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Punitive Courts and Shaky Science: The Case of the Floating Lungs Test in the Criminal Prosecution of Abortions

Aziza Ahmed, Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions (2019), available at SSRN.

The criminal regulation of abortion seems to be making a strong comeback. Aziza Ahmed in her draft paper, Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions, examines this trend, placing it in the context of what she calls a “prosecution-based approach to social issues including abortion, caretaking, and pregnancy.” (P. 4.) Ahmed’s paper offers a disturbing and important dive into the criminal prosecution of women who attempt to abort without help from a doctor—only to stand accused of crimes ranging from feticide to infanticide, to criminal child neglect, if the fetus was deemed to have been born alive. It is an inquiry that merits attention from family law scholarship, which has increasingly recognized that family regulation resides at the interstices of multiple regulatory regimes, including criminal law.1

The paper’s title refers to the forensic test, the Hydrostatic or Floating Lung Test (HLT or FLT), used to determine whether a fetus was born alive. In its simplest form, it involves submerging the lungs in water and observing if they float, which would be an indication of the presence of air, possibly in the aftermath of drawing a breath. The test was invented by Galen, a Roman physician (129AD-200AD), but emerged as a criminal trial tool in the 17th century and, according to Ahmed, is making a reappearance in cases that involve criminal prosecutions of women who have tried self-managed abortion, miscarried, or even given birth to a stillborn baby. Part of the problem with the test seems to be that, as part of a criminal procedure, it rightly belongs in the seventeenth century. The relevant forensic literature has concluded that the test is unreliable, as good as “witchcraft” according to some lay commentators. Courts, however, regularly resort to it. According to Ahmed, the courts are in fact legitimating an unreliable test, partly influenced by the pressures of the carceral state, the need to produce finality and certainty in cases where there is little room for that, and a moral panic about pregnancy and abortion.

The first part of the paper explores the recent history of state engagement with abortion, pregnancy, and parenting, focusing on the shift from welfare law to criminal law in the eighties and nineties, a moment that also introduced us to “crack babies” and “shaken baby syndrome.” Ahmed argues that, in both of those cases, agreement within the scientific community about either the effects of cocaine on fetuses or the existence of a medically recognizable “syndrome” was lacking. Court acceptance of both pathologies further solidified national panics about caretaking and drug use by young mothers, especially minority mothers. Ahmed argues that the same movement from dubious scientific evidence to court acceptance is currently happening in the context of self-induced abortions, which are likely to increase, given the momentum of punitive anti-abortion legislation and the relative ease of obtaining abortifacients online.

Ahmed delves into the Purvi Patel case in order to illustrate the test’s problematic use in criminal courts. Patel, a young woman from a conservative South Asian family, used abortifacients, and delivered a fetus which she believed was dead. The state insisted it had been born alive. It prosecuted Patel for feticide and neglect of a dependent resulting in death. The HLT was employed to prove that the fetus had been born alive. Two expert witnesses, one for each side, came to contradictory conclusions, noting, however, the limitations and potential false positives of the test, which occur frequently. The prosecution won, and Patel was sentenced to thirty years. Despite the fact that the decision was partly reversed on appeal on constitutional grounds not involving the HLT, the test was accepted as legitimate, and Patel’s fetus was deemed to have been born alive on that basis. Even worse, the court seemed to validate the test regardless of where the alleged breath had been drawn inside or outside the birth canal. This overlooked the standard legal rule that the child needs to have been expelled from the birth canal for the determination of a live birth. The paper then offers a brief history of HLT’s use by the courts since the nineteenth century that further highlights an overall inconsistent approach to the test since the nineteenth century, while more recent cases have relied on the test as proof of life.

The paper’s discussion of the reasons why such a dubious test persists is perhaps the richest part of the article and the one that can potentially be mined for further development in a next version of the draft. First, Ahmed places the HLT in the broader context of rules of evidence on the admissibility of scientific expertise in criminal cases. The HLT survives against the background of very problematic evidentiary standards in regards to scientific expertise. Despite skepticism about forensic science, much of it remains admissible in criminal trials. (P. 26.) According to Ahmed, the return and perhaps further solidification of the HLT comes as a response to an intense need for finality and blame happening at a politically charged time when anti-choice activists have often successfully pushed for a conflation of abortion with infanticide. Ahmed argues that the current moment is also characterized by a moral panic about pregnant women who do not seem to behave according to a maternal instinct and seek instead to end their pregnancies. While Ahmed suggests that the application of the test has a raced and gendered logic, as do moral panics, the raced aspects of its application could use more detailed treatment.

Ahmed ends with the policy proposal that we should abandon the test altogether. This is not simply because of the test’s unreliability. Indeed, if we follow Ahmed’s thinking to the end, it leads to the conclusion that the decision about whether a fetus was born alive is a highly charged one, morally and politically. Rather than provide an objective way to assess when life begins, forensic science reflects and emerges from this fraught moral and political terrain. Overall, the paper compellingly draws our attention to the forceful comeback of punitive abortion regulation. Family law curricula sometimes heavily focus on the constitutional law aspects of decisions to have or not have a family. Ahmed points us to the growing shadow of the criminal law and compels us to pay attention.

  1. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Cynthia Godsoe, Redefining Parental Rights: The Case of Corporal Punishment, 32 Const. Comment. 281 (2017); Jeannie Suk, Criminal Law Comes Home, 116 Yale L. J. 2 (2006); Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U. L. Rev. 285 (2017).
Cite as: Philomila Tsoukala, Punitive Courts and Shaky Science: The Case of the Floating Lungs Test in the Criminal Prosecution of Abortions, JOTWELL (December 2, 2019) (reviewing Aziza Ahmed, Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions (2019), available at SSRN), https://family.jotwell.com/punitive-courts-and-shaky-science-the-case-of-the-floating-lungs-test-in-the-criminal-prosecution-of-abortions/.

Family Choices

Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. Rev. 912 (2019), available at SSRN.

What is the role of autonomy (choice) in American marriage law, and what should it be? This question is salient for topics like the proper treatment of premarital and marital agreements, but, as Courtney Joslin points out in her article, Autonomy in the Family, it also has clear importance for the proper treatment of non-marital cohabitants.

As Joslin reports, the basic contemporary approach to the legal treatment of cohabitation follows some variation of the 1976 California case of Marvin v. Marvin. That case authorized the enforcement of express and implied agreements between cohabitants, no longer treating all such agreements as unenforceable because they contradict public policy.1 However, as the author sums up, Marvin basically treated cohabitants as legal strangers, parties who can enter into agreements altering their rights and obligations to one another but are not required to do so. One justification offered for this approach centers on autonomy: because it is open to couples to marry, those who do not marry should be seen as having “chosen” to avoid the reciprocal duties that come with marriage, as well as the equitable sharing of property and the possible alimony claims that are available to spouses upon divorce, unless they agree otherwise.

As the article recounts, parentage law started on a similar path. Marriage provided the only sure means for a biological father to gain rights (and duties) relative to his children,2 while adoption provided the path for adults who were not the biological parents of the children in question. Those parties who passed up the opportunity to marry a child’s legal parent or to adopt the child were held to have “chosen” not to be a legal parent, and the courts felt justified in treating them as legal strangers to the child.

There were then a string of cases involving same-sex couples who had chosen to raise a child together,3 but by law could not marry and by circumstances or legal restrictions never got around to having the non-biological parent adopt. In these cases, the courts allowed the biological parent to exclude the former partner from the child’s life, even though the couple had earlier chosen to act as co-parents. Joslin shows how, partly in response to such cases, courts and legislators began to move away from a focus on formalities in determining parental rights and towards a more holistic, functional approach. This approach better reflects the family choices the parties had actually made as well as better serves the interests of the children.

Joslin argues that a similar move would be valuable in the legal treatment of non-marital cohabitants. Marvin had only moved the law part-way: cohabitants were treated, at best, like legal strangers; Joslin argues that they needed to be treated as family. Part of the problem with a focus on formalities for cohabitants (did they marry or not?) is that research shows that “the failure to transition to marriage often is not the result of an express, deliberate decision-making process.” (P. 966.) Also, the “decision” is frequently not mutual; the veto on getting married is usually made by the man, expressing and exacerbating gender inequality. Even couples living together has been shown by recent research frequently to be more “‘a slide into cohabitation’” than a deliberate decision by the couple. (P. 971).4

The article concludes that the legal treatment of family form, like the legal treatment of parental status, should move from form to function, to “how the parties viewed themselves as family members, and the degree to which the parties relied on each other.” (P. 965.) Only in that way will the law begin to “recognize and respect the actual family formation choices people have made.” (P. 987.)

As Joslin points out, models already exist for how this could be done—including examples from the State of Washington, some Canadian provinces, and some European countries. For instance, under Washington’s “committed intimate relationship” status, long-term cohabitants hold a number of the same rights as married couples. In particular, the committed intimate relationship status presumes joint ownership over property acquired during the relationship and provides for equitable division of such property by the court upon dissolution.5

Joslin also voices openness to an intermediate legal status, giving non-marital cohabitants fewer protections and rights compared to marriage; she advocates for allowing couples to opt out through express agreement (thus protecting autonomy through “opt out” rather than the “opt in” approach of Marvin); and she encourages state experimentation so that there might be real-world tests of different legal approaches to see which ones work best.

  1. As Joslin points out, states vary significantly in their application of Marvin, with some imposing important restrictions, e.g., only enforcing express agreements or agreements that were evidenced by a writing. (Pp. 927-30.).
  2. The article does not go into great detail regarding the treatment of non-marital children. The English common law and ecclesiastical treatment of non-marital children is substantially more complicated than the standard account credits. See, e.g., John Witte, Jr, The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered (2009).
  3. Joslin cites and discusses Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Cal. Ct. App. 1991); Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991); and Janice M. v. Margaret K., 948 A.2d 73 (Md. 2008). (Pp. 949-52.) Another egregious case in this category, cited (P. 951 n. 233), but not discussed by Joslin, is Jones v. Barlow, 154 P.3d 808 (Utah 2007).
  4. Joslin here cites Wendy D. Manning & Pamela J. Smock, Measuring and Modeling Cohabitation: New Perspectives From Qualitative Data, 67 Journal of Marriage and Family 989, 995 (2005).
  5. See, e.g., Connell v. Francisco, 898 P.2d 831 (Wash. 1994)Connell sets out a five-factor test for determining whether a couple is in a “committed intimate relationship.”
Cite as: Brian Bix, Family Choices, JOTWELL (November 7, 2019) (reviewing Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. Rev. 912 (2019), available at SSRN), https://family.jotwell.com/family-choices/.

Abortion, Motherhood, and Donald Trump

Yuvonne Lindgren, Trump’s Angry White Women: Motherhood, Nationalism, and Abortion, __Hofstra L. Rev. __ (forthcoming, 2019), available at SSRN.

In June, columnist E. Jean Carroll added her name to the list of women who have alleged that President Donald Trump sexually assaulted them, describing him raping her in the dressing room of a department store over two decades ago. In response, Trump said that Carroll was “not my type.” The controversy revived a discussion from the 2016 election asking how a man with multiple credible allegations of sexual assault, recorded on audio boasting that he grabbed women “by the pussy,” received a significant proportion of women’s votes— according to exit polls, fifty-two percent of the votes of white women.

In Trump’s Angry White Women: Motherhood, Nationalism, and Abortion, forthcoming in the Hofstra Law Review, Yvonne Lindgren provides a fascinating explanation rooted in the fights around abortion. She traces a shift in the anti-abortion movement’s tactics after Roe v. Wade to focus on protecting a specific traditional vision of white motherhood through to today’s political and legal conflicts. In her telling, this change in anti-abortion rhetoric laid the groundwork for modern conservative arguments that claim white nationalist motherhood as their standard in broader culture wars. Lindgren’s argument is not only persuasive in its own right, but also helps to explain other movements in the law to limit women’s autonomy within the family and promote a narrow idea of appropriate motherhood.

Lindgren begins by summarizing how anti-abortion arguments changed in the wake of Roe v. Wade. Initially the focus of anti-abortion activists was on the fetus and how abortion should be viewed as the murder of that fetal life. Citing Mary Ziegler’s research, Lindgren explains how activists shifted their focus from the fetus to the pregnant woman, arguing that abortion harmed women and motherhood as an ideal.1 Phyllis Schlafly, famously succeeding in her fight to prevent ratification of the Equal Rights Amendment, trumpeted motherhood as the source of morality for American society that would be irrevocably weakened by a constitutional amendment protecting gender equality.

This shift focused upon mothers, but it also cast a particular vision of the family and gender relations within it. I have previously written about the power of hegemonic masculinity, telling men that they are insufficiently masculine if they do not conform to a specific idea of what men are supposed to be: focused on proving their masculinity by competing with other men and refusing to engage in any activities coded as feminine such as caring for children.2 Lindgren’s article provides examples of this, such as Andrew Cherlin’s work describing the importance of stereotypical gender roles within the family for men who lacked power in the workplace.3

The call to protect this vision of a “traditional” family undergirds legal controversies stretching across family law today. Obviously, the abortion debate continues with increased legislative activity restricting access to abortion as state legislatures anticipate the Supreme Court revisiting and reversing Roe v. Wade. Increased legal restrictions on the conduct of women within a family unit can also be traced to the power of the nationalist family: attempts to broaden exemptions so that employers need not provide health insurance coverage for contraceptive methods, legal punishment for the actions of women taken while they are pregnant that might harm the developing fetus, and continued refusal to fund paid parental leave and childcare allowing women to stay within the workforce all trace back to what Lindgren describes as the socially constructed symbolic power of the abortion right. Lindgren’s conclusion, that the fight for abortion rights must include broader issues such as economic justice, helps to both explain current political arguments and point a way forward for progressive activists stymied by white women’s support for Trump and his political movement.

  1. See Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015).
  2. See Dara E. Purvis, Trump, Gender Rebels, and Masculinities, 54 Wake Forest L. Rev. 423 (2019).
  3. See Andrew J. Cherlin, Labor’s Love Lost: The Rise and Fall of the Working-Class Family in America (2014).
Cite as: Dara E. Purvis, Abortion, Motherhood, and Donald Trump, JOTWELL (July 17, 2019) (reviewing Yuvonne Lindgren, Trump’s Angry White Women: Motherhood, Nationalism, and Abortion, __Hofstra L. Rev. __ (forthcoming, 2019), available at SSRN), https://family.jotwell.com/abortion-motherhood-and-donald-trump/.

The Space In Between

Naomi R. Cahn, Revisiting Revocation upon Divorce?, 103 Iowa L. Rev. 1880 (2018).

Professor Naomi Cahn undersells her recent Iowa Law Review article, Revisiting Revocation upon Divorce? (Revisiting Revocation), when she concludes it by saying that “this Article contributes to the ongoing conversations about the relationship between decedents’ intent, formality, and function in trusts and estates law.” (P. 1949.) While Revisiting Revocation surely makes the contribution that Cahn describes, it also does considerably more. In revisiting the increasingly common and expanding state rule that divorce revokes any transfers of probate (and sometimes non-probate) (P. 1887)) assets to a former spouse as well as to a former spouse’s family members, (P. 1886) Cahn contributes to the growing literature on the legal “spaces in between” two binaries in the areas of intimate and family life. Other scholars, including Cahn, have investigated the legal spaces in between (or outside of) the perceived extremes of marriage and non-marriage1 and of male and female.2 Here, Cahn devotes her attention instead to the legal space in between the perceived extremes of marriage and divorce. In so doing, Cahn sheds light on one of the lesser-known—but tremendously important—ways in which the law treats marriage as a relationship that differs in kind from other species of relationships and as an event that differs in kind from other life events.

The main subject of Revisiting Revocation is the rule that “a final divorce settlement or annulment of a marriage revokes all provisions in the will in favor of the former spouse.” (P. 1886.) Adopted “in almost all U.S. states,”((P. 1886) the revocation upon divorce rule has expanded over time, applying in some states today to probate as well as to nonprobate transfers and covering even “the ex-spouse’s family members.” (P. 1887.) The rule assumes that while I might like my sister-in-law enough to include her in my will while I am married to her sister, my testamentary benevolence vanishes upon divorce, which apparently severs all property ties between certain individuals that arise through marriage. (An interesting counter-example in this regard is incest law, which in some states continues to apply to affinity-based relationships even when the very reason for the incest prohibition—marriage—goes away through either divorce or death).3 While technically a rebuttable presumption, Cahn shows that the revocation upon divorce rule is “rarely rebutted” (P. 1891) in most states and “appears virtually irrebutable” (P. 1889) in some. She tells the story of Jesse and Virginia Lee Suiters, who were married for forty-one years (and separated pursuant to a separation agreement for the last ten of those years). (Pp. 1889-90.) Jesse Suiters died shortly after the couple divorced, and his will, which was drafted while Jesse and Virginia Lee were separated (and had been for seven years), devised his residuary estate to “Virginia Lee Suiters.”(P. 1889.) Nevertheless, because of the state’s revocation rule, a Maryland court declared that Virginia Lee was not an eligible beneficiary of Jesse’s residuary estate. (P. 1889.) Cahn tells similar stories where courts have applied their state revocation upon divorce rules in ways that “rendered the decedent’s intent irrelevant.” (P. 1890.)

After discussing the rule and its near “irrebutability,” Cahn turns to the tension that exists between the rule’s underlying assumptions and recent trends in family law, including trends favoring a “therapeutic” (P. 1893) and “collaborative” (1895) (rather than an adversarial and antagonistic) model of divorce as well as trends favoring shared parental decision-making and caretaking (rather than assignments of “custody” to one parent and “visitation” to another). (P. 1894.) In addition, Cahn argues that the revocation rule exists in tension with her own empirical research and with emerging sociological findings, both of which suggest that “ex-family members sustain[] strong ties” (P. 1895) after divorce and that “divorce might not necessarily dissolve kinship ties” relating to property and inheritance. (P. 1896.) She also points out some of the rule’s “disparate impacts” (Pp. 1898-1903) based on gender, class, and race, and considers alternative approaches in non-U.S. jurisdictions, many of which “continue to adhere to a system in which divorce has no effect” (P. 1903) on probate and non-probate transfers to former spouses and their families. For all of these reasons, but particularly because of the rule’s disconnect with the key animating principles of property law (honoring testator intent) and family law (encouraging collaboration between ex-spouses after divorce), Cahn advocates reform of some kind, including more extreme approaches (like abolishing the presumption altogether) (P. 1907) and less extreme alternatives (including “a more liberal interpretation to the statutory language” surrounding the presumption’s rebuttal). (P. 1909.)

Revisiting Revocation’s look at property law’s revocation rule partakes of a much longer narrative about the extent to which the law—and property law in particular—has regulated the family in the shadow of ideas and ideals about marriage and the marital family. It is little surprise that many of the Supreme Court’s “illegitimacy” cases from the 1970s concerned property law and its regulation of the non-marital family.4 For a long time, state intestacy laws prohibited non-marital children from inheriting from their parents, and especially from their putative fathers (and vice versa);5 some states even voided testamentary bequests from parents to certain non-marital children6 as well as inter vivos and causa mortis transfers of certain property between unmarried persons.7 In cases contesting these and similar laws, courts flagrantly undermined the so-called touchstone of the law of wills—effectuating testator’s intent—in an effort to uphold an image of the family that was at once marital and monoracial.8

Today, we often talk about the ways in which the law—and especially family law and property law—reflects a respect for “private ordering” over “state moralizing” in our most intimate domains. Cahn’s Revisiting Revocation reminds us that the “private ordering” interpretation of property law and family law is incomplete, but one piece of a much more complicated mosaic. As it did in the past, the law today continues to undermine property-based private ordering in order to promote a particular image and understanding of the family. To be sure, the revocation rule could stem from something less objectionable and more administrative: the belief that divorced spouses would have changed their wills to reflect their true intentions, but simply forgot to. On this view, the revocation rule is a better proxy for testator intent than no rule at all. As Cahn points out, however, recent empirical work by Professor Adam Hirsch belies the “administrative convenience” interpretation of the revocation rule, as Hirsch has found that close to two-thirds of divorcing spouses “did not want to disinherit entirely their former partners.”9 In other words, when polled at likely the most acrimonious phase of their relationship, most people favored at least some property transfers to former spouses.

The revocation rule likely persists, then, not because it is thought to approximate testator intent, but rather for three reasons. First, the rule reflects and reproduces our belief that marriage (and quasi-marriage in some jurisdictions)10 is different not just in degree but in kind from other relationships. Second, the rule reflects and reproduces the belief that a breakdown in the marriage co-exists with a breakdown in the personal and emotional bonds that preceded it. While this might be true in some cases, it surely is not true in all; indeed, some spouses might divorce because of marriage (and its institutionalization of romance) rather than in spite of it, a possibility which problematizes the revocation rule’s use of divorce as a proxy for emotional disconnection. Third, the rule reflects and reproduces our general inability to envision a space, even an uncomfortable and counterintuitive space, in between (or outside of) perceived extremes. In this case, those perceived extremes are marriage and divorce, and the interstitial space a place where couples are not married but not quite “divorced”—in all senses of that term—either.


Editor’s note: For an earlier review see Solangel Maldonado, “Renegotiated Families” and Donative Intent, JOTWELL (April 26, 2019).

  1. See, e.g., Albertina Antognini, The Law of Nonmarriage, 58 B.C. L. Rev. 1, 59 (2017); June Carbone & Naomi Cahn, Nonmarriage, 76 Md. L. Rev. 55 (2016).
  2. See Jessica Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894 (2019).
  3. See, e.g., Mass. Gen. Laws ch. 207, §3 (2018) (stating that the incest “prohibition … shall continue notwithstanding the dissolution, by death or divorce, of the marriage by which the affinity was created, unless the divorce was granted because such marriage was originally unlawful or void”). On this view, the designation of “family” created by formal marriage does not go away upon the “end” of formal marriage.
  4. See, e.g., Lalli v. Lalli, 439 U.S. 259, 268-69 (1978) (upholding a paternal illegitimacy classification in state intestacy law on the ground that “[e]stablishing maternity is seldom difficult,” whereas establishing paternity involves “peculiar problems of proof”); Labine v. Vincent, 401 U.S. 532 (1971) (upholding a Louisiana law rendering certain non-marital children ineligible as intestate successors of their fathers’ estates).
  5. See Lalli, 439 U.S. at 259.
  6. See Labine, 401 U.S. at 536 (observing that “[i]n some instances, [a non-marital child’s] father may not even bequeath property to [him or her] by will”).
  7. See id. at 536 n.15 (citing a Louisiana law that prohibited “[t]hose who have lived together in open concubinage” from “making to each other, whether inter vivos or causa mortis, any donation of immovables”).
  8. See, e.g., Kevin Noble Maillard, The Color of Testamentary Freedom, 62 SMU L. Rev. 101 (2009) (discussing these cases).
  9. See Naomi R. Cahn, Revisiting Revocation upon Divorce?, 103 Iowa L. Rev.1880, 1897 (2018) (citing Adam J. Hirsch, Inheritance on the Fringes of Marriage, 2018 U. Ill. L. Rev. 235, 259) (emphasis added). Importantly, though, Hirsch did find that about 45% of divorcing persons wished to disinherit their (soon-to-be) former spouses in part (either by half or more). See Hirsch, supra, at 259.
  10. See Cahn, supra note 9, at 1886 (noting that “couples in registered domestic partnerships or civil unions are covered [by the revocation rule] in some states if the domestic partnership or civil union status confers the same rights as if the couple were married”).
Cite as: Courtney Cahill, The Space In Between, JOTWELL (June 12, 2019) (reviewing Naomi R. Cahn, Revisiting Revocation upon Divorce?, 103 Iowa L. Rev. 1880 (2018)), https://family.jotwell.com/the-space-in-between/.

Families, Inc.

Allison Anna Tait, Corporate Family Law, 112 Nw. U. L. Rev. 1 (2019).

From Dallas and Dynasty to Hobby Lobby, NewsCorp, and the First Family, American culture is replete with the successes (and failures) of family businesses. But interestingly, even as family businesses are touted as the “backbone” of the American economy (P. 5.), they fall outside of the logic of corporate law. Corporate law posits that firms, whether publicly traded or privately held, seek to maximize shareholder profits. That is, corporate law “presupposes rational actors making rational choices” aimed at maximizing shareholder value. (P. 4.) On this theory, it is the individual’s responsibility to make decisions that will protect her interests, economic or otherwise, in the business.

But as Allison Anna Tait makes clear in Corporate Family Law, the assumptions that undergird most businesses do not always hold true for family businesses. As an initial matter, corporate family members do not acquire their interests in the business in the same way that others do. Rather than purchasing shares through bargaining in a market, most family members acquire their interest in the family business through entrepreneurship, or more likely, as bequests and gifts. As importantly, corporate family members do not bargain in the same way as traditional corporate shareholders. Corporate family members are, in the terms of behavioral economics, “bounded” rational actors, whose decisions are not shaped exclusively by a desire to maximize profits. (P. 4.)  Their interests, by contrast, “are enmeshed in a complex set of interlocking relationships that intertwine the personal with the professional.” (P. 4.) As such, their decisions may be impacted by “personal tensions, desires, and loyalties.” (P. 5.)

As Tait explains, corporate law’s underlying assumptions, which prioritize rational actors and efficiency, miss essential aspects of the intimate relationships that shape family businesses. Unlike the neutral efficiency that typically characterizes the behavior of firms, corporate family members’ actions may be fueled by or are subject to affective ties, deep-rooted history, and in some cases, even childhood slights, and petty jealousies. In stark contrast to their traditional corporate counterparts, corporate family members “operate from a position of bounded self-interest; they are idiosyncratic bargainers who may prioritize values over profits and family legacy over maximal efficiency.” (P. 5.) The problem, of course, is that corporate law has failed to appreciate the degree to which family businesses confound the traditional tropes about corporate governance.

Tait aims to rectify the oversight. In Corporate Family Law, she carefully details the various ways that family businesses depart from the traditional corporate law model. And as importantly, she contrasts corporate law’s approach to protecting minority shareholders with family law’s approach to protecting economically vulnerable spouses during dissolution. In the corporate context, majority shareholders frequently have opportunities to exploit the position of minority shareholders. And while some jurisdictions may enforce a heightened fiduciary duty, or impose other obligations on majority shareholders, in order to protect minority interests, the standard for enforcing these protections is often impossibly high. Put simply, corporate law places the onus on individuals to bargain in ways that maximize their interests.

Analogizing the position of majority and minority shareholders in a corporation to spouses in a marriage, Tait draws important comparisons between family law and corporate law. If corporate law emphasizes individual responsibility, then family law takes a far different approach—one that acknowledges the uniquely intimate circumstances in which spouses bargain and the particular vulnerabilities that spouses may assume over the course of the marriage. As she notes, family law makes multiple provisions for protecting the interests of the minority shareholder in a marriage—usually the wife. In divorce, family law protects the economically vulnerable spouse who may have foregone educational and other opportunities to raise a family, support a spouse, or contribute to the family business by valuing his or her contributions to the marriage as part of the equitable distribution of marital property. Likewise, in probate law, elective share provisions ensure that a spouse will not be left destitute after her partner’s death.

While these protections seem unremarkable to those well-versed in family law, as Tait goes on to explain, family law extends these protections to the corporate setting by making them applicable in circumstances where spouses own and operate a business together. On this account, it is not just that family law values the indirect contributions of the more vulnerable spouse in distributing marital property; it is that family law will consider the family business as marital property and allow the more vulnerable spouse to share in the proceeds upon divorce.  Likewise, if one spouse dies intestate and the couple had no children, the surviving spouse may receive the decedent’s shares in the company. If they did have children, many jurisdictions still allow the surviving spouse to take a share, albeit a smaller share.

The comparison between corporate law and family law makes an important point—the family is a unique setting, and, even where it is overlaid with corporate interests, the idiosyncratic nature of family life does not necessarily map on well to the contours and expectations of corporate law. For these reasons, Tait offers a bold prescription.  She seeks to build “a new corporate family law that will benefit all corporate family members.” (P. 48.)

There is much to recommend this article. Tait’s observations about the mismatch about corporate law and family businesses recall earlier scholarly conversations about bargaining in the context of intimate relationships. As alternative dispute resolution and private settlement have become increasingly common in divorce practice, many have noted that the approach of “getting to yes” may be ill-suited to the familial context, where parties are neither dispassionate nor neutral about outcomes.1 After all, in circumstances where the family home or custody of a child is at stake, the parties are unlikely to bargain in ways that maximize efficiency over other values. In this way, Tait extends the insights of Lewis Kornhauser and Robert Mnookin to show that the assumptions built into private ordering may break down in circumstances where the intimacies of family life shape the scope and nature of bargaining.2

The article also makes clear the dangers of doctrinal siloing. By this I mean the tendency of particular doctrinal areas to view themselves as self-contained and insular, rarely acknowledging the degree to which boundaries between doctrinal areas frequently—and uncomfortably—overlap. This caveat is especially pertinent in family law. Although family law often understands itself to be a self-contained domain dealing exclusively with marriage, divorce, and children, Tait makes clear that what may be considered family law is actually quite broad and diffuse. In this circumstance, the law governing corporate entities is a form of family law insofar as it is applied to family-owned businesses. Likewise, Tait shows that corporate law is also unnecessarily siloed. More than a third of Fortune 500 companies are family-owned and controlled. (P. 6.) Yet, the question of families rarely makes its way into corporate law, just as corporations rarely make their way into family law.

It would be interesting to extend Tait’s critique of family law exceptionalism further to examine the marriage exceptionalism that undergirds family law. For example, just as Tait painstakingly dissects the many ways that family law protects economically vulnerable spouses (family law’s equivalent of the minority shareholder), it would be worthwhile to interrogate (or challenge) family law’s prioritization of marriage at the expense of other familial relationships.  What would it mean for family law—and family businesses and corporate law—to prioritize the parent-child relationship, or more intriguingly, the sibling relationship? The possibilities are as intriguingly disruptive and thought-provoking as Tait’s article.

In all, Corporate Family Law is a rich and nuanced exploration of two doctrinal areas that are rarely in conversation. In Tait’s capable hands, the connections between corporate law and family law are clearly articulated, such that we may begin to imagine what would be required to make the law responsive to family businesses and the business of family life.

  1. See Penelope E. BryanKilling Us Softly: Divorce Mediation and the Politics of Power, 40 Buff. L. Rev. 44 (1992) (“explor[ing] power disparities between husbands and wives and the impact these disparities have on the spouses’ relative negotiating abilities.”); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L. J. 1545, 1610 (1991) (discussing the way in which mediation “fails to fulfill its promise as gentler alternative to the adversarial system” and can in fact be “destructive to women.”); Robert H. MnookinDivorce Bargaining: The Limits on Private Ordering, 18 U. Mich. J. L. Reform 1015, 1017 (1985) (discussing, among other things, the capacity of “divorcing spouses [] to make deliberate and informed judgments necessary to decide whether a particular agreement is in their interests.”); Eric Rasmusen & Jeffrey Evans Stake, Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 Ind. L. J. 453, 473 (1998) (“[B]argaining at divorce occurs in the shadow of background rights to alimony, children, and so forth….Background rights accorded women by current law provide women with little protection.”); Jana B. SingerThe Privatization of Family Law, 1992 Wis. L. Rev. 1443, 1540 (“There is substantial reason to suspect that mediation is significantly more likely than adjudication (and lawyer-conducted negotiation) both to reflect and to reproduce power imbalances between the sexes.”).
  2. Lewis Kornhauser & Robert Mnookin, Bargaining in the Shadow of Law: The Case of Divorce, 88 Yale L. J. 950 (1979).
Cite as: Melissa Murray, Families, Inc., JOTWELL (May 17, 2019) (reviewing Allison Anna Tait, Corporate Family Law, 112 Nw. U. L. Rev. 1 (2019)), https://family.jotwell.com/families-inc/.

Purchasing Race; or, The Pursuit of White Sperm and Eggs

Camille Gear Rich, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, __ Minnesota L. Rev. __ (forthcoming, 2019), available at SSRN.

“But not yet have we solved the incantation of this whiteness, and learned why it appeals with such power to the soul; and more strange and far more portentous—why, as we have seen, it is at once the most meaning symbol of spiritual things, nay, the very veil of the Christian’s Deity; and yet should be as it is, the intensifying agent in things the most appalling to mankind.” —Herman Melville1

Consider this breezy narrative published a few years ago in the New York Times: “I chose my son by clicking and unclicking a series of boxes, not unlike online dating. Some days, I’d scroll through all of the redheads. Other days, all of the Jude Law look-alikes….There was no easy way for me to choose from so many flawless (but relatively indistinguishable) men, particularly when this choice would have such a profound impact on both my life and my child’s. [¶] One of them looked like Tom Brady and had a Ph.D. I added him to my cart.”2 Stories like this are increasingly commonplace and seemingly innocuous. That is, until something goes wrong. For Jennifer Cramblett, that moment came when, already pregnant, she decided to order more sperm from a sperm bank so that, down the road, she and her partner could give their baby a biologically related sibling.3 While on the phone placing her order, she encountered a mixup regarding the donor’s identification number: did Cramblett really mean donor number 380, not 330, the receptionist asked? Did Cramblett request an African American donor? Cramblett replied, “‘No, why would I do that? My partner and I are Caucasian.’”4 As it dawned on her that she was likely pregnant with a mixed-race child, Cramblett’s “excitement and anticipation of her pregnancy was replaced with anger, disappointment and fear.”5 Cramblett ultimately sued the sperm bank alleging harms stemming from the sperm bank’s racial mistake.

Cramblett’s personal misfortune reveals an unremarked trait shared by the pool of “flawless,” “relatively indistinguishable,” Jude-Law- and Tom-Brady-like sperm donors in the New York Times story: their whiteness. Some people may see nothing wrong with the practice of selecting sperm or eggs because of the perceived race of the donor. Others may be troubled by the prospect of racially motivated gamete selection but view it as an unfortunate side effect of respecting individual autonomy.6 In her thoughtful and provocative new article, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, Professor Camille Gear Rich challenges these views. She uses Cramblett’s lawsuit against the sperm bank as a jumping-off point to show how the Assisted Reproductive Technology (“ART”) market packages race and produces the discriminatory preferences that ultimately lead to racial subordination. By detailing the market framework for the exercise of supposedly private preferences, Rich calls attention to the ways in which the law can subsidize or alternatively dismantle private discrimination.

Rich begins the article by describing the different ways in which ART providers package and sell race.  This packaging begins far before the point of sale. Donors are screened for “undesirable” traits such as mental illness or a history of incarceration. They are also excluded if they are too short or overweight, or do not have aesthetically pleasing bodies. ART providers also screen based on proxies for intelligence like SAT scores and educational accomplishments. All of these decisions are motivated by the providers’ perceptions of market demands.

The packaging of race takes place within this context. The demand for certain racial backgrounds is higher, resulting in higher payments to donors from those groups, as well as a larger pool of samples for consumers to choose from. For example, although 60% of Americans identify as white, 80% of sperm and eggs come from white donors. These choices are meaningful. The relative overabundance of white gametes means that white consumers are less likely to be challenged to look beyond their group and that non-white consumers might perceive that the ART industry is not for them. Moreover, race is socially rather than biologically based. Providers are ultimately marketing racially-associated phenotypes rather than any essential set of traits. Underscoring the degree to which race is a social construct, while donors are prompted to identify their racial backgrounds, providers actually make the final determination categorizing the gamete donors into specific racial categories. Deciding which phenotypes should be associated with which racial category—for instance, by assigning mixed-race individuals to one or another category—is another way that providers shape racial understandings.

The way in which donor gametes are presented to consumers as products also has pernicious effects. The websites of most major sperm banks typically ask consumers to identify their own race as well as the race of their desired donor, effectively highlighting the centrality of race to their ultimate decision. Results are then filtered by the seller’s predetermined racial categories, suggesting that people with certain phenotypes should naturally be associated with certain racial categories and, more broadly, suggesting that race has a biological basis. Fascinatingly, even whiteness is not immune to the effects of this packaging and commodification. Rich notes that “consumers are being invited into a catalogue of elite whiteness that celebrates whiteness in an artificial and surreal form.” (P. 20.) Donors are on average “taller, more physically fit, more accomplished, and more traditionally beautiful than the general pool of whites in the United States.” (P. 20.) She speculates that this commodified whiteness has several consequences. The purchasing experience reinforces a narrow definition of whiteness. This perception prompts customers to purchase a better version of whiteness rather than seek to replicate themselves. In the process, it reveals the existence of “marginal whiteness”—that there are “more and less privileged versions of white identity”—and suggests that consumers may be responding to fears of marginalization. (P. 21.)

What might be seen as a private racial preference, then, is ineluctably shaped by the ways that clinics and consumers perceive and respond to market forces. By analyzing racial mix-up cases such as Cramblett’s, Rich identifies exactly what consumers believe they have purchased: a family unit that will appear “natural” and will not draw undue scrutiny or inquiry (Pp. 34-36); immunity from having to interact with people from different cultural backgrounds (Pp. 37-38); and the avoidance of exposure to racial discrimination (Pp. 38-39). These consumer expectations reveal that the marketing of race ultimately promotes a “white intra-group esteem system that helps to maintain the white monoracial family norm.” (P. 39.)

If Rich were to end the article at this point, she would already have made an important contribution. But she also devotes attention to analyzing how best to respond to some of these market-facilitated distortions. She does this first by questioning whether reproductive freedom necessarily entails the right to purchase racial essence. She points out that scholars have often conflated the concepts of reproductive freedom with technological developments in the ART market, uncritically accepting that the technologies reflect private choices beyond the reach of the state. But she notes that the state has regulated procreative freedom in order to promote its views in cases and controversies concerning contraception, abortion, and welfare, mostly to the detriment of poorer women of color. (P. 42.) She also argues that equality commitments embodied in the equal protection clause could support state interventions. In the voting context, for example, the Supreme Court rejected the practice of identifying candidates by their race on ballots because such labels could trigger improper considerations of race at a critical moment—in the voting booth. In the affirmative action context, the Court has recognized that racial labeling can interfere with individualized consideration, promoting inequality. Many of these doctrinal developments have emerged in cases with decidedly unprogressive ends, and I remain skeptical that courts would deploy them in a neutral fashion. That said, Rich shows that the arguments are there to be made.

This brings us to Rich’s proposed solutions. She argues that the ultimate goal of any intervention should be to encourage ART consumers to abandon biological concepts of race and look beyond racial categories. (P. 51.) By this point in the article, I was expecting a proposal along the lines of R. Richard Banks’s proposal to prohibit adoption agencies from racially classifying adoptive children in order to facilitate race-based selection.7 Rich takes a different approach. Perhaps recognizing that any blanket ban on the marketing of race would fail if consumers could continue to look at donor photos and shop based on racially salient features like hair or eye color, Rich focuses on channeling consumer behavior. First, she proposes that the U.S. restrict the importation of gametes from European countries like Denmark and the Czech Republic, disrupting American consumers’ global search for white gametes and opening the possibility that supply would come instead from a more diverse domestic pool of donors. (P. 52.) Second, she proposes that clinics should be required to post a series of warnings and disclaimers about race—for instance, that there is no genetic basis for race; that the mechanisms by which phenotypes are transmitted are not fully understood; and that the phenotypes of a given donor are not guaranteed to be present in the donor’s child—to change consumer behavior. (P. 54.) And third, she proposes that the government could offer subsidies to ART providers that do not use race to characterize gametes. (P. 55.)  Although these interventions would not stop consumers from selecting phenotypes associated with race, they would likely result in consumers being exposed to donors from different backgrounds and invite consumers to recognize similarities across race.

The concerns addressed by Rich in this article connect two stories that dominated the news as I drafted this review: first, the mass shooting of Muslims in New Zealand, which sources suggest was motivated by white supremacy, in particular, belief in the white race’s biological distinctiveness;8 and second, the college admissions scandal, which, at its heart, is about purchasing, and thereby reproducing, privilege.9 The ART market contributes to the notion that whiteness can be perfected and that race—like other markers of prestige—has a price. Rich joins scholars like Banks and Russell Robinson10 in showing that racial preferences within the intimate realm are rarely ever purely private or harmless. Especially at this moment, we ought to consider very seriously Rich’s argument that marketing race is wrong and that the law should do something about it.

  1. Herman Melville, Moby-Dick 169 (Harrison Hayford & Hershel Parker eds., 1967).
  2. Dawn Bovasso, An Open Egg Donor, Now Reversing the Role, N.Y. Times, Feb. 19, 2015.
  3. Complaint at ¶ 13, Cramblett v. Midwest Sperm Bank, LLC, 2014 WL 4853400 (Ill. Cir. Ct. Sept. 29, 2014) (No. 2014-L-010159).
  4. Id. ¶ 15 (emphasis added).
  5. Id. ¶ 17.
  6. See, e.g., Dov Fox, Race Sorting in Family Formation, 49 Fam. L.Q. 55, 66 (2015); Dov Fox, Choosing Your Child’s Race, 22 Hastings Women’s L.J. 3, 6-8 (2011).
  7. See R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents’ Racial Preferences Through Discriminatory State Action, 107 Yale L.J. 875, 883 (1998) (proposing to end the practice of facilitative accommodation for white adoptive parents in furtherance of the goal of ridding the adoption system of racial preferences). To be clear, Banks was talking about the actions of public agencies. I understand, and Rich acknowledges, that the pathway to achieving this outcome would be different when thinking about private actors. (See P. 47).
  8. See, e.g., Nellie Bowles, “Replacement Theory,” a Racist, Sexist Doctrine, Spreads in Far-Right Circles, N.Y. Times, Mar. 19, 2019.
  9. See, e.g., John Eligon & Audra D. S. Burch, “What Does It Take?”: Admissions Scandal Is a Harsh Lesson in Racial Disparities, N.Y. Times, Mar. 13, 2019.
  10. See, e.g., Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787 (2008) (exposing the ways that online dating services facilitates race-based selection of intimate partners).
Cite as: Kaiponanea Matsumura, Purchasing Race; or, The Pursuit of White Sperm and Eggs, JOTWELL (April 11, 2019) (reviewing Camille Gear Rich, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, __ Minnesota L. Rev. __ (forthcoming, 2019), available at SSRN), https://family.jotwell.com/purchasing-race-or-the-pursuit-of-white-sperm-and-eggs/.

A New Vision for LGBT Rights Critique and Reform

Libby Adler’s remarkable 2018 book, Gay Priori, joins a long list of academic critiques of the LGBT rights movement. But Adler sets herself apart in three critical ways: First, Adler does not blame LGBT advocates but instead locates advocates in a broader framework of “LGBT equal rights discourse” that comprehends only some harms and envisions only some solutions. Second, Adler is not satisfied with merely critiquing the prevailing approach to LGBT rights. Rather, she translates her theoretical arguments into an affirmative vision for reform—a vision that keeps faith with law. Third, Adler’s prescriptive claims do not sound in radical transformations that most LGBT advocates would dismiss as impractical. Instead, she offers realistic, grounded, and detailed forms of intervention that LGBT advocates would support and can implement. Gay Priori is a powerful call to action that manages to be both theoretically sophisticated and practically oriented. It is perhaps the most careful, grounded, and constructive critique of mainstream LGBT rights work one can read.

First, consider Adler’s treatment of what she terms “LGBT equal rights discourse.” A familiar set of practices, narratives, priorities, and frames shapes law reform on behalf of subjects who are understood to have a minority identity based on sexuality and/or gender identity. With the emphasis on judicial neutrality and formal equality in constitutional and antidiscrimination law, marriage access and nondiscrimination mandates appear as logical priorities. LGBT equal rights discourse, Adler observes, also resonates with neoliberal impulses toward privatization and personal responsibility, again making understandable the focus on marriage and employment nondiscrimination.

When problems are framed in terms of LGBT identity and reforms are imagined in the registers of equality and nondiscrimination, the range of issues and responses is relatively narrow. Wide-ranging problems that affect vulnerable LGBT individuals, but that are not limited to LGBT populations and are not captured by explicit anti-LGBT sentiment, can be obscured. Or, if they are noted, the response may take the form of LGBT-specific solutions that fail to meaningfully address the problem. For example, the focus on nondiscrimination may occlude the high rates of homelessness among LGBTQ youth. If the homelessness problem is identified, it may be difficult to manage a workable solution without moving outside of conventional LGBT frames.

Even if I am not entirely persuaded by Adler’s relatively comprehensive characterization of LGBT rights work as wedded to “formal equality,”1 her diagnosis and critique are powerful. Adler’s treatment of those doing the LGBT rights work she criticizes is especially noteworthy. Avoiding a common mistake in academic critiques of the LGBT rights movement, Adler makes clear that the problems she identifies are not advocates’ fault.2 She expressly disclaims any “charge of nefarious intent to harm or exclude” by “[t]he well-intentioned leaders of the LGBT law reform movement.” (P. 4, 7.) Instead, “even our most savvy and sophisticated leaders…are ‘subjects’, too; they are…shaped by the same knowledge that shapes the rest of us.” (P. 140.) The state of affairs that Adler describes “can be critiqued and interrupted,” but it requires “conscious deliberation.” (P. 7.)

One should not underestimate the significance of this move. Adler’s analysis allows us to appreciate the constraints under which advocates operate and to intervene constructively—recognizing the good faith in which both the advocate and critic are operating. This is crucial, because Adler does not limit her intervention to critique. Rather—and this is the second important distinguishing feature of the book—she offers an affirmative vision for law reform going forward.

Adler’s vision of reform grows out of and takes cues from her powerful critique. She urges “a reconceptualization of the relevant constituency,” shifting the priority away from “LGBT people as an undifferentiated, rights-bearing identity group seeking equality,” and toward “vulnerable LGBTQ subpopulations seeking the best possible bargains for themselves in a world in which their prospects and decisions are heavily conditioned by law.” (P. 178.) This shift, Adler shows, requires moving away from a recognition model of LGBT advocacy (á la Nancy Fraser’s work)3 and toward a distributional model (á la Judith Butler’s work).4 Adler’s distributional approach draws on legal realism and critical legal studies. Resisting the view that law intervenes against some natural baseline, Adler seeks to uncover the background legal conditions that shape our interactions and structure the alternatives available to us.

Unlike many prominent critiques of the LGBT movement, Adler does not give up on law. She rightly points out that what are often framed as critiques of “law” are in fact critiques of “litigation,” or even a certain type of litigation—the impact cases like the ones used to pursue marriage equality. Law reform, in Adler’s vision, should be approached not as a top-down enterprise but instead as a bottom-up endeavor, with advocates learning from and responding to actors on the ground. Accordingly, Adler directs the law reformer’s attention toward “the immediate legal conditions in a local population’s experience.” (P. 170.) Rather than see a single broad-scale intervention as an answer to the problems facing LGBT people, Adler looks across various domains, finding “obstacles to work, safety, nutrition, housing, health care, and so on,” and seeking “low-profile” interventions. (P. 170.)

At times, Adler may underestimate the extent to which LGBT movement leaders are already acting in ways she envisions. For example, in the family law space, advocates are pressing parentage reform that does not merely facilitate queer family formation but attends to background conditions that constrain the efforts of LGBT individuals with fewer resources. Lack of access to healthcare may lead some same-sex couples to engage in donor insemination without the oversight of medical professionals. In response, LGBT advocates have worked to remove physician assistance requirements from laws regulating donor insemination. Reforms of this kind benefit not only LGBT individuals, but also others who rely on donor gametes to have children.

Like these family law efforts, the interventions Adler advocates are small-scale and practical. Here is the third critical feature of Adler’s contribution. When some critics of marriage equality work have moved into more prescriptive registers, they have argued that the LGBT movement should have pursued wide-ranging reforms—for instance, universal healthcare rather than marriage as a route to employer-provided health insurance.5 Universal healthcare would be a good thing (and today is more politically plausible), but advocates made decisions in light of constraints and limitations in the legal and political context they occupied. Adler, it seems, appreciates this. Instead of leveraging her critique in ways that lead to proposals that are impractical in the current moment, she supplies detailed elaborations of grounded and practical interventions.

Adler offers the case of LGBTQ youth to demonstrate the type of reform efforts she imagines. Vulnerable youth find their choices constructed—and constrained—by legal conditions that exist across a range of substantive areas that are generally not understood as “LGBT law.” The law’s privileging of parental authority, the regulation of the foster care system, the legal constraints placed on minors seeking to engage in work and commercial transactions, the policies of homeless shelters, policing practices, and the criminalization of sex work together influence the path of LGBTQ youth. Making relatively small changes in these various domains could dramatically affect the alternatives available to LGBTQ youth navigating difficult circumstances.

Consider a concrete illustration. Many assume that parents naturally exercise authority over their children. On this view, the state’s unwillingness to interfere with parental control over LGBTQ children simply represents the state’s recognition of and deference to a pre-political state of affairs. But, as Adler shows, this view is wrong. Law is in fact intervening when it makes the decision to vest parents with authority over their children that allows them to engage in homophobic and transphobic parenting. One could imagine regulating parents in ways that conceptualize certain forms of homophobic and transphobic parenting as the type of abuse and neglect prohibited by the state. Adler makes similar observations with respect to foster parenting. As Jordan Woods argues, the state could affirmatively protect LGBTQ children entering foster placements by requiring LGBTQ-affirming parenting.6 But instead, in the vast majority of states, the law does little to prevent children from being placed in hostile households. These background legal conditions shape and limit the range of alternatives available to LGBTQ youth when parents are unwilling to accept their children’s sexual orientation or gender identity. Constraining parental authority and requiring foster parents to be LGBTQ-affirming would alter the conditions under which LGBTQ youth make decisions and could significantly improve the material circumstances of some LGBTQ youth.

Other background legal conditions, such as those regulating minor’s access to housing and credit, shape the path of vulnerable LGBTQ youth. As Adler explains, “the laws conditioning parenting practices combined with the laws conditioning youth self-support structure survival alternatives for youth. The real consequence of these restrictions on youth is to push them into the informal, or underground, economy.” (P. 200.) Sex work is a critical part of that economy. As one study suggests, “between a quarter and a half of homeless youth engage in sex work during their period of homelessness.” (P. 201.)

Sex work provides a useful way to see how Adler’s prescriptive claims are importantly distinct from other critiques of LGBT rights work. Scholars have criticized the marriage equality campaign for repudiating the sex-positive impulses that formed the basis for queer organizing. As Michael Warner famously argued, even though “[g]ay political groups owe their very being to the fact that sex draws people together…, often the first act of gay political groups is to repudiate sex.”7 The marriage equality movement, on Warner’s view, benefitted “[t]hose whose sex is least threatening,” while “[t]he others, the queers who have sex in public toilets, who don’t ‘come out’ as happily gay, [and] the sex workers…are told…that their great moment of liberation and acceptance will come later.”8 In this light, sex work—decriminalization? labor regulation?—appears as a priority for a sex-positive queer agenda.

Adler’s approach to sex work, in contrast, is part of a distributional intervention. LGBTQ youth exchange sex for money, shelter, and food, and their bargaining posture is shaped by legal rules and enforcement decisions. Appreciating how vulnerable LGBTQ youth are situated in the bargaining environment could lead lawmakers to ask whether particular interventions help or hurt that population. Do prostitution-free zones make sex work more dangerous? Is the same true for the criminalization of buying sex? What about enforcement actions against online platforms for the sale of sex? Through Adler’s lens, the criminal prohibition on the sale of sex is problematic, not merely because it trades on the stigma of sexual activity that defies conventional norms, but because it makes vulnerable LGBTQ youth less safe and limits their income. Further, enforcement with respect to low-level crimes associated with sex work delivers LGBTQ youth to the criminal system. As Alexandra Natapoff’s arresting new book, Punishment Without Crime, reveals, entry into the misdemeanor system can dramatically affect one’s ability to survive—to work, find housing, and pay for necessities—for the rest of one’s life.9 Natapoff’s central concerns with race and class meet Adler’s focus on sexuality and gender, demonstrating what intersectionality means in practice for a movement committed to the wellbeing of all LGBTQ populations.

Ultimately, Adler offers perhaps the most compelling bridge between theory and practice in the LGBT space. Resisting the stark distinction between scholarly critique and movement lawyering that often pervades debates of this kind, Adler shows why “[t]he continuous practice of critique is vital to law reform.” (P. 215.) This is not to suggest that there are not barriers to the type of reform efforts Adler endorses. Given that LGBT legal organizations rely on funding from donors who are mostly wealthy and white, those donors must be made to see the work that Adler envisions—work that generates fewer headlines and has less concrete benefit for the donor base—as worthy of pursuit. Efforts of this kind are not impossible. Adler relies extensively on LGBT poverty research produced by the Williams Institute (P. 176), an organization for which I served as Faculty Director from 2015 to 2017. The Williams Institute’s donors grew to understand the importance of poverty work as an LGBT priority and have financially supported that work. Surely donors at other LGBT organizations (some of whom are also Williams Institute donors) are moving toward greater support for poverty work and other efforts aimed at the most vulnerable members of the LGBT population. With this in mind, Gay Priori should be required reading not only for scholars of law and sexuality and lawyers leading LGBT organizations, but also for those who identify with, support, and fund LGBT causes.

Douglas NeJaime is the Anne Urowsky Professor of Law at Yale Law School.

  1. See Douglas NeJaime, Differentiating Assimilation, 75 Studies in Law, Politics, and Society 1, 4 (2018) (in the LGBT context, showing how, “[t]hrough claims premised on sameness and inclusion, features that mark the excluded group as different can be subtly integrated into law” and “institutions can be reconstituted in ways that reflect the distinctive aspects of those long subject to inclusion”).
  2. See, e.g., Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 65 (2011) (asserting that “[t]he gay rights agenda…has come to reflect the needs and experiences of…[t]he mostly white, educationally privileged paid leaders” of nonprofit legal organizations and that “the lesbian and gay rights agenda has shifted toward preserving and promoting the class and race privilege of a small number of elite gay and lesbian professionals while marginalizing or overtly excluding the needs and experiences of people of color, immigrants, people with disabilities, indigenous people, trans people, and poor people”).
  3. See Nancy Fraser, From Redistribution to Recognition? Dilemmas of Justice in a “Postsocialist Age,” in Adding Insult to Injury: Nancy Fraser Debates Her Critics 9, 20-22 (Kevin Olsen ed. 2008).
  4. See Judith Butler, Merely Cultural, in Adding Insult to Injury: Nancy Fraser Debates Her Critics 42, 50-52 (Kevin Olsen ed. 2008).
  5. See, e.g., Spade, supra note 2, at 61.
  6. See Jordan Blair Woods, Youth, Equality, and the State (draft on file with author).
  7. Michael Warner, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life 47-48 (1999).
  8. Id. at 66.
  9. Alexandra Natapoff, Punishment Without Crime (2018).
Cite as: Douglas NeJaime, A New Vision for LGBT Rights Critique and Reform, JOTWELL (March 29, 2019) (reviewing Libby Adler, Gay Priori: A Queer Critical Legal Studies Approach to Law Reform (2018)), https://family.jotwell.com/a-new-vision-for-lgbt-rights-critique-and-reform/.

Family Courts as Criminal Courts: A Story of Origins

Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections.

Katz tells this story in three steps. The first step is the gradual criminalization of family non-support in the late nineteenth century. States adopted criminal penalties for family non-support, usually at the misdemeanor level, at the behest of overburdened charities using a discourse of paternal moral failures reminiscent of the “deadbeat dads” of more recent welfare reforms. Some criminalized non-support as a felony, but in most states misdemeanor non-support was judged sufficient to qualify for extradition, a tool thought of as necessary in an era of increasingly mobile family deserters.

The second step was the creation of specialized domestic relations courts and the “symbiotic growth of family courts and probation.”6 Domestic relations courts lightened the burden of already clogged criminal dockets and made speedier the enforcement of non-support laws through the heavy use of the probation departments or the government prosecutor. Despite resistance to the creation of family courts from various stakeholders, including the judges who thought that whoever presided over such hearings would “have to be descended straight from the angels”,7 the trend was largely successful, with specialized divisions spreading throughout the country. Probation, an institution considered today a hallmark of criminal procedure, was considered to be at the center of family court jurisdiction. Divorce, today’s staple of family court jurisdiction, did not become part of the family court’s jurisdiction until the second half of the twentieth century. In other words, some elements of modern family law and modern criminal law were delivered as conjoined twins, inextricably linked.

The third and final step in her account describes a historical process whose endpoint, the transformation of domestic relations courts into courts of civil jurisdiction, is so foundational to modern understandings of family law that the Supreme Court took it pretty much at face value in 2011’s Turner v. Rogers.8 In this part of the article, Katz focuses on the nationally influential New York Family Court Act of 1933 that wrestled domestic relations and juvenile delinquency cases away from the lower criminal court system and created a standalone court, whose powers, however, continued to heavily rely on the criminal law system. Notably, incarceration for contempt, at stake in Turner, remained a tool regularly used by the judges, in terms identical to the straightforward punitive jail term for nonsupport.

While many elements of this story have been amply told by historians before, Katz’s article brings to the foreground several that can potentially shift contemporary understandings of family law jurisdiction as a civil, certainly in the child support enforcement aspects. To begin with, Katz argues that the shift of family courts from criminal to civil jurisdiction that began happening around the ninety thirties was not only partial; it was intentionally so. In other words, reformers desired to retain the most effective pieces of criminal jurisdiction, including incarceration and probation, without the delays and procedural safeguards of the criminal law machinery. The civil approach, which still allowed incarceration for non-support and incorporated the threat of extradition, proved to be highly effective in inducing compliance with support orders. Presaging Turner, several courts that dealt with constitutional challenges to the domestic courts’ jurisdiction relied on the “civil” tag to justify withholding procedural protections such as the right to a jury trial.As Katz highlights, this meant that “defendants faced state personnel and powers typical of the criminal context, but without criminal procedure protections.”9

As Katz points out, this history also complicates the field’s persistent notions of privacy as a foundational, operative concept in family law that only later gets challenged through the operation of domestic violence enforcement and women’s constitutional equality rights. Katz highlights instead that at the very creation of domestic relations courts, the state employed a vast bureaucracy charged with close supervision and surveillance of families. In addition, and by contrast to Jacobus tenBroek’s classic account of a dual family law,10 one for the well-off and one for the poor, Katz suggests that family law at its inception in the twentieth century was intensely public and interventionist “at a range of income levels.”11 This last claim could probably benefit from more extensive documentation, since Katz recognizes that the vast majority of child-support debtors came from the recent immigrant populations, such as the Jews and the Irish in New York, or from the African-American community in the south.

The final part of the article directly engages with the implications of this history for Turner, highlighting the circularity entailed in relying on the label “civil” for determining the outcome of a case which essentially asked the court to decide whether the label “civil” should be taken at face value. Given the prior court history emphasized by Katz, the Supreme Court’s formalist reliance on the label becomes even more problematic. As an alternative, Katz suggests that a graduated approach might be more appropriate with constitutional protections against state action triggered when: 1) incarceration is threatened; 2) the state’s involvement goes beyond the interest in ensuring the fair administration of justice; and 3) government employees other than the judges control various stages of the proceedings. As is often the case with new proposed doctrinal solutions to doctrinal problems, Katz’s suggestion raises perhaps an equal number of questions as the ones she resolves. What does “beyond the interest in the fair administration of justice” mean exactly? Does requirement number one combined with requirement number three mean that many of the typical scenarios of welfare state intervention, including threatened removal of children for abuse or neglect, will now trigger constitutional law protections? More broadly, why try to solve what seems to be essentially a legal policy question by re-establishing a doctrinal test that at some level is bound to reproduce a formalist distinction between the civil and the criminal?

Overall, Katz has contributed a piece of legal history that is important and compelling. As I sat in the Family Court division of the DC Superior Court with my students recently, and watched a steady stream of poor, pro se, minority litigants attempt to convince the judge that they deserved custody in a legal language most clearly did not understand, I thought that the story of family courts as poor people’s courts has many more episodes that need telling.12 Katz’s article certainly complicated the historical picture in a way that is interesting and bound to provoke more discussion within the field.

  1. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Cynthia Godsoe, Redefining Parental Rights: The Case of Corporal Punishment, 32 Const. Comment. 281 (2017); Jeanie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U.L. Rev.  285 (2016).
  2. See, e.g., Suk, supra note 1; Dennis, supra note 1.
  3. See, e.g., Murray, supra note 1.
  4. See, e.g., Anna R. Igra, Wives Without Husbands: Marriage, Desertion, &Amp; Welfare In New York, 1900-1935 (2007); Michael Willrich, City Of Courts: Socializing Justice In Progressive Era Chicago (2003); Amy J. Cohen, The Family, the Market, and ADR, 2011 J. Disp. Resol. 91, 100-103 (2011).
  5. With exceptions as Katz notes. See, e.g., Amy J. Cohen, supra note 4; Janet Halley, What Is Family Law?: A Genealogy Part II, 23 Yale J.L. & Human. 190 (2011).
  6. P. 22.
  7. Want Special Court for Domestic Woes, N.Y. TIMES, Jan. 29, 1909, at 4. Cited in Katz, P. 29.
  8. 564 U.S. 431 (2011).  In Turner, the U.S. Supreme Court held a state must provide safeguards to reduce the risk of erroneous deprivation of liberty in civil contempt cases, such as child support cases.  The Court’s decision, however, stopped short of requiring states to provide counsel to indigent defendants in civil contempt child support cases.
  9. P. 43.
  10. Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status: Part I, 16 Stan. L. Rev. 257 (1964).
  11. P. 8.
  12. Elizabeth L. MacDowell, Reimagining Access to Justice in the Poor People’s Courts, Geo. J. On Povert L. & Pol’y 473, 478-79, 488-94 (2015).
Cite as: Philomila Tsoukala, Family Courts as Criminal Courts: A Story of Origins, JOTWELL (January 8, 2019) (reviewing Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN), https://family.jotwell.com/family-courts-as-criminal-courts-a-story-of-origins/.

Need, Dependency, and Choice

Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev. 1983 (2018), available at SSRN.

Emily Stolzenberg’s excellent article, The New Family Freedom, outlines the tension within American society in general, and American family law in particular, between protecting individual choice (autonomy), on one hand, and having private (rather than collective) responsibility for dependency, on the other.

Choice and privatized dependency can conflict: if individuals are responsible for others only when, and to the extent that, they so choose, many dependent persons will not be adequately cared for. As Stolzenberg points out, the conflict between the two principles may be strongest when considering parental obligation, cohabitation, and alimony.

In what the author describes as “strict liability for sex” (P. 2007), fathers have been held subject to child support duties even where conception arose from statutory rape or significant fraud. Even putting aside those extreme cases, the dependency principle would support imposing parental obligations arising from a sort of tort analysis in which men “assume of the risk” (P. 2008) for any children resulting from having sex. Choice – whether through voluntary intercourse, the decision to use IVF or surrogacy (Pp. 2013-14), or voluntary paternity affidavits (P. 2014) – is characterized and offered as the grounds for imposing parental obligations, not as a justification for opting out. It is, as Stolzenberg characterizes it (P. 2013), a “one-way ratchet.” In this area of family law, the imperative to support dependent children overrides in part the autonomy interests of adults.

The legal view of cohabitation tends towards the other pole of protecting choice.  Vulnerable adults in romantic relationships are protected only if they chose to marry, or if consent for protection was shown through an express contract. As Stolzenberg’s article shows, courts sometimes allow former cohabitants to recover under a theory of implied contract, but that approach looks bad viewed either from the perspective of autonomy or dependency: the recovery given to vulnerable ex-partners tends to be inadequate, and when it is given, the evidence of choice justifying the outcome tends to be flimsy.

As Stolzenberg reports: “Strict-choice states, which deny recovery when intimate partners fail to formalize their family intentions, end up elevating the richer cohabitant’s property rights over the poorer cohabitant’s claims for economic justice.” (P. 2023.) However, the question might be pressed, what are the grounds of “the poorer cohabitant’s claim[] for economic justice”? With marriage, there is an argument (clearest in community property states) that getting married is entering a partnership with equal sharing; that is just the nature of the institution. Outside of marriage, the arguments tend to be in terms of need, sacrifice, unjust enrichment, and reasonable expectations. The moral claim of need is significant, but some might respond that it is society in general that owes support to its neediest, and that intimate partners should carry the primary duty only if they have voluntarily shouldered responsibility or are in some significant way at fault (a tort-like analysis, like Stolzenberg’s “assumption of risk” argument discussed above). Of course, there are clear cases of unjust enrichment, in cohabitation as in marriage: e.g., when one partner supports the other through professional school, and immediately thereafter the couple splits up. Many states recognize short-term alimony, at least for formerly married couples, in such circumstances. However, mostly the claims from long-term cohabitation involve partners who give up their careers to take care of the home and children, while their partners further their careers and earning capacity. While such relationships are ongoing, the couple generally shares the benefits. What is the basis for a claim for support, or for the equitable redistribution of property, after the couple splits up? Perhaps much comes down to (reasonable) expectations. Katherine Franke has argued that, at least with many same-sex couples, there is no expectation of sharing beyond the end-point of the relationship.1 In any event, once we are speaking about the parties’ expectations, we seem to be back in the arena of choice.

Given the sharp dichotomy between married and non-married couples in American family law, some readers may be surprised by the trends in alimony law that Stolzenberg chronicles. Like the law of cohabitation, alimony law seems to be moving towards an official view that former partners are expected to support themselves. As the article describes (Pp. 2033-2034), there are economic and partnership theories that can justify indefinite alimony (at least for long-term marriages where one partner has made significant career sacrifices), but these seem to have become insufficient to persuade payors – and their representatives in state government. (Pp. 2034-2037.) Many states legislatures (and state courts) now favor short-term alimony or no alimony at all.

As with cohabitation, so with alimony, we need to consider the underlying justifications. At the beginning of the article (P. 1986), Stolzenberg refers to In re Marriage of Wilson.2 In that case, a woman became permanently disabled during a marriage of less than six years.The disability occurred due to an injury and subsequent infection, and was not related to the marriage, the length of the marriage, or her husband’s behavior. At divorce, the court imposed alimony, but then terminated it just short of five years later. The former wife was in great need, but arguably, her claim for assistance should be against society generally, rather than against her former husband.

Stolzenberg ends the article with proposed reforms which she admits are “incremental” and “partial” (P. 2038): e.g., “eliminating or reducing paternal child-support liability in cases of less-than-voluntary sexual conduct” (P. 2045), offering different rules for cohabitation based on duration (P. 2048), and favoring property redistribution over alimony as a way of responding to long-term need. (P. 2049.)

The article forcefully displays the tension between choice-based law and privatized dependency. Allowing family obligations to depend on a clear showing of consent is likely defensible only (if ever) in a society that offers greater collective responsibility for responding to dependency. And as Stolzenberg observes, “[r]eforming family law begins with rethinking our broader political economy, but it does not end there.” (P. 2052.)

  1. See Katherine Franke, Wedlocked 209-26 (2015).
  2. 201 Cal. App.3d 913, 247 Cal. Rptr. 522 (1988).
Cite as: Brian Bix, Need, Dependency, and Choice, JOTWELL (November 1, 2018) (reviewing Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev. 1983 (2018), available at SSRN), https://family.jotwell.com/need-dependency-and-choice/.

Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law

Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016), available at SSRN.

The Supreme Court’s ruling in Obergefell v. Hodges1 was a watershed moment not only in the history of the LGBT movement, but also in the relationship between family law and constitutional law. In the two years since it was decided, the ruling has become the subject of insightful commentaries from many of the legal academy’s leading scholars. This jot highlights one such article by Susan Frelich Appleton that merits special attention from scholars working in the fields of family law and constitutional law.

Appleton’s article makes two significant contributions to our understanding of the relationship between family law and constitutional law.

First, Appleton explains how marriage operates as an illuminating exception to the traditional binaries between public/private spheres and positive/negative rights. As she explains, the Court’s treatment of marriage in Obergefell reveals several ways in which that institution violates two closely related and widely shared paradigms: (1) that the Constitution protects a “private realm of family life which the state cannot enter,” and (2) that the Constitution guarantees only “negative rights”—“freedom from government action, not entitlement to government benefits.” Through a brief summary of the Court’s abortion funding and child abuse cases, Appleton demonstrates how both paradigms won over a majority of the Court and became part of constitutional law’s “conventional wisdom,” during the 1980s.

In Obergefell itself, the dissenting Justices took the majority to task for disrupting these paradigms—for “convert[ing] the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.” (P. 928). But as Appleton shows, these criticisms obscure a much wider, more diverse set of meanings than the majority gives to the term “liberty” in Obergefell. In particular, she shows that the majority’s opinion in Obergefell relies upon four discrete meanings of the “liberty” protected by the Due Process Clause, each of which was sharply criticized by the dissenting Justices: (1) a “public liberty,” which “impose[s] an affirmative obligation on government” (P. 939-940.); (2) a private and “naturalized liberty,” which protects “sex, reproduction, and childrearing” as “inherently natural” activities (P. 941-944.); (3) a private and “equal liberty,” which “protects against the discriminatory distribution of state benefits, without making such benefits . . . constitutionally required” (P. 944-946.); and (4) what Appleton refers to as a potentially “feminist,” “critical,” or even “queer” liberty, which casts the activities of marriage, sex, reproduction, and childrearing as “a unified whole,” thereby blurring the traditional boundaries between public and private institutions and positive and negative rights. (P. 946-948.)

In contrast to Professor Kenji Yoshino, Appleton expresses skepticism that Obergefell might augur a new era in which the Court will once again become more willing to recognize and protect the existence of new positive rights. As she explains:

Marriage and its unique properties . . . can help reconcile wishful thinking about welfare rights with the modern neoliberal turn. Even if we understand the constitutional right to marry as public and hence as a positive right, entry into marriage functions as a major gateway for private support obligations, explaining why the state incentivizes marriage. . . . Marriage locates the primary source of support for dependents in the ‘private sphere,’ consistent with neoliberalism’s deference to laissez-faire markets and the minimal state. . . . Guaranteeing same-sex couples a right to marry entails yet additional expansion of these private obligations, in line with neoliberal values. (P. 951-952.)

Although this skepticism was expressed while Justice Kennedy remained on the Court, it seems all the more plausible in light of his subsequent retirement. With a clear majority of five conservative Justices, it is difficult to imagine the Court supporting the recognition of any new positive rights as “fundamental.” And the majority’s opinion offers ample reasons for future Justices to limit or distinguish it, based on the ruling’s extensive reliance on the unique history and significance of marriage itself.

Rather than falling victim to the temptation “to mine the analysis and rhetoric of Obergefell for messages” about future rulings, Appleton takes a more theoretical turn toward the article’s end. “Looking beyond Obergefell’s text,” she contextualizes the majority’s opinion within “a wider exploration of the interaction of family law and constitutional law.”

This section begins by recounting the conventional wisdom of the relationship between family law and constitutional law. In this traditional story, set forth by the majority in United States v. Windsor,2 constitutional law shapes family law by establishing boundaries on how states can define families, thereby marking “the outer limits for permissible family laws.” (P. 963). In contrast, Appleton analyzes a long line of Supreme Court cases to illustrate how family law’s policy of identifying private sources of support for dependents has shaped various aspects of constitutional law. In particular, she claims that even as privatized dependency has led the Court to expand the definition of “marriage” in cases from Loving to Obergefell, it has simultaneously led the Court to restrict the scope of equal protection, procedural due process, and substantive due process. And it has consistently done so, she observes, in cases that either directly or indirectly involve issues of family law.

In reviewing Obergefell, most commentators (including myself, among many others) have expressed concern that the majority’s opinion seems to invite discrimination against unmarried persons by effusively praising the institution of marriage, while describing unmarried people as “condemned to live in loneliness.”3 By contrast, Appleton worries about a different scenario, in which the institution of marriage increasingly serves as a neoliberal template for imposing private dependency on more and more non-marital relationships. If this prediction pans out, Appleton’s article presents progressives with a challenging conundrum: If neoliberalism produces more inclusive definitions of “family,” should we embrace this inclusivity and the vision of privatized provision that it underwrites? Or should we be willing to accept a narrower definition of “family,” in exchange for a more “supportive state”?

In the current landscape, it does not seem likely that either of these options is available, as a political matter. Instead, the Trump Administration and the post-Kennedy Court seem more likely to narrow legal definitions of “family” while dismantling the few systems of public welfare that have managed to survive into the neoliberal era. But even in the longer term, Appleton suggests, it seems unlikely that progressives will be able to advance one goal (i.e., the expansion of “family”) without sacrificing the other (i.e., the expansion of governmental support). As Appleton shows, the tensions in the Court’s understanding of “liberty” and “marriage” are the product of deeper tensions in American politics, which are likely to endure long after the Court’s legalization of same-sex marriage becomes a banal aspect of the relationship between family law and constitutional law.

  1. 135 S. Ct. 2584, 2608 (2015).
  2. 570 U.S. 744 (2013).
  3. Clifford Rosky, Same-Sex Marriage Litigation and Children’s Right to Be Queer, 22 GLQ 541, 543 (2016) (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015)); see also Courtney Joslin, Discrimination In and Out of Marriage, 98 B.U. L. Rev. 1 (2018); Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequality, 104 Cal. L. Rev. 1207 (2016); Michael Cobb, The Supreme Court’s Lonely Hearts Club, N.Y. Times (June 30, 2015).
Cite as: Clifford Rosky, Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law, JOTWELL (October 16, 2018) (reviewing Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016), available at SSRN), https://family.jotwell.com/expanding-liberty-to-privatize-dependency-how-the-evolution-of-marriage-has-shaped-constitutional-law/.