Recognition Without Consent

Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276 (2014).

Relationship recognition has been at the center of reform efforts in family law for the last two decades. Scholars and advocates alike have focused intently on the need to provide recognition and support for a variety of relationships that the law has traditionally ignored. These include the relationships of not only same-sex couples, but also of cohabiting couples, nonmonogamous groupings, and friends. The reform proposals have assumed that legal recognition brings with it economic benefits.

In a fascinating new article, Erez Aloni questions this assumption by highlighting the interplay between two considerations: first, it is sometimes the case that nonrecognition of relationships can have financial benefits for their members; second, the state sometimes recognizes relationships in the absence of a request by either party—what Aloni labels “purely ascriptive recognition”—for the limited purpose of determining eligibility for particular benefits. In most cases of purely ascriptive recognition, if the combined income exceeds a certain amount, then the individuals become ineligible for the benefit in question. When the two considerations are brought together, we are left with forms of legal recognition that cause financial harm.

Aloni begins by exploring different examples of purely ascriptive recognition, including the termination of alimony upon the recipient’s cohabitation and the federal government’s determination of family income for purposes of who is eligible to benefit from means-tested programs such as Supplemental Security Income, Medicaid, and financial aid for higher education. In all of these cases, the state’s recognition of relationships causes financial harm. It has been all too easy, Aloni rightly points out, to miss the link between recognition and harm given that family law reform proposals have been so consistently based on the need to expand the types of relationships that the state legally recognizes.

Aloni makes several important observations about the link between recognition and financial harm. First, it is unfair when the government recognizes relationships in ways that deprive their members of economic benefits while refusing to recognize the same relationships in other contexts in which recognition would confer benefits. This recognition asymmetry is unjust. It is one thing to contend that certain kinds of relationships do not merit recognition; it is another matter altogether for the government to recognize relationships only for the purpose of saving itself or third parties money.

Second, policies grounded in involuntary recognition often have a disparate impact on vulnerable populations like the poor, the elderly, and the disabled. The reasons for the disparate impact are two-fold. These groups are less likely to be married, and thus to enjoy the large number of state-provided benefits that accompany that status. At the same time, these groups are more likely to be in need of the assistance provided by means-tested programs.

Third, involuntary recognition regimes that deprive individuals of benefits are particularly salient to individuals, such as those who cohabit after divorce and who depend on welfare programs, whom society has traditionally viewed as morally suspect. Lastly, there is a largely unrecognized tension between the cultural benefits that accompany recognition and the distributive injustice that can result from that recognition. There are important trade-offs to consider between, on the one hand, the cultural benefits to cohabiting partners, for example, who might automatically qualify, under some proposals, for having their relationships legally recognized after living together for a certain period of time and the financial harms that might accompany that recognition.

At the end of the day, Aloni grapples with a problem that family law scholars have not been sufficiently cognizant of: the problem of over-recognition. The field has been so focused on the harms caused by the lack of recognition, that many scholars have assumed that recognition is an unmitigated good. Aloni in this article compellingly invites us to think otherwise.

Cite as: Carlos Ball, Recognition Without Consent, JOTWELL (July 25, 2014) (reviewing Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276 (2014)), http://family.jotwell.com/recognition-without-consent/.
 
 
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    ‘A man doesn’t own his marriage; he is only the steward of his wife’s love.’ – Ed Cole