and Jeannie Suk.  See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006).

As we all know, the question of whether sex/gender should serve as an eligibility criterion in the distribution of marriage licenses has received a vast amount of attention over the last two decades. Although the issue of whether sex/gender is a crucial element of parenting has received less attention, it is no less important. In this exciting and path-breaking [...]]]> Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012), available at SSRN.

Carlos Ball

As we all know, the question of whether sex/gender should serve as an eligibility criterion in the distribution of marriage licenses has received a vast amount of attention over the last two decades. Although the issue of whether sex/gender is a crucial element of parenting has received less attention, it is no less important. In this exciting and path-breaking article, Darren Rosenblum calls for the unsexing of motherhood and fatherhood—that is, for the severing of parental categories from biological sex. In Rosenblum’s perfect world, anyone—regardless of sex—can be a mother or a father. The decoupling of parenting from sex will “ultimately eliminate the presumption that the primary parent is the mother, in which case a parent of any sex could claim to be the primary parent.” He adds that “[p]arents would be expected to provide nurturing, support, structure, and discipline to children, but they would not need to divide these and other elements of childcare based on parental biosex.”

As Rosenblum perceptively explains, a powerful interplay of institutions and norms help to link parenting categories with sex. One of these is the market. The fact that men dominate the market sphere reinforces cultural stereotypes about women’s “natural” capabilities in the domestic sphere. And natural understandings of motherhood place great importance on genetics, gestation, and lactation, seemingly ignoring the fact that it is possible for women—those who become parents through adoption or surrogacy, for example—to be mothers in the absence of one or more of these biological factors.

After detailing the powerful forces that contribute to the sexing of parenting, Rosenblum cautions that legal rules promoting thin gender neutrality will not lead to its unsexing. Here Rosenblum astutely uses the Family and Medical Leave Act (FMLA) as an example. On its face, that statute offers male and female parents the same unpaid leave opportunities. This gender neutrality is thin, however, because it leaves in place powerful social default rules that discourage men from taking parental leaves and place greater childcare responsibilities on women. The FMLA also does not account for market forces that reward male paid work, which create further disincentives for men to take unpaid leaves.

Rosenblum contrasts the FMLA’s thin gender neutrality with the thick neutrality of Sweden’s parental leave policy. Under that policy, two employed parents are entitled, as a unit, to up to eighteen months of parental leave. But in order to receive the maximum amount of leave time, each parent is required to take two months of leave. After that, couples are free to apportion between themselves the remaining time as they deem best. The policy also requires that the leave be paid (at 80% of salary for the first three hundred and ninety days and at a flat rate after that). In addition, the policy allows both parents to be on leave simultaneously and permits both to return to work part-time until the child reaches the age of eight. And, finally, the Swedish government provides a comprehensive child daycare system, which helps parents with the transition back to work.

Like the FMLA, the Swedish leave policy is gender neutral. But as Rosenblum persuasively argues, only the Swedish leave rules account for the market and social forces that make it less likely that men will take parental leave from work. Creating incentives for both parents to take time off from work in order to care for children has led the vast majority of new Swedish fathers to take parental leave.

One of the reasons why this is a superb article is that Rosenblum is fully cognizant that the unsexing of parenthood will not come about through legal rules that fail to account for the economic, social, and cultural forces which promote gendered parenting. Indeed, thin gender neutrality’s failure— which in my view includes not only the FMLA, but also the repudiation of the tender years doctrine and the notion that only men should be responsible for alimony and child support—to degender parenting is striking. Our laws may promote gender neutrality in parenting, but our culture lags far behind.

As Rosenblum points out, much of the unsexing of parenthood is taking place in family forms outside of the traditional married heterosexual household. Single individuals and same-sex couples, for example, parent in ways that combine the traditional maternal and paternal roles. Indeed, the empirical literature suggests that lesbian parent couples are able to divide the work outside and inside the home more equitably than married heterosexual parents. It is likely that this is in large part because same-sex couples are not able to fall back on default rules that assign parental roles and responsibilities according to gender.

Although the challenges in degendering parenthood are daunting, this article helps us understand the nature of those challenges while offering a compelling vision of how to overcome them.  I do not know if it will be possible to fully unsex parenting in our lifetimes. But after reading Rosenblum’s article, I am more persuaded than ever that it is crucial that we try.

Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.

Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues [...]]]> Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010).

Camille Gear Rich

Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.

Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners.

Davis convincingly argues that scholars analogizing between these two types of marriage only seem convincing because they frame the debate at a high level of generality. They argue that both marriage forms require that we honor a right to “freedom” in the formation of intimate relationships, speaking in the “due process” and “fundamental rights” idiom of Lawrence v. Texas. However, Davis argues that polygamous marriage’s constitutive and non-shared feature is its seriality. Polygamous unions are constantly in the process of contracting and expanding, she explains, as the partners to the marriage add and subtract spouses. With this contrast made clear, Davis moves to an analysis of the distinct and deeply serious agency risks inherent in polygamous unions, with the goal of showing how they might be overcome.

In order to properly regulate polygamy, she explains, we must focus on the special autonomy and economic risks faced by sister wives in polygamous marriages. While she does not make this pitch explicit, she invites her readers to imagine the creation of a “Uniform Sister-Wife Act,” a series of sticky default rules that would ensure that partners to polygamous marriages can protect their fair share of the “marital pie” in the face of a constantly evolving marital relationship.

Davis is fearless and unflinching in the portrait she paints of polygamous unions. She challenges us to take polygamy on the terms we currently find it, typically established as a one husband, multiple wife model, with the husband as the expected primary financial support. Additionally, she reveals the numerous, diverse and radically different constituencies with a vested interest in polygamy’s decriminalization: feminists, Mormons, Christian fundamentalists, immigrant groups, members of the Nation of Islam and black nationalists.  (Who knew that one of the largest groups of practicing polygamists is a collection of the last two groups mentioned above, living in Philadelphia?)

As a result of Davis’s efforts we are left with a far more complicated understanding of the role polygamy plays in contemporary American culture.  Her project would have been vastly simpler had she bracketed the contemporary realities of polygamous unions and focused her model solely on the highly seductive, feminist utopian version of polygamy that some scholars have imagined. ¹ This utopian version assumes that polygamous marriages may contain more than one husband, and/or that women and men exercise relatively equal economic power in the home, as both sexes are equally able to participate in the world of paid work. Davis instead invites the reader to embrace some of the more disturbing examples of polygamy, as it is practiced today.  She reveals that the attendant risks associated with contemporary polygamous unions can be addressed by drawing on models in partnership law.  As a result of her efforts we have a careful, thoughtful, and provocative analysis of the risks of domination produced by existing polygamous unions, even as she gives us tools that will allow for the regulation of the imagined polygamous unions of tomorrow.

Davis’s piece of course will make readers think of the now-cancelled HBO Drama Big Love, which followed the trials and travails of Bill Hendrickson and his three sister wives  (Barb, Nicki and Margene) as they negotiated life in suburban Utah.  Davis explains that by moving polygamy from the compound to the suburbs, the show’s producers ushered polygamy into a new era in popular discourse, inviting us to imagine the polygamous family as just another family living next door.  But after reading Davis’s piece, feminist viewers of Big Love will be reminded of the complex economic dance these sister wives faced as the marriage evolved.  As the series progressed, multiple unexpected forms of domination emerged, prompting numerous questions.  What recourse does a sister-wife have when she is forced to become the primary childbearer for the entire family?  What recourse does she have when another wife attempts to outsource childcare duties to her?  What legal remedies can she claim when exploitative demands are made on her earnings by her fellow sister wives? Finally, and perhaps most importantly, what recourse does she have when she opposes the introduction of a new sister wife?

The utopian vision of polygamy that some feminists imagine makes these negotiations seem seamless and easy.  Big Love reveals that they are often ugly and difficult.  Regulating Polygamy provides solutions to some of the thorniest problems, and reveals that others are simply unexceptional challenges that are already embedded in dyadic marriages.

Davis’s piece is profoundly important in my view because it comes at a time when utopian feminist arguments about polygamy are gaining ground. She draws our attention to the information deficits and negotiation risks women face prior to entering these marriages, and the potential dilution of voting interest and economic share as the marriage evolves to include more partners. The issues she raises are sure to give readers pause, particularly those who subscribe to view that we should fold back into the family relationship many of the maternal and wifely responsibilities working mothers now outsource to housekeepers, nannies and other care providers. That is, feminist readers may conclude that women are far safer in dyadic marriages – albeit relying heavily on the network of commercial or extended family helpers that Melissa Murray describes,² rather than accepting the complications polygamous marriages bring. I myself am deeply concerned about the way marriage often compels working women to outsource the most difficult “wifely” nuturing and care giving responsibilities, and to assign them to poorly paid brown and black bodies. I am deeply concerned about the tendency to downshift intimacy and caregiving into short term, disposable relationships—a kind of treatment we do not expect in families.  Yet Davis’s article makes one profoundly aware that expanding the marriage relationship and bringing in new partners to share these responsibilities does not resolve these perennial questions.  Indeed, it makes resolution even more fraught.

There is much to recommend Regulating Polygamy.  One can trust Davis to be a neutral and pragmatic guide as she explains polygamy’s challenges.  She is neither an advocate for polygamous marriage, nor a detractor intending to warn us away from this family form.  The reader leaves her discussion with a better understanding of how commercial law can provide helpful direction as we determine how to create legal protections that will adequately inform and ensure the fair treatment of sister wives (and potentially brother husbands) in the future. However, she also paints a compelling picture of the challenges we face in attempting to regulate polygamy. Policymakers would do well to keep her on speed dial if they ever take up this challenge.

1. See, e.g., Elizabeth F. Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. Rev. L. & Soc. Change 277, 283, 308 (2004).
2. Melissa E. Murray, The Networked Family: Reframing the Legal Understanding Caregiving and Caregivers, 94 Va. L. Rev. 385 (2008).

In the not too distant past, it was taboo for women (and men) to speak openly about miscarriages, infertility, or anything having to do with the delicate business of giving birth.  More recently, however, the social anxiety around these topics has receded.  Many of us now speak openly about the pain of a miscarriage or an unsuccessful round of [...]]]> Carol Sanger, “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law, 100 Cal. L. Rev. 269 (2012).

Melissa Murray

In the not too distant past, it was taboo for women (and men) to speak openly about miscarriages, infertility, or anything having to do with the delicate business of giving birth.  More recently, however, the social anxiety around these topics has receded.  Many of us now speak openly about the pain of a miscarriage or an unsuccessful round of IVF.  Indeed, some find it cathartic to broadcast their grief to a wider audience, blogging about their experiences or discussing it with friends (broadly defined) on social media.  But it is one thing to enlist friends and social media in the grieving process.  It is quite another thing to involve the state.  Or is it?

That is the question that Carol Sanger takes on in “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law.  In this penetrating and thought-provoking Essay, Sanger takes on the taboo subject of stillbirth—the act of delivering a dead child—and the emergent movement that seeks to enlist law to help the parents of stillborn children deal with their grief and loss.  Specifically, Sanger considers “Missing Angel” legislation—laws that authorize the state to issue parents a birth certificate for a stillborn child.  The whole thing sounds at once macabre and incongruent—issuing a birth certificate for a child that was born dead?  But, as Sanger observes, it makes perfect sense to grieving parents, for whom the standard issue fetal death certificate fails to capture the magnitude and profundity of their loss.

In order to understand the nature of the loss, Sanger explains, one must understand the transformation of pregnancy and childbirth in our culture.  Medical technology has “permanently altered our relationship to the fetus.”  In particular, obstetric sonography “has made fetuses present” in the lives of their families “in ways that once were possible only after the baby was born.”  This process, which Sanger terms “social birth,” now precedes biological birth.  And it is the fact of social birth that makes stillbirth—and the standard legal response to it—so confounding to grieving parents.  A fetal death certificate seems to many parents of stillborn children “an offensive and bureaucratic response to their circumstances and suffering.”  It denies for many the basic fact that there was a pregnancy, labor, and the delivery of an actual baby, rather than a fetus.  In short, it is a clinical response that fails to capture the complexity of the parent-child relationship in utero, and in failing to grasp the nature of this relationship, compounds the parents’ grief.

Stepping in to supplant the fetal death certificate (and all of its inadequacies) are Missing Angels Acts, which authorize states to issue stillborn birth certificates.  The difference in nomenclature may be mere semantics to some, but for grieving parents it is deeply meaningful.  As Sanger observes, the certificates are at once an artifact of mourning, a public record that provides “dignity and validation” and a posthumous change of status to the lost child, and a means of confirming parental identity.  Sanger is quick to note that stillborn birth certificates, unlike other forms of public records, do not confer a tangible benefit or right upon the surviving family members.  Their purpose is primarily therapeutic—“a hug from [the state] for grieving mothers.”

It all seems pretty innocuous.  If a stillborn birth certificate offers some solace to grieving parents, what is the harm?  Sanger does not disavow Missing Angel Acts and their aim to push the state into a more compassionate and therapeutic posture, but she does urge us to think critically about what this development might mean for legal culture.  As an initial matter, Sanger notes that stillborn birth certificates are something of a legal fiction—and one that may compromise demographic integrity if unchecked.  But her concerns go beyond the integrity of public record-keeping.  Stillborn birth certificates, like victim impact statements, take seriously law’s affective and therapeutic potential.  And, as Sanger’s account of those who lobby for Missing Angels Acts suggests, this potential is real and meaningful—law can “soothe the emotional needs of a distressed constituency.”  But Sanger worries about the collateral consequences of this therapeutic turn.  Legal recognition, she notes, is a tricky business.  In recognizing the pain of stillbirth, does law prioritize this form of fetal loss above others like miscarriage, elective abortion, or the destruction of unused embryos?  Should these other forms of fetal loss be documented, and the grief with which they are associated recognized, by the state?  How do we determine the “appropriate scope of legal compassion?”

Importantly, Sanger’s critique of the promise and perils of public recognition has implications that extend beyond the narrow context of stillbirth and fetal loss.  For example, scholars of marriage and sexuality have frequently noted the degree to which legal recognition turns on exclusivity—for recognition to mean something, there must be an other that goes unrecognized.  With this in mind, Sanger’s point that the recognition of stillbirths prioritizes some forms of fetal loss over others echoes concerns that many have over the question of legal recognition of same-sex couples through marriage and alternative statuses.  Relatedly, her observations regarding the stillbirth birth certificate’s ability to provide dignity and validation sound in the same register as appeals for marriage equality that evoke the marriage license’s ability to dignify and validate same-sex relationships.  In the context of the marriage equality debate, most have accepted unquestioningly law’s ability to confer this kind of dignity and validation.  But Sanger’s nuanced reading of Missing Angels Acts belie such a facile conclusion.

Relatedly, Sanger worries that Missing Angels Acts allow the state to promote a kind of compulsory reproductive mourning that shapes emotional responses in ways both miniscule and profound.   She argues that, in providing a legal imprimatur for stillbirth mourning, Missing Angels Acts “define stillbirth as a particular kind of event and suggest what suffering mothers of stillborn children need (or are supposed to need) and how they can get it.”  Though private gestures like a doctor referring a grieving parent to a support group, effectively do the same thing, there is something distinctive about the state taking on this role.  The tension between the public and private that Sanger identifies in the context of stillbirths also applies in the marriage equality debate.  Though the mainstream LGBT rights movement has pressed for public recognition through marriage, others have argued that the state’s role in recognizing marriage contributes to a normative preference that renders marriage more or less compulsory for all who are eligible for it.  They argue that the state should take no role in recognizing adult intimate relationships at all, relying instead on private ordering for legal recognition.  This is not to say that The Birth of Death provides a platform for those who would reject marriage equality.  But the comparison between marriage equality and the stillborn birth certificate underscores Sanger’s point that the politics of public recognition—whatever the legal context—are complex and fraught.  Though Sanger focuses her lens solely on stillbirths, The Birth of Death offers important insights that transcend this narrow issue.

Sanger’s final caution focuses on the tension between Missing Angels Acts and abortion politics.  As she notes, “[p]art of the strategy to make abortion hard to get and hard to choose has been to define fetuses and embryos as infants, children, persons, and victims.”  Though the Missing Angels Acts advocates profess no stake in abortion politics, it is easy to see the many ways in which the issuance of a stillbirth birth certificate implicates the question of fetal personhood.  In the end, Sanger does not take a position in the debate, noting only that the salient issue is “whether there are reasons to hesitate before blurring traditional markers between life and death and between private and public mourning as a matter of law.  And if we do blur these lines, how should we conceptualize and measure the costs of doing so?”

In the end, there is much to recommend this piece.  First, it is a classic Essay—a thought-piece that explores an interesting issue, but does not succumb to the temptation of offering a hastily cobbled together prescription.  Instead, its purpose is to inform and provoke thought.  On these fronts, The Birth of Death is resoundingly successful.

Second, I love that The Birth of Death is classic Carol Sanger, which is to say that it, like much of her work, is neither exclusively doctrinal nor exclusively theoretical, but instead focuses on the relationship between law and culture.  And it is her trenchant eye for identifying one-offs like the Missing Angels Acts and locating them in a broader cultural and legal milieu that is Sanger’s trademark.  In this way, The Birth of Death echoes her recent work on Infant Safe Haven legislation (Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753 (2006)) and mandatory fetal ultrasounds for those seeking abortions (Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. Rev. 351 (2008)).  Though pieces that blend law and cultural studies have been criticized for being fluffy and insubstantial, The Birth of Death, like Sanger’s other work, offers a robust portrait of legal culture anchored in her careful parsing of legal text and supported by her keen eye for important historical and literary detail.  In the end, it is the kind of piece that stays with you, popping up at unexpected moments and forcing you to see the world in a new light.

Professor Janet Halley Royall Professor of Law Harvard Law School

Professor Melissa Murray U.C. Berkeley School of Law

Contributing Editors agree to write at least one jot for Jotwell each year.

Family Law Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.

Professor Janet Halley
Royall Professor of Law
Harvard Law School

Professor Melissa Murray
U.C. Berkeley School of Law

Contributing Editors

Contributing Editors agree to write at least one jot for Jotwell each year.

Professor Kerry Abrams
Albert Clark Tate, Jr., Professor of Law
University of Virgina School of Law

Professor Carlos Ball
Judge Frederick Lacey Scholar
Rutgers School of Law, Newark

Professor Katharine Bartlett
A. Kenneth Pye Professor of Law
Duke University School of Law

Professor Caroline Bettinger-Lopez
Associate Professor of Clinical Legal Education
Director, Human Rights Clinic
University of Miami School of Law

Professor Brian Bix
Frederick W. Thomas Professor of Law and Philosophy
University of Minnesota

Professor Martha Albertson Fineman
Robert W. Woodruff Professor of Law
Founding Director, Feminism and Legal Theory Project
Director, Vulnerability and The Human Condition Initiative
Emory Law School

Professor Havva Guney-Ruebenacker
Boston University School of Law

Professor Shani King
Co-Director, Center on Children and Families
University of Florida Levin College of Law

Professor Angela Onwuachi-Willig
Charles M. and Marion J. Kierscht Professor of Law
The University of Iowa College of Law

Professor Intisar Rabb
Boston College Law School

Professor Camille Gear Rich
USC Gould School of Law

Professor Kerry Rittich
University of Toronto Faculty of Law

Professor Darren Rosenblum
Pace University School of Law

Professor Laura Rosenbury
Associate Dean for Research and Faculty Development
Washington University School of Law

Professor Clifford Rosky
University of Utah S.J. Quinney College of Law

Professor Jeannie Suk
Harvard Law School

Professor Philomila Tsoukala
Georgetown University Law Center