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Against Functional Approaches

Katharine K. Baker, Equality and Family Opportunity, __ Univ. of Penn. J. of Const. Law __ (forthcoming), available at SSRN.

As Katharine Baker recounts in her excellent article, Equality and Family Autonomy, functional analysis was once part of a positive progressive narrative within family law: it was through a functional analysis that scholars and courts (and some legislatures) found a way to give legal recognition – and legal protection – to individuals and families whom legal formalities would not protect. As Baker writes: “Contemporary family law scholarship … often assume[s] that a functional approach to family law … is the best way to secure equal treatment for people who live in relationships that have not been recognize legally as familial.” (P. 2.)

However, functional approaches always had their disadvantages, and now that same-sex partners and parents can generally protect their interests through marriage or adoption after Obergefell v. Hodges,1 Baker shows how those disadvantages – “pluralistic, self-determination and privacy values that can be lost” (p. 4) – often outweigh the benefits for the legal treatment of parenthood. Functional analyses require state evaluation of the family, which is too often “invasive, ineffective, and . . . damaging” (p. 4). Baker argues that “[a]s family forms grow more diverse, judges become ever less qualified and less capable of assessing what constitutes appropriate family behavior.”2 (P. 5.)

Baker emphasizes the tension within the doctrines of family privacy and family autonomy: The Constitution and the common law give certain protections to families, but do not define “family.” Where once this was defined in terms of legal and traditional family forms, many scholars (and some courts and legislatures) urged a functional understanding of family – “those who act like a family should be treated as family” (p. 3, footnote omitted) – to protect LGBTQ families and the various “kinship structures” (p. 3) found in economically marginalized communities. Functional arguments are effectively equality arguments (if they act like a family they should be treated no different), but equality arguments have “an inevitable comparator problem.”3 (P. 3.) What do (unconventional) families need to be like, to warrant the special protections the constitution grants to families? The answer tends to be: conventional families (“dyadic, nuclear famil[ies]” (p. 4)).

To conclude under a functional analysis that someone is “acting like a parent,” a couple is “acting like a married couple,” or a household is “acting like a family,” courts need a standard, an express or unstated understanding of what parents, couples, and families, act or look like. And the judiciary, which is often not especially diverse, may bring a fairly conventional (white, wealthy, suburban, middle-class) understanding to such things. So, family forms that may be common in some communities (e.g., BIPOC4 and LGBTQ communities5 ), but less conventional according to establishment views, may be rejected by the courts.6 Baker comments: “To assess whether a group functions as a family in order to decide whether they should be treated as other families invades the liberty families are supposed to enjoy as a unit.” (P. 4.) Functional approaches are intrusive: to gain rights, couples claiming that their relationships were “like marriage” may need to testify in detail about their sexual, financial, and social life, and have all of these evaluated by strangers.7 (P. 6.) This parallels the way that state benefit rules already authorize the state to intrude on the lives and domestic decision-making of poorer families.8 (Pp. 23-24, 28-30.)

Under Baker’s analysis, if functional analysis now has a better reputation than it deserves, the idea of family autonomy perhaps has a less good reputation than it deserves. The poor reputation comes in part from its association with the way it has been used to block abuse, neglect, and exploitation from public scrutiny. (P. 23.) As Baker (pp. 7-9), Frances Olsen,9 and others have argued, it can also be misleading to speak of the government’s “non-intervention” in the family, as the government always sets the rules of engagement (e.g., what counts as abuse, neglect, abandonment, inadequate support, and grounds for divorce; and who controls property during the marriage and how is property divided on divorce and at the death of one spouse; etc.), and “non-intervention” may simply serve the more empowered spouse. (Pp. 22-23.) Still, there remains real value to family members being able to make significant decisions for the family, without those decisions having to be publicly justified or being subject to government overruling, and to have interactions in the family largely shielded from judicial or agency review. Also, Baker adds, “[r]especting family autonomy is a means of respecting diversity.” (P. 26.)

Baker sees the high value of family autonomy reflected in many long-term trends in family law: e.g., the demise of fault divorce (neither the judges nor the parties wanted the judges “interrogat[ing] the behavior in a marriage” (p. 14)), and the move towards less judicial discretion in property division, spousal support, and child support.10 (Pp. 14-19.)

What then to put in the place of functional analysis? After all, there needs to be some definition of “family” for any doctrine of family autonomy or family privacy. Baker urges greater uses of formalities11: “Registration system for both parent-like and marriage-like relationships offer alternatives that can protect relative autonomy while honoring non-traditional families.”12 (Pp. 6-7, footnote omitted.)13 Along with license-plus-ceremony for marriage,14 some states have “opt in” registration to grant rights to nonmarried cohabitants, and there are “Voluntary Acknowledgement of Parentage” and guardianship papers for parental rights. (Pp. 38-39, 47.) These and similar straightforward forms could and should be expanded and (if possible) made more uniform across jurisdictions.

Of course, even granting Baker all the points she raises about the problems of functional approaches, it is far from clear that it would be wise to rid family law of all the functional and equitable principles relating to marriage and parenthood (which include important resources, like the putative spouse doctrine and the in loco parentis doctrine). Baker’s work is best seen as a corrective, showing us the real benefits, both from the perspective of judges and that of affected families, of a significant retreat from functional approaches, and a higher valuation of formalities and family autonomy.

  1. 135 S. Ct. 2584 (2015).
  2. She concludes, from the child welfare system, that “when judges do not recognize what is before them as a family, they feel free to destroy it.” (P. 5; see also Pp. 23-24, 28-30.) Baker sums up a detailed argument on court intervention in custody fights and determinations of abuse and neglect as follows: “in practice … courts are not effective caretakers of children.” (P. 30.)
  3. This is analogous to the point Catharine MacKinnon makes in critiquing sex equality doctrine. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L. J. 1281 (1991).
  4. Baker observes: “For over 20 years, scholars of color have warned of the dangers of excessive state interference into the intimate lives of people in communities of color.” (P. 5, footnote omitted.)
  5. Baker notes that children in minority communities “are much more likely … to be raised in ‘kinship groups,’ which include multi-generational households related by blood or marriage and can also include ‘fictive kin’ ….” (P. 44, footnote omitted.) She adds: “Studies indicate that 25 to 44% of Black Americans live in kinship groups, compared to only 11 percent of white Americans” (pp. 44-45, footnotes omitted), and that higher percentages are also found in LatinX and Native American communities. (P. 45.)
  6. By contrast, as Baker and others — e.g., Mary Anne Case, Marriage Licenses, 89 Minn. L. Rev. 1758, 1765 (2005) — point out, married couples generally do not have to show that they live like conventional couples or conventional parents to have the attendant legal rights. (One of the few contexts where married couples may need to show that they are acting like a married couple is immigration, where the state can ask intrusive questions to determine whether the marriage in question is real or a sham, intended only to gain citizenship status for one of the spouses. See also Kerry Abrams, Marriage Fraud, 100 Cal. L. Rev. 1 (2012), discussing other contexts where the legal rights and duties can turn on the sincerity of the marriage (or the divorce).)
  7. One might imagine one line of response: functional/equitable arguments are used when formal/legal arguments are not available, and those who use them want that option to be available and can hardly complain about its intrusiveness. This response works when a couple is bringing a claim together (e.g., to have their relationship recognized or to have a partner recognized as a parent); however, often one member of a couple is resisting the claim (of a partner to property post-dissolution or to have parenting rights shared), and the resisting partner will not want the claim recognized and will almost certainly not want the intrusiveness of the inquiry.
  8. See, e.g., S. Lisa Washington, Survived and Coerced: Epistemic: Injustice in the Family Regulation System, Colum. L. Rev. (forthcoming, 2022) (describing state welfare and social services agencies as “an intrusive, disempowering surveillance system”).
  9. Frances E. Olson, The Myth of State Intervention in the Family, 18 U. Mich. J. L. Reform 835 (1985). Baker cites and quotes Olsen at p. 7.
  10. While child custody decisions do involve judicial interference and evaluation, Baker concludes that our current practices continue because alternatives that might reduce judicial discretion are worse for other reasons. (Pp. 19-22.)
  11. Until a registration processes is in place, Baker would continue to support functional approaches. (P. 38.)
  12. Baker comments that “[a] full explication of how registration systems could work is beyond the scope of this article.” (P. 7.)
  13. Baker also argues that a combination of non-interference and a greater understanding of the nature of intimacy would justify the reluctance of courts to enforce “vague, oral and incomplete” (p. 34) agreements between spouses and cohabitants, and their reluctance to impose tort duties in those contexts. (Pp. 32-37.)
  14. Baker is critical of common law marriage, treated it as another misguided functional approach to treating some nonmarital cohabitants as if they were married. (Pp. 55-58.)
Cite as: Brian Bix, Against Functional Approaches, JOTWELL (January 12, 2022) (reviewing Katharine K. Baker, Equality and Family Opportunity, __ Univ. of Penn. J. of Const. Law __ (forthcoming), available at SSRN), https://family.jotwell.com/against-functional-approaches/.

Can the FDA Save Early Abortion?

Greer Donley, Early Abortion Exceptionalism, 107 Cornell L. Rev. __ (forthcoming 2021), available on SSRN.

In Early Abortion Exceptionalism, forthcoming in the Cornell Law Review, Professor Greer Donley addresses the regulation of medication abortion by the U.S. Food and Drug Administration (FDA). Almost 40% of abortions are completed by taking two drugs at or before 10 weeks of gestation. Mifepristone is the first drug and, the second drug, misoprostol, is taken 24 to 48 hours after. The FDA issues a Risk Evaluation and Mitigation Strategy (REMS) for drugs it deems risky and in need of monitoring. Professor Donley focuses on two requirements this drug safety program imposes on providers seeking to prescribe mifepristone. For one, all providers must be certified to prescribe mifepristone, which requires submitting a form to the drug sponsor attesting that the provider can “assess the duration of pregnancy accurately,” “diagnose ectopic pregnancies,” and “provide surgical intervention” or “have made plans to provide such care through others.” (P. 11.) For another, the FDA requires that patients collect mifepristone at a healthcare facility – in-person at a hospital, clinic, or medical office. The effect of the FDA’s dispensation requirement has been to prohibit retail pharmacies and mail order prescription services from distributing mifepristone.

Professor Donley explains the complexities of the FDA regulation with clarity. But detailing the rules that govern medication abortion is not the point of her novel piece. Rather, Professor Donley assesses these restrictions in light of their ineffectiveness – medication abortion has been subject to strict controls even though it is comparatively safer than less regulated drugs. And she demonstrates why lifting these regulations would greatly expand access to early abortion. To make this case, her article offers three important insights.

First, Professor Donley shows how medication abortion, like other matters important to women’s reproductive health, has been singled out among drugs and subject to an overly politicized process. Professor Donley compares the FDA’s treatment of medication abortion to the agency’s regulation of Plan B (the “morning after” pill), female sex drugs, and medical research in women and female animals. Together, these examples reveal “a troubling history of implicit bias that harms women, especially when considering reproductive health.” (P. 36.)

Second, Professor Donley brings together legal arguments with public health research to demonstrate that medication abortion is safe and effective, highlighting that the FDA’s requirements – certification and in-person dispensation specifically – are unnecessary at best and counterproductive for patient safety at worst. For example, of the 3.7 million women who took mifepristone between 2000 and 2018, the FDA’s website notes that there were 24 deaths. Viagra, by contrast, has a fatality rate of 4 deaths per 100,000, nearly six times higher than that of mifepristone; but unlike mifepristone, Viagra is not subject to the same restrictions.

The COVID-19 pandemic highlights the mismatch between the safety of medication abortion and the burdensome FDA restrictions. Along with the expansion of telemedicine in numerous other areas, the pandemic has been a catalyst for the wider introduction of telehealth for medication abortion. In July 2020, a federal district court temporarily enjoined, for the course of the pandemic, the FDA restrictions on how patients collect the drug regimen.1 Professor Donley weaves together the arguments marshalled by the district court in suspending in-person dispensation with the proven benefits of “teleabortion” to urge the FDA to lift or to modify the REMS – an action that the FDA may take by the end of this year.

Third, Professor Donley reflects on the future of abortion care given the emergence of virtual clinics providing medication abortion services. Professor Donley argues that anti-abortion activists would have trouble challenging the FDA’s removal of the REMS in court. More practically, despite clear limitations on the expansion of teleabortion – including state-specific restrictions on the delivery of medication abortion and bans on telemedicine for abortions – more people will receive medication abortions because of remote delivery. Mailing a two-drug regimen opens all manner of possibilities for abortion access, within and outside the law.

Professor Donley provides a fascinating and timely account of the changing legal landscape for medication abortion, blending various perspectives – from empirical research to agency review to litigation strategies – that are not often in conversation with each other. Removing federal restrictions will increase access to medication abortion; yet how big a difference remains to be seen. If pharmacies were to carry mifepristone, for example, Professor Donley suggests that more providers would administer medication abortion because they could avoid the costs of storing it. Professor Donley, however, may underestimate the various impediments to abortion care, which include limited medical training, stigma, or costly impact of state regulations. For instance, 19 states require some in-person component of having a medication abortion (such as in-person counseling or a mandated ultrasound); these state laws will impede the expansion of virtual medication abortion even if federal oversight is relaxed. States also are attempting to regulate mifepristone more strictly than the FDA; these efforts raise questions of federal preemption that are the subject of ongoing litigation. This is all to say that removing FDA restrictions would go a long way in expanding access to medication abortion, but it is only one piece of a complicated puzzle.

To be sure, Professor Donley recognizes the challenges ahead for expanding access to medication abortion. Her work is prescient while staying grounded in the history of the abortion debate at federal and state levels. But her optimism about the capacity of medication abortion to shore up gaps in access is contagious, particularly given the role that portable, inexpensive medication abortion might play in a country where some states double down on anti-abortion legislation. As the country awaits a 2022 Supreme Court decision on whether states may ban abortion before viability – a  decision that likely will overturn or further eviscerate constitutional protection for abortion decisions — the legal landscape for abortion promises to shift further in the near future. Early Abortion Exceptionalism invites the federal government, as seems to be its direction, to solve the already-severe problem of how people gain access to abortion services, rather than to continue to exacerbate it.

 

  1. Am. Coll. of. Obstetricians & Gynecologists v. FDA, 472 F. Supp. 3d 183 (D. Md. 2020).
Cite as: Rachel Rebouché, Can the FDA Save Early Abortion?, JOTWELL (December 7, 2021) (reviewing Greer Donley, Early Abortion Exceptionalism, 107 Cornell L. Rev. __ (forthcoming 2021), available on SSRN), https://family.jotwell.com/can-the-fda-save-early-abortion/.

Obstetric Racism and the Limits of Family Law Reform

This year, the law journals at the University of Michigan Law School published a collective joint special issue focusing on racism and the law. One essay included in the volume, selected and edited by the Michigan Journal of Race and the Law, was Colleen Campbell’s Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women. Professor Campbell’s essay concisely describes and explains how, as she puts it, “Black women are simultaneously overmedicalized and medically neglected” in obstetrics. Physicians see Black women as innately high-risk, so that they are overmedicalized by disproportionately common surgical interventions during pregnancy and birth. At the same time, racism that continues to devalue Black lives leads medical professionals to disregard Black women’s choices and agency around their reproductive health. In both cases, the ability of Black women to determine or even consent to their medical treatment is undermined.

Professor Campbell’s project is an ambitious one, as she traces treatment of Black women by the medical establishment in the context of obstetrics from the exploitation of enslaved women to higher rates of Black maternal mortality today, and she ably synthesizes the works of a wide range of scholars and literatures to do so. In the earliest days of “professionalized” gynecology, white male physicians took over a practice that had been largely conducted by women such as midwives. One way that the field became professionalized and masculinized was by greater reliance on surgical procedures. And a key, disturbing part of the development of surgical procedures was surgical experimentation on enslaved women, the most extreme example of medical violence in Campbell’s account. Campbell points to the example of James Marion Sims, considered the father of modern gynecology through his surgical treatment of fistulas, who operated on conscious and unanesthetized enslaved women. Adding insult to unfathomable injury, Sims described enslaved women with no choice or control over what happened to their bodies as happily consenting to these procedures, and relied on the racist belief that Black people did not feel pain the way that white people did to justify not using anesthesia.

This blithe assumption of consent is also illustrated in Professor Campbell’s discussion of mass sterilizations performed on Black women and other women of color in the early twentieth century, a more recent example of medical violence that inflicts surgical interventions in the absence of patient consent. Such practices grew from two racist beliefs: first, seeing women of color as hyper-fertile in a way that threatened white dominance, and second, physicians’ willingness to perform life-altering surgery based on the judgment of a state agency or employee, which was deemed more important than the lack of consent of the actual Black woman or girl being operated on.

Demonstrating the weakness of the idea of informed consent anchors the final portion of Professor Campbell’s essay. The concept of informed consent is that physicians must give their patients any information that a reasonable patient would take into account when deciding upon a course of treatment.1 In practice, however, physicians are seen as objective experts while patients are expected to defer to medical knowledge. This dynamic is magnified in the context of obstetrics, which Campbell points to as one explanation for higher rates of c-sections performed on Black women, a subset of medical violence known as obstetric violence.

The intersection of obstetric violence, which many women experience during birth, is magnified by medical racism: where obstetric violence results from a belief that doctors know best about medical care, medical racism further asserts that Black women are incapable of directing their care so that their consent is even less necessary. As a result, Black women face worse health outcomes and experiences than White women, even if they hold other characteristics such as higher socioeconomic status that would typically correlate with better medical treatment. Professor Campbell bookends her essay with the example of Serena Williams, one of the most famous athletes in the world, who nearly died after giving birth to her daughter. The day after she gave birth, Williams correctly recognized symptoms of embolisms, which she had been treated for in the past. She immediately alerted hospital staff and requested the proper diagnosis and treatment protocol of a CT scan and blood thinner – but instead a nurse simply assumed that she was confused due to pain medication and delayed giving her the proper treatment for what turned out to be pulmonary embolisms, just as Williams had predicted. Williams had given birth by c-section, characteristic of overmedicalization, and then her well-informed medical knowledge and requests for care were ignored, characteristic of medical neglect.

Professor Campbell’s focus is on the obstetric space, and her essay enriches a vein of recent scholarship into obstetric violence. Her broader analysis, however, is also relevant far beyond medical decisions around reproduction, as the tenuousness individual agency undergirding informed consent is pervasive throughout family law. Professor Campbell refers to the sterilization campaigns at the start of the last century, but incarcerated women – themselves disproportionately Black and Brown – are still subjected to sterilization procedures, and long-term birth control methods have been imposed as conditions of supervised release.2 Yesterday’s enslaved Black women exploited to refine surgical techniques later used to improve the lives of white women are today’s home health care workers deprived of employment and health protections even as they are deemed essential workers who must continue working during the COVID-19 pandemic.3 The lack of agency that Professor Campbell criticizes in the context of informed consent is the same lack of agency that criminalizes the choices of low-wage Black mothers. 4

The essay is a welcome reminder, therefore, for family law scholars who focus on the promise of individual choice that not all people experience that choice in the same way. For all of the increased flexibility that family law can offer today – recognition of more relationships, more paths to parenthood, different ways to structure family life – the unequal history of American law means that flexibility is a tool of privilege. And even though some Black women and members of other historically excluded groups attain high economic or educational privilege, Professor Campbell points out that such status does not correlate with even as basic an improvement as better obstetric health outcomes. Meaningful reform of family law must take account of systemic racism and other prejudice that prevents theoretical change from having practical effect in the lives of all Americans.

  1. Citing Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir. 1972).
  2. See Dara Purvis, The Rules of Maternity, 84 Tenn. L. Rev. 367, 431-34 (2017).
  3. See Ruqaiijah Yearby & Seema Mohapatra, Structural Discrimination in COVID-19 Workplace Protections, HealthAffairs.org (May 29, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200522.280105/full/.
  4. See Ann Cammett, Welfare Queens Redux: Criminalizing Black Mothers in the Age of Neoliberalism, 25 S. Cal. Interdisc. L.J. 363, 370-75 (2016).
Cite as: Dara E. Purvis, Obstetric Racism and the Limits of Family Law Reform, JOTWELL (November 9, 2021) (reviewing Colleen Campbell, Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women, 26 Mich. J. Race & L. 47 (2021)), https://family.jotwell.com/obstetric-racism-and-the-limits-of-family-law-reform/.

Fair Housing for a Non-Sexist Household

Noah M. Kazis, Fair Housing for a Non-Sexist City, 134 Har. L. Rev. 1684 (2021).

Noah Kazis opens his new article Fair Housing for a Non-Sexist City with an ambitious question: “What would a non-sexist city be like?”1 (P. 1684). America’s “built environment,” Kazis explains, is a stubbornly sexist one. (P. 1687.) Examples abound. Women—as both child-care users and child-care workers—are economically burdened because of land use restrictions on in-home day care in residential areas. (Pp. 1710-20.) Men—as the predominant users of economically-desirable shared housing models—are rendered homeless because of building code and zoning restrictions on single room occupancy units. (Pp. 1720-35.) Women and men—as partners—fall into traditional sex roles (that redound to the financial detriment of both) because of land use restrictions that make it harder for a parent (traditionally the woman) to be at home for children in one area and at work for a high-paying job in another. (Pp. 1735-45.) Kazis uses these examples—among others—to illustrate the problem his article targets: the entrenchment of Victorian America’s separate spheres ideology in today’s material landscape.

Fair Housing is a treasure trove of facts that will interest scholars of family law and of gender relations, including the fact that “[t]en percent of the gender pay gap between husbands and wives without children can be attributed to commute variables” (P. 1739), and the fact that cities historically excluded apartment houses and boarding “hotels” from residential areas in order “to preserve the ‘character and quality of manhood and womanhood.’” (P. 1726.) However, one of the most interesting facts that Fair Housing unearths is that neither litigants nor enforcement agencies have used the Fair Housing Act—a federal law dedicated to ensuring fair housing, after all—to challenge our built environment’s housing and land use practices; nor have scholars dedicated much attention to sexism in our material and architectural ecosystem. Kazis’s aim in Fair Housing is not so much to explain why that is so as to elaborate on what role the FHA might play moving forward. To that end, Fair Housing offers concrete examples and explanations of the ways in which the FHA can facilitate “fair housing for a non-sexist city” through its relatively robust disparate impact theory of liability and its statutorily unique provision requiring state and local governments to “affirmatively further” fair housing (P. 1692.)

Fair Housing is right: sex discrimination in the American-built environment is a huge problem that the law has ignored, either because it is “too big to fail” or too big to apprehend. Complicit in this erasure, I rarely do a deep dive into the FHA in my family law course, using my property course instead to elaborate on the FHA’s meaning and applications. Thanks to Kazis, the FHA will now be required reading in both courses.

Fair Housing provokes as many questions as it answers, but one is whether the FHA could be used to bring more men into the caregiving space, a question that Kazis gestures at but never makes central to his inquiry. Rather than focus on how land use practices keep men outside the domestic sphere, Kazis’s primary focus in Fair Housing is on land use practices that keep women within it—not working. Consider the limits on in-home child care, which burden two classes of women: in-home child care providers, 95% of which are women (P. 1712), and in-home child care consumers, most of whom are mothers, who “still bear the primary responsibility for child care in most American families, even in an era when most mothers work” (P. 1711) and for whom “[a]ccess to good child care … is essential for [their] ability to enter and advance within the workplace.” (P. 1712.) Another is land use limits on urban size and density, whose sexist effects are more complicated but which ultimately keep a certain class of women closer to the domestic sphere (where the kids are) and far from the city center (where more lucrative work opportunities sit). As Kazis says, “[t]here is a deep reservoir of intentional discrimination sitting underneath the design of modern suburbia – an intent to cordon off a female, domestic sphere through physical distance from the city center.” (P. 1741.)

Kazis argues that the FHA is an under-utilized (indeed, unutilized) tool to challenge these restrictions, which disproportionately affect women and which are grounded in a Victorian gender ethos that modern anti-stereotyping jurisprudence—of which the FHA is an essential but unappreciated part—repudiates. I love the idea of applying the anti-stereotyping principle to new terrain, and would argue that the principle is capable of doing more work on this field than Kazis admits.

For example, Kazis maintains that property law has made it harder for women to enter the breadwinning sphere, both by restricting in-home day care (run by women) and by keeping mothers far from lucrative city employment. But if that is right, then property law has also made it harder for men to enter the caregiving space, either as paid caregivers or as fathers. If density restrictions mean that mothers will be the parents who respond to their children’s needs during the school day, then those same restrictions mean that fathers will not be the parents to do so, creating a gendered division of labor in (and outside) the household that “sticks” well after the work day is done. Lifting density restrictions—as Kazis suggests—could therefore have not just one effect but two: encouraging more women to work outside the home (which Kazis enthusiastically supports) and encouraging more men to work within it (which Kazis does not mention).

At the end of Fair Housing, Kazis says that the FHA’s “integrationist intent with respect to race, color, and national origin” does not carry over to “sex discrimination” under the Act because “men and women live in the same neighborhoods—and in the same homes.” “If the Fair Housing Act is read always and only to demand integration, for each protected class,” he continues, “it will not adequately speak to sex discrimination.” (P. 1752.) For that reason, Kazis contends, “[a] specialized theory of fair housing for sex … is needed” (P. 1753), by which I understand a theory that recognizes that “integration” means something different for sex than it does for race.

I respectfully disagree. On a macro level Kazis is of course right: our neighborhoods and external spaces remain woefully segregated by race but not by sex. But on a micro level Kazis is less correct: our homes and internal spaces remain as sex-segregated as ever, as Kazis himself persuasively shows throughout Fair Housing, with women as primary caretakers and men as primary breadwinners.2 Fair Housing might not say so, but the FHA’s “integrationist intent” has as much application to the segregation inside our walls as it does to the segregation outside of it.

  1. P. 1684 (quoting and citing Dolores Hayden, What Would a Non-Sexist City Be Like? Speculations on Housing, Urban Design, and Human Work, 5 Signs 170 (1980)).
  2. That is, in the heterosexual households on which Fair Housing tends to focus.
Cite as: Courtney Cahill, Fair Housing for a Non-Sexist Household, JOTWELL (October 11, 2021) (reviewing Noah M. Kazis, Fair Housing for a Non-Sexist City, 134 Har. L. Rev. 1684 (2021)), https://family.jotwell.com/fair-housing-for-a-non-sexist-household/.

On Pointe: The Right of Children to Explore their Gender Identity

Marie-Amelie George, Exploring Identity, 54 Fam. L. Q. __ (Forthcoming, 2021), available at SSRN.

I recently came across a pilot podcast series from Scottish Ballet called Scottish Ballet’s Half Hour Call. The premise of the podcast is to discuss how ballet and ballet companies fit the world we currently live in. In the second episode, dedicated to masculinity in ballet, Myles Thatcher (choreographer and dancer at San Francisco Ballet) shared a story that made me think of Professor M.A. George’s captivating latest article, Exploring Identity.

Thatcher relates how exciting it was that while he was choreographing a piece for Ballet22 (twodos), a body type, gender identity, and race inclusive company that performs dances that break gender normative traditions, he started looking at pointe shoes in a new way. Even though he has been aware that gender exists beyond the binary, that collaboration made him realize that “a pointe shoe is not a gender object.” Transcending ballet’s common binary understanding of gender opened up for Thatcher new avenues of creativity and experimentation in his choreography.

This is precisely what Exploring Identity does. George’s work paves the way for all legal actors and operators (i.e., parties, practicing attorneys, advocates, activists, policymakers, judges, law professors, and law students) to think about gender in the law in new, expansive, and more inclusive ways. The article surveys and discusses custody disputes involving “gender expansive” children. George employs this last term as an umbrella to refer to “transgender, nonbinary, and children exploring non-traditional gender identities.” By analyzing the disputes between parents who disagree on how to address their child’s expansive gender identity, George makes us realize that often, much like ballet, the law does not transcend the gender binary.

After comprehensively surveying the available custody cases in which parents dispute how to manage the child’s gender identity (which in itself is a great contribution), George concludes that judges, no matter the result of the case, frame the issue incorrectly. Judges erroneously understand gender identity as fixed and binary. Consequently, even when they try to address a child’s evolving and/or non-binary gender identity, they mistakenly focus in the custody battles on determining which parent is correct about the child’s (future) identity or best suited to support such gender identity.

Instead, George argues that courts should be focusing on determining which parent is best suited to support their child’s exploration of their gender identity. George arrives at this conclusion by examining our current understanding of gender identity, the arguments parents make in the custody cases, and courts’ rationales in such cases.

Regarding the first aspect, the article explains our developing understanding that gender is a spectrum in which identities may range from woman to man, including nonbinary, agender, and individuals with other types of gender expansive identities. However, as George points out, nonbinary identities are almost invisible in today’s society, even if they represent a sizeable group of individuals. This erasure, the article explains, could be due in part to the mismatch narrative (about being born in the wrong body) from early transgender rights advocacy, which accepts rather than challenges the binary view. In addition to explaining how we have moved away from binarism, the article recounts the emerging insights from recent scientific studies that show that gender identity in pre-adolescent children, contrary to teenagers, is not stable.

These two explanations about gender help contextualize parental arguments and legal rationales in custody cases. On the one hand, George points out that, in parental disputes about their child’s gender, parents opposing the new identity, surprisingly, do not typically make anti-transgender arguments. Rather, most parents cannot escape their binary understanding of gender or the inner workings of their own transitioning process into accepting their child’s gender. For that reason, they typically argue either that their gender non-conforming children are not transgender or gender expansive because they do not embrace all the characteristics of their opposite natal gender or that the child’s gender expansive identity was created by external pressures.

On the other hand, what drives the misguided response of the courts is their lack of awareness that gender in preadolescent children is not stable. George explains that the three approaches that courts follow in awarding custody correspond to the imprecise approaches thus far developed to work with gender expansive pre-adolescents: reparative, affirmative, and watchful waiting. Although only one of these approaches pathologizes gender expansiveness (i.e., reparative), courts’ application of all three is predicated on the wrong premise that the current gender of the child will be their future one. As gender is not fixed nor stable at that stage, George argues that the determination of custody should be based instead on the best interest of the child to explore their gender identity. It should not be based in a determination of what is (or will be) the gender of the child.

This proposed approach would remove the binarism as well the idea of gender stability from the legal determinations. As such, the law could open new spaces for experimentation to children and parents by conveying that gender is much more diverse than the traditional categories and its final form could be unknown.

George posits that this proposal is not foreign to what courts have been long doing in custody cases in which the decision of awarding custody hinges on the race, religion, or sexual orientation of the children. By a comprehensive review of the case law in these three areas, the article shows that courts across the United States have recognized as basic to children’s well-being their capacity to explore their racial, religious, and sexual identities irrespective of their final definition and with independence of their parents’ preferences. This is just a new iteration of an old principle, like men and non-binary individuals on pointe.

Perhaps there lies the greatest impact of the article for me. It forced me to examine if, like the judges awarding custody to a gender affirmative parent, I, like Thatcher, have been reverting to traditional understandings of gender instead of ungendering the law. As such, George’s piece, like Ballet 22 for Thatcher, has opened new opportunities for me and my work.

I am sure reading George’s article will invite similar and more profound reflections from legal actors and operators. I cannot wait to read some of those reflections when I assign the article in my classes to discuss gender but also to serve as a primer to discuss custody cases and children’s identity in general. But most importantly, I hope the article reaches judges, advocates, lawmakers, and attorneys so that the much needed revamping of gender binarism in the law takes place.


Editor’s note: for another review of Exploring Identity, please see Erez Aloni, Judging Gender, JOTWELL (September 13, 2021).

Cite as: Aníbal Rosario-Lebrón, On Pointe: The Right of Children to Explore their Gender Identity, JOTWELL (September 13, 2021) (reviewing Marie-Amelie George, Exploring Identity, 54 Fam. L. Q. __ (Forthcoming, 2021), available at SSRN), https://family.jotwell.com/on-pointe-the-right-of-children-to-explore-their-gender-identity/.

Toiling–and Not Toiling: Law, Gender, Class, and Unemployment

In the early days of the pandemic, the unemployment rate reached close to 15% , and the number of families that had at least one unemployed person doubled, to almost 10%. Those unemployment rates vary by race and gender: Black and Hispanic families were more likely to have one unemployed person than white or Asian families, and, several months into the pandemic, the US Census reported that women were more than twice as likely as men not to be working because of child care issues.

These statistics suggest profound impacts on the family. Enter sociologist Sarah Damaske’s new book, The Tolls of Uncertainty: How Privilege and the Guilt Gap Shape Unemployment in America (2021). The Tolls of Uncertainty explores the intersections between unemployment and family obligation through interviews with 100 people in urban and rural Pennsylvania. Damaske debunks various myths about the unemployed, such as that they are lazy or clearly differ from the employed, and shows that although men may face expectations to be the breadwinners, ”women appear to bear much higher levels of guilt and shame for losing their jobs.” (P. 14.) And the book proposes policies that support not just the unemployed but also their families.

The story of unemployment unfolds in the book’s three major sections, the first on losing a job, the second on the consequences, and the final section on the struggles people face in returning to work. Damaske began her research in 2012, just after the Great Recession, but during a time of economic growth. Although situated during a particular time period, the book offers enduring lessons about unemployment and the family, regardless of the national economic picture – and, as Damaske explained in a May 2021 New York Times article, the pandemic provides yet another example of how job loss affects men and women differently.

As a sociological account, the book provides rich detail on what it means to be unemployed in America. As she has described in other research, the patterns Damaske found were that: “Middle-class women were most likely to begin an immediate and deliberate job search, middle-class men were most likely to take time to attempt to return to work, working-class men were most likely to report an urgent search characterized by their willingness to take “any job,” and working-class women were most likely to report a diverted search, in which their job search was either delayed or stopped.”

Although the book focuses on the effect of unemployment, family and gender role responsibilities pervade every chapter. Here’s just one of the stories Damaske tells. Although Tamara did not finish high school, she later earned a GED and then – understanding that fast-food jobs would lead to a dead end – enrolled in a program to earn her nursing degree. Her son’s father provided the necessary childcare so she could pursue her studies. During the second semester, however, her son’s father left them, and she was unable to find childcare, so she was forced to quit the program. After finishing a certificate program relating to medical records and finding jobs that paid scarcely above the minimum wage, and following even more efforts at education, Tamara and Damaske spoke after Tamara’s most recent job loss, when she had been fired because she’d had to leave work to take care of her son’s medical emergency. (Pp. 53-54.)

And that story is not even in the chapter on The Guilt Gap and the Second Shift (P.126), the sole chapter explicitly focused on the home. (By “guilt gap,” she means that women had higher amounts of “self-blame” for their unemployment and compensated for that guilt (P. 10) by privileging their family’s needs over their own (P. 109)). In that chapter, Damaske contrasts how men and women handle household responsibilities when they become unemployed. Damaske distinguishes between “routine” jobs, such as cooking, and “nonroutine” chores, such as car maintenance. The pattern she found is not surprising: virtually all of the women and “about half of the men increased the number of routine chores they did at home. But men’s routine chores increased just a bit; they were now ‘helping out’ a little more.” (P. 118) Such an unequal division is not, Damaske notes, what most people claim they want, but women who were unemployed compensated for not working by doing significantly more routine household work – men did “a bit” more. (Pp. 128, 131.)

The major class difference she found was that, notwithstanding unemployment, middle-class women kept their children in day care, while working-class women could not; consequently, upon unemployment, working-class women additionally “shouldered almost all the childcare in their households.” (P. 149.) Damaske provides additional class lessons, showing that unemployment offers a microcosm of how disadvantages accumulate; the white, middle-class men in her study were more likely to receive severance pay, have savings, and take advantage of “their gendered ability to prioritize their job search over tasks at home” as well as in their supportive networks. (P. 213.)

Beyond portraying the effects of unemployment, the book proposes changes to how the government approaches unemployment. The class and gender lessons provide critical guideposts. The first policy change is transparency, ensuring that those who lose a job know the benefits for which they qualify. Damaske also recommends complete wage replacement for those who earned the minimum wage, noting the importance of those wages to the former worker’s family, as well as to the former worker, who is not, then, forced back to work too quickly.

The two proposals explicitly focused on the family are expanded health care and childcare credits. In arguing for increased government support, she recommends that high quality childcare – that is also affordable – be expanded and provided even after a job loss; indeed, such child care along with parental leave results in women earning more when they are able to work. (P. 222.) That recommendation is, of course, in line with President Biden’s national care infrastructure plan; the child care tax credit is expected to cut child poverty almost in half and will have the other benefits that Damaske identifies.

While the book provides significant insights into families, gender, and unemployment, it does have limitations. Damaske recruited participants through the Pennsylvania CareerLink Center (anyone deemed eligible for unemployment must attend a meeting at the Center that focuses on how to get a new job (Pp. 21-22)): this is not a national sample. Moreover, as she notes, her sample is less racially diverse than the national population. (P. 244.) And, of course, it is difficult to generalize based on 100 participants; Damaske supplements her research with that of other scholars ranging from Aliya Rao to Daniel Carlson to Amanda Miller to Kathryn Edin, all of whom have engaged in important and complementary work on the family.

Ultimately, Damaske shows that unemployment’s impact on the family is shaped by a person’s gender and class, and that changing how we approach unemployment will have a profound impact on the family and gender roles.

Cite as: Naomi R. Cahn, Toiling–and Not Toiling: Law, Gender, Class, and Unemployment, JOTWELL (July 27, 2021) (reviewing Sarah Damaske, The Tolls of Uncertainty: How Privilege and the Guilt Gap Shape Unemployment in America (2021)), https://family.jotwell.com/toiling-and-not-toiling-law-gender-class-and-unemployment/.

Bringing the Nineteenth Amendment Home

Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020).

The Nineteenth Amendment promised to transform the Constitution as it did the content of equal citizenship. It has, however, done neither. Instead, as Reva Siegel explains in The Nineteenth Amendment and the Democratization of the Family, we narrowly understand “the Nineteenth Amendment as a rule prohibiting government from discriminating on the basis of sex in determining who can vote.” (P. 451.) This, Siegel compellingly argues, is an impoverishment of what the Nineteenth Amendment was meant to accomplish, and a depletion in how we define equality. The Nineteenth Amendment wrought change to the Constitution “not simply by adding voters, but by democratizing the family so that women could represent themselves in government.” (P. 451.) The quest for the vote, according to Siegel, was fundamentally a quest to restructure women’s role within the family.

It may come as no surprise that women’s participation in the polity – by eliminating the concept of virtual representation by the husband and head of the household – directly challenged traditional family roles. But lost to history is how the right to vote further implicated structural questions about voluntary motherhood, equal remuneration, and the valuation of work performed both within and outside of the household. We no longer recognize access to contraceptives, or joint property in marriage, as essential to the franchise. Nor do we incorporate the family into the constitutional framework of the Nineteenth Amendment. As such, “the history this Essay explores,” Siegel writes, “has played little role in shaping our law.” (P. 454.) Siegel addresses this erasure by reconstructing the debate over equal citizenship that the suffrage campaign began and examining the various ways recovering this forgotten history can impact our interpretation of the Constitution. In revealing exactly how the Nineteenth Amendment failed to resolve the problem of women’s access to full citizenship, Siegel shows us that it still could.

Siegel details various examples of arguments raised by suffragists in the era immediately following the Nineteenth Amendment’s passage to establish how diminished our conversations surrounding equality have become. Take Crystal Eastman, a graduate of New York University Law School, a companion of Charlotte Perkins Gilman in Greenwich Village’s radical feminist Heterodoxy Club, and a leader of the women’s movement post-ratification. Eastman’s goal was, simply, “[t]o bend gender outside and inside the family.” (P. 468.) To those ends, she proposed challenging not only sex-based exclusions from professional life, but also distending gender roles so that “‘[i]t must be womanly as well as manly to earn your own living’” as “‘it must be manly as well as womanly to know how to cook and sew and clean and take care of yourself.’” (P. 469.) Eastman lamented the reality that “‘breadwinning wives had not yet developed home-making husbands.’” (P. 469.)

Eastman understood that a woman’s position as a mother was central to her plea for equality, as it was to her ability to participate at work. In particular, she argued that women should have the ability to elect motherhood and to control the size of their families, conditions which were “‘as elementary and essential as ‘equal pay.’’” (P. 469.) If a woman decided to raise children, then she should receive remuneration from the government, in recognition of the public service she was providing. (P. 470.) Eastman conceptualized the family as a public institution that warranted public support. Distributing the responsibilities of being a wife and a mother beyond the figure of a single individual was the only way to guarantee economic independence and gender equality.

The vision of the family that triumphed was, however, strictly private, with the wife and mother at its helm; it would remain divorced from the polity, the public, and any constitutional understandings of equality. This was so despite the continuation of the debates into the 1970s, which took shape in the Strike for Equality, organized fifty years after the Nineteenth Amendment’s ratification. The strikers believed that the quest for equal citizenship went beyond votes and “required transformation of the conditions in which women bear and rear children.” (P. 475.) In addition to the Equal Rights Amendment, and equal opportunities in jobs and education, they sought full access to abortion and free around-the-clock daycare centers. (P. 475.) Siegel reminds us that there was national consensus on this final point, and childcare legislation in the form of the Comprehensive Child Development Act was enacted by Congress – not once, but twice. It was, however, vetoed by the President – first by Nixon in 1971 and then by Ford in 1976. (P. 477.) The government’s refusal to provide childcare ensured that support would remain housed within existing family structures.

The standard narrative surrounding the passage of Nineteenth Amendment is currently stuck in the tenor of “an attitudinal account,” which tells the story of having successfully overcome prejudice. (P. 456.) Siegel argues that the Amendment’s passage should also be understood as a tale of “institutional design.” (P. 456.) In opening the franchise, the government authorized individuals to represent themselves, “emancipating some persons from the control of others, as it recognized slaves, servants, and wives as independent in the eyes of the law.” (P. 456.) Siegel turns to the Fifteenth Amendment, and the Reconstruction Amendments more generally, to both guide and implement this institutional interpretation. If we were to read the Nineteenth Amendment’s political history into its text the way we read the history of slavery and segregation into the Fifteenth Amendment, then the family would clearly emerge as “a locus of law, struggle, and power, having a constitutional history like all other important institutions of our constitutional republic.” (P. 457.) On a more granular level, cases involving pregnancy, contraception, and employment would be refracted through an analysis of whether the legal rule “preserve[s] the principle of men’s household headship” or instead “reorganize[s] family relations on the principles of women’s co-headship, equality, and independence.” (P. 485.) Reframing the Nineteenth Amendment as a question of institutional design would create dynamic synergies that could reorient the whole of equal protection law.

Siegel’s proposed reading continues the analogy between race and sex that was successfully adopted by Pauli Murray, Dorothy Kenyon, and, eventually, Ruth Bader Ginsburg: “Just as the constitutional disestablishment of slavery and segregation orients race-discrimination law, so too can disestablishment of male household headship—intersectionally understood – orient sex-discrimination law.” (P. 484.) The institutional dimension of the Nineteenth Amendment ensures that race and sex also intersect. Rather than paper over existing distinctions, Siegel notes that suffragists split, both along and within racial lines, on whether to support a Fifteenth Amendment that did not include the right to vote for women. (P. 461-62.) Most egregiously, the Nineteenth Amendment failed to enfranchise all women. (P. 457.) Addressing such intersectional differences reveals the varied barriers to even forming a family in the first instance: “while controlling the timing of conception promises independence for many, there are many who focus on freedom from coercive sterilization, and yet others who focus on equal parental recognition and access to the means of family formation.” (P. 487.)1 Ultimately, paying heed to intersecting inequalities is the only way for all women to participate fully in public life.

The staying power of the piece, what makes it veritably haunting, is showing exactly how what we exclude, what we fail to see, has the capacity to constrain and truncate discourse in ways that prevent any critical analysis from taking place. Family law scholars are accustomed to statements about what is obvious, natural, or otherwise self-evident.2 We must therefore be carefully attuned to where assertions about the way things are disguise contested opinions about how they should be.3 The specific danger Siegel alerts us to lies in not seeing what they once were, so that we remain blind to what they could yet become.

  1. Important coalitions nonetheless emerged – Siegel writes about the work of Frances Watkins Harper, a leading feminist and abolitionist, who crafted “intraracial and inter-racial alliances” and whose project of “home protection” encompassed issues spanning sexual abuse to lynching. (P. 465.) For a review centrally addressing the role Native, African-American, Asian, and Latina women played in the history of voting rights in America see Ann E. Tweedy, Uncovering the Little-Known History of Suffragists of Color, JOTWELL (March 25, 2021) (reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020)).
  2. “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.” Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141-42 (1872) (Bradley, J., concurring).
  3. Reva Siegel has consistently led the way – she has dismantled the doctrine of marital privacy to expose how it perpetuates marital prerogative, Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2119 (1996); she has denuded the language of love to identify how it conceals a law steeped in status relations, Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860-1930, 82 Geo. L.J. 2127, 2211 (1994); she has detailed how reasoning about “real” differences masks judgments about the proper social roles the sexes ought to occupy, Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 265 (1992).
Cite as: Albertina Antognini, Bringing the Nineteenth Amendment Home, JOTWELL (June 29, 2021) (reviewing Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020)), https://family.jotwell.com/bringing-the-nineteenth-amendment-home/.

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Family Law section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

The Roads Not Taken in the Forest of Family Trees

In Queering Family Trees, Sandra Patton-Imani explores parenthood at the intersection of race, class, and sexual orientation during the period from the 1990s until the Supreme Court’s landmark decision in Obergefell v. Hodges.1 This short period of time witnessed dramatic shifts regarding same-sex relationship recognition and adoption at the local, state, and federal levels, culminating in the legalization of same-sex marriage. In Patton-Imani’s exploration, same-sex marriage is only one fragment of the larger story of family policy, which involves welfare, immigration, and adoption policies.

Patton-Imani’s historical exploration is unique in that it is built on over one hundred ethnographic interviews with African American, Latina, Native American, Asian American, and white lesbian mothers living in different states, in a range of socioeconomic circumstances, all of whom were in the process of building their families during this time period. Through these women’s narratives, we learn of the varied ways through which they formed their families, faced their daily challenges, and struggled to protect their family relationships and to gain benefits and rights that heteronormative families routinely enjoy.

Thus, for example, the book presents different stories of family-making through adoption that include relative adoption, transracial adoption, and transnational adoption. Kelly and Sam, a white middle-class couple, share the discomfort they felt at a Santa Clara County Child Welfare recruitment booth at San Jose Pride, where social workers identified certain children as “low risk,” meaning that because their birth parents—most often single mothers—were unlikely to be able to regain custody, the children were “free” for adoption. This “neo liberal consumer logic” and terminology drove Kelly and Sam to forgo adoption through the foster care system and to resume their fertility treatments (which they could afford given their economic status). (Pp. 131-32.)

Mischa and Kimberly, another white middle-class couple, share the difficulties of bonding with foster children they hoped to adopt but who returned to their biological parents, went to live with relatives, or moved to a different foster family in another jurisdiction. The couple eventually adopted transnationally (from Haiti and Cambodia) and they acknowledge with sensitivity that extreme poverty was the primary reason their children’s birth parents were unable to care for them. (Pp. 99-101.)

Betty and Edna, a working-class Hispanic couple, tell a very different story of family-making through adoption. This couple adopted two children born extramaritally to Betty’s niece. After the niece relinquished the first child for adoption, Betty and Edna struggled financially to complete the formal adoption process, with the result that only Betty legally adopted the child. When Betty’s niece gave birth to another child a few years later, the child was placed in a foster home with a white, heterosexual, middle-class married couple before Betty and Edna arrived at the hospital. It took two months of wrangling with welfare authorities for the couple to obtain custody of the child. Again, only Betty legally adopted the child due to financial constraints. (Pp. 186-88.)

These stories provide compelling accounts of power inequalities as well as significant gaps in the protections available for certain families as a result of socioeconomic status, race and ethnicity, and gender, and especially the intersection of these factors. Yet, Patton-Imani emphasizes that none of these personal stories should be considered “representative.” Rather, she offers the stories as allegories, that is, as normative lenses through which larger sociopolitical narratives can be critically scrutinized.

Patton-Imani’s study makes powerful use of metaphor. A notable example is when she likens her interviewees’ families to grafted trees to illustrate the mothers’ inescapable engagement with prevailing templates for legitimate and normative families. The grafting process joins two or more plants into one and provides a strong metaphor for the interplay among biology, genetics, and nurture. Once the shoot of one tree is grafted onto the rootstock of another, it is nurtured by the rootstock, and the resulting fruit reflects the contributions of both original plants. As Patton-Imani emphasizes, however, the power of the grafted tree metaphor is that it not only illustrates the combination of plant genetics and nurturing to produce fruit, it also draws attention to the power that is involved in grafting. In the words of Patton-Imani: “Whose hand splices the branches and ties them together? Whose social vision shapes the planting and care of the orchard? Who waters and cares for fragile young shoots?” (P. 77.) “[S]tories about grafted trees make power relations visible, allowing us to see whose stories are excised from legitimate history, and how that sleight- of- hand is accomplished.” (P. 248.) Sometimes the exercise of power is easy to detect, such as when the state’s welfare system removes children from their birth parents and places them in foster care or adoption. In other instances, less palpable societal forces influence family-making in unseen ways that may lead, for example, to a scarcity of sperm donors of color – a scarcity noted by some of the interviewed mothers who were interested in such sperm.

The mothers’ narratives, as woven together and analyzed by Patton-Imani, reveal that at each crossroads in the brief and spotty history since the 1990’s, the road taken provided openings for more privileged LGBTQ families (whether through whiteness or economic status). Poor lesbian mothers of color were left behind, just as they had been left behind in the past: it is not only the most recent marriage-centered turn of the road in Obergefell that disadvantaged poor and non-white LGBTQ families.

Patton-Imani’s historical narrative-based exploration forces us to think about the roads not taken, the intersecting side roads of welfare, immigration, adoption, and marginalized families, from the 1990’s through Obergefell, whether at the local, state, or federal level. These alternative roads might have been more diverse, more inclusive, and addressed structural and economic barriers rather than offering more “choice,” which disadvantaged families often lack the financial means to exercise.

In identifying the roads not taken, Patton-Imani does not offer any specific legal path for change or concrete policy suggestions; she leaves that to us, legal scholars and activists. She does mark the desired end of the road, which is to secure the rights and interests of those most disadvantaged. She also suggests that building coalitions among the marginalized is the approach to take. Here, too, she uses trees as a metaphor, this time invoking redwoods, which enjoy majestic size and longevity despite their relatively shallow roots. It is the roots’ lateral expansion and interconnection that creates a common root system that supports them all and sustains them even during a storm.

  1. 576 U.S. 644 (2015).
Cite as: Ayelet Blecher-Prigat, The Roads Not Taken in the Forest of Family Trees, JOTWELL (May 25, 2021) (reviewing Sandra Patton-Imani, Queering Family Trees: Race, Reproductive Justice, and Lesbian Motherhood (2020)), https://family.jotwell.com/the-roads-not-taken-in-the-forest-of-family-trees/.

Restating the Law of Nonmarital Contracts

Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67 (2021).

Millions of Americans are in cohabiting relationships marked by varying degrees of intimacy and dependency. Although at least some of these relationships are functionally similar to marriage, the law has had a limited role in regulating them. Nonmarital partners are ineligible for benefits like family leave, Social Security, favorable tax treatment, and more. Moreover, marital property rules do not apply to them, meaning that economically vulnerable partners may find themselves with nothing at the relationship’s end. In most states, one legal tool available to nonmarital partners is contract. Since the California Supreme Court’s Marvin v. Marvin decision over forty years ago, the vast majority of jurisdictions have allowed partners in intimate relationships to enter into contracts governing property, as long as sex is not consideration for the contract. The problem, most scholars observe, is that the vast majority of couples either do not bother to make agreements in the first place or do not express them in the form of a concrete exchange. Taking courts at their word, scholars assume that courts will enforce nonmarital contracts when they find them.

Albertina Antognini’s latest article, Nonmarital Contracts, disrupts this account. Through a painstakingly detailed examination of the entire universe of cases involving express contracts between nonmarital partners, Antognini shows that courts very rarely enforce agreements between opposite-sex partners exchanging domestic labor for money or other property, the very type of exchange that Marvin theoretically greenlighted. Thus, contract fails to make much of an impact, but for a different reason than is commonly assumed: the very courts that proclaim a right to contract in theory decline to enforce them in reality.

Antognini’s analysis is based on a universe of approximately 120 reported cases that involve claims between nonmarital partners based on an express contract, culled from an initial sample of thousands of false positives.1 The relatively small number of cases allows Antognini to engage every single one without cherry-picking. And indeed, they cannot all be harmonized, a fact that ultimately contributes to a richer set of insights.

Antognini identifies two notable fault lines in this body of cases. First, courts are much more likely to enforce claims between opposite-sex partners predicated on the exchange of property; claims based on domestic services are rarely enforced. Second, contract claims between same-sex couples, many of which involve domestic services, fare quite well in comparison to contract claims between opposite-sex couples.

Courts provide various reasons not to enforce contracts involving domestic services. Some courts struggle to disentangle domestic services from the sexual nature of the relationship, treating the services as an extension of the sex that is also taking place. Some courts presume that the party performing the domestic services offered them out of love and affection, or simply performed them as part of the give-and-take of the relationship, rendering them gratuitous. Other courts find promises to support or take care of the partner providing the domestic services too vague to be enforced.

Not all claims fare so poorly, however. These same concerns—of intertwined sexual services, gratuitousness, or vagueness—are not present when the one partner brings a claim based on tangible property like earnings, shared expenses, or rent. Antognini shows that when partners attempt to recover their share of money spent maintaining the household, or for financial contributions to property that the partners shared during the course of the relationship, courts have easily set aside the sexual nature of their relationships.

Courts have also been much more willing to enforce contracts involving domestic services between same-sex couples. A common assumption in that context is that the parties turned to contract because of their inability to marry, and thus their intentions should be honored (which leads one to wonder whether future claims brought by same-sex partners who could have married will face greater resistance).2

This descriptive work suggests that many scholars have been too quick to take the courts at their word, and perhaps too sanguine about the availability of contract law as a tool to define the legal parameters of nonmarital relationships. Yes, contract law allows partners to exchange property for property, but it renders much of the work that goes on in a relationship—work traditionally performed by women—market-inalienable. From this state of affairs, Antognini draws several compelling insights. She sees in the devaluation of domestic work a preservation of coverture in contract. Within marriage, contract doctrine prevents wives from entering into agreements regarding domestic services, effectively ensuring that any labor they perform within the home will be for the benefit of others. (Pp. 93-94.) But contract doctrine, as reflected in the decisions involving nonmarital partners, extends these effects to people outside of marriage, further articulating the divide between the market and the family. As Antognini puts it, “status is still driving these decisions—in that courts are making judgments about the nature of intimate relationships based on the content supplied by marriage—and limiting contract accordingly.” (Pp. 142-43.) Indeed, based on Antognini’s comprehensive description of the case law, it is hard to unsee the role that marriage plays in determining the types of contract terms that courts will enforce.3

Antognini argues that the status quo is unacceptable because, “in addition to being confused and contradictory, . . . courts are concealing judgments about relationships behind the guise of contract.” (P. 145.) Thus, she pushes courts and scholars to choose between two options for reform: stating clearly that contract is not available for domestic services or ensuring that parties are actually able to contract for home labor. The first option has the benefit of clarity and would allow partners to arrange their legal relations based on the law as it actually operates. However, it would perpetuate “the inequities imposed on the homemaker and the devaluation imposed on homemaking.” (P. 147.) Enabling partners to contract for household work, in contrast, would provide a mechanism to value such work, bridging the spheres of the home and the market.

It’s difficult to imagine a world in which domestic labor has some sort of compensable value, which probably goes a long way to explaining the judicial decisions that Antognini critiques. Spouses do not typically provide an accounting of the different tasks they perform, and courts are not accustomed to assigning market rates to those tasks, nor answering questions like why childcare might be worth a certain amount to an average-earning spouse but much more to a high-earning spouse. And as Antognini points out, it is difficult to imagine a contract law that does not interpret the parties’ commitments through the lens of what courts deem to be objectively reasonable, a lens that will be skewed by the judiciary’s own assumptions about the value and content of marriage. Even for open-minded judges, the pull of marriage will be hard to escape. Left to their own devices, partners themselves structure their relationships unimaginatively. That most partners in the cases at bar simply try to recreate marital-like arrangements (unenforceable) or engage in specific transactions related to joint financial contributions (enforceable) seems to follow predictably from a lack of other options. This suggests, as Antognini herself admits, that merely enforcing more contracts between nonmarital partners will not necessarily result in widespread change.

One article cannot possibly address all of the implications that follow from the realization that the law of nonmarital contracts is not what courts have said it is. In Nonmarital Contracts, Antognini provides plenty of food for thought, raising tantalizing questions that beg answers. Scholars of nonmarriage will surely be contending with the issues Antognini has raised for quite some time.

  1. Antognini excludes claims based on implied contracts, which one assumes would be treated with even more skepticism by the courts, as well as cases arising after the death of one of the partners.
  2. All of the cases except one were decided before same-sex marriage was legal within the relevant jurisdiction, and in that exceptional case, the relevant conduct occurred before legalization. See Appendices B.1-4.
  3. That same-sex couples were clearly not “marriage material” before the legalization of same-sex marriage saved their contracts from the same fate as opposite-sex couples’ agreements. Yet marriage was still shaping contract—by allowing those agreements to be enforced—in its absence.
Cite as: Kaiponanea Matsumura, Restating the Law of Nonmarital Contracts, JOTWELL (April 27, 2021) (reviewing Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67 (2021)), https://family.jotwell.com/restating-the-law-of-nonmarital-contracts/.