Yearly Archives: 2014

Desegregating the Heart

Jul 2, 2014 Camille Gear RichAdd a Comment

In her new book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Interracial Family, Angela Onwuachi-Willig brilliantly deconstructs and challenges the norm of the monoracial family — the idea that “normal” families are and indeed should be produced by heterosexual single-race couples. As Onwuachi-Willig explains, this norm fundamentally shapes American legal and social relations, including marriage and family formation. The social and legal challenges created by the norm of the monoracial family have long been a theme of Onwuachi-Willig’s work,¹ but According to Our Hearts charts new territory by more clearly demonstrating the connection between racial formation and family formation. As a consequence, the book is destined to find fans among family law scholars, race discrimination scholars, and even lay readers interested in better understanding the role family connections play in triggering race discrimination.

Onwuachi-Willig uses the tragic love story of Alice Jones and Leonard “Kip” Rhinelander as a window into three key themes that she believes continue to inform discussions of the multiracial family today. The first theme, “interraciality,” allows us to explore the role that cross-racial family relationships play in triggering race discrimination. She argues that the study of race discrimination has largely neglected discrimination’s relational component. This relational component posits that discrimination may be triggered by others’ concerns about cross-racial intimate contact or family relations, rather than a single individual’s apparent racial status. The second theme is an examination of the fluid nature of racial identity in multiracial family units. Onwuachi-Willig explores the questions of power that emerge when the individual’s interest in defining her racial identity is juxtaposed against the competing interests of family members, the community, and the state. The book’s third, and perhaps most important theme is the racial hierarchy that exists between various types of interracial families, with black-white unions being the most disfavored. Onwuachi-Willig bravely takes on this hierarchy and deftly illuminates the hierarchy’s material and social consequences. Specifically, she suggests that the special disfavor saved for black-white marriages, particularly those involving black women and white men, ensures that wealth does not easily transfer through marriage and inheritance from white hands into black ones.

The first half of Onwuachi-Willig’s book, which focuses on the love affair between Alice Jones and Leonard Rhinelander, is a tragic tale worth reading in its own right. Alice Jones, a working class colored woman, met, fell in love with, and married Kip Rhinelander, the wealthy white prodigal son of a New York society family. When Kip’s father learned of the marriage, he sought to have it annulled. Importantly, although New York law in the 1920s did not prohibit Kip and Alice from marrying, the racial culture of the period made the marriage unthinkable in respectable circles, and law facilitated the enforcement of this cultural understanding.

The central question at the annulment trial was whether Alice had deceived Leonard about her race by telling him she was white, a material misrepresentation that would merit an annulment. If it was established that Leonard knew Alice’s race at the time of the marriage, there would be no fraud, and thus no grounds for an annulment. Instead, a divorce—and the concomitant property settlement and alimony—would be the only vehicle for ending the marriage.

Onwuachi-Willig masterfully uses the Rhinelander tragedy to illuminate all of her themes. She shows that the public ridicule and censure that Alice and Kip faced was not based on discrimination because of each party’s individual’s racial status, but rather, because of “interraciality,” – the threat of cross racial intimacy. The challenges created by a multiracial individual’s fluid approach to racial identification—what I have elsewhere termed “elective race”²—was also central to the Rhinelander case. The proof at trial showed that Alice identified herself as white in certain contexts and colored in others, which Kip’s lawyers argued established fraud. The more likely (and modern) account is that Alice had a very complex and conflicted approach to racial self-identification. Further, Onwuachi-Willig shows that the public opprobrium the couple suffered was in large part prompted by the racial hierarchy that ranks interracial unions—then and now. This hierarchy, which Onwuachi-Willig contends is largely based on the devaluation of black women, relies on the assumption that when white men voluntarily become involved with black women, the attraction is driven by lust rather than a real and substantial emotional connection.

Interraciality is destined to be an important concept because antidiscrimination law and scholarship has largely neglected discrimination triggered by interracial intimacy and connection. Save for discrete theories, like interracial association doctrine,³ race discrimination law is focused on how an individual is treated rather than how he is treated as a consequence of his cross racial intimate and family relationships. As a consequence, the law at present is not based on a full picture of how discrimination operates on the ground and in the most intimate areas of our lives. Onwuachi-Willig’s discussion of the fluid nature of racial identity also strikes a chord, in part because in the contemporary era multiracial persons have made the case for respecting more fluid approaches to racial identification. However, Onwuachi-Willig’s greatest contribution may be her forthright discussion of the racial hierarchy between various kinds of multiracial couplings, the legal foundations of this hierarchy, and the hierarchy’s contemporary material implications.

In sum, the book spurs us to think more deeply about the connection between race, law and intimate life. Indeed, the book transforms common sense, seemingly apolitical attraction and intimacy questions into questions with broad material implications. In this way, Onwuachi-Willig’s book revisits a classic but still important touchstone in feminist legal theory—the notion that the personal is political. She reminds us that our desire for connectedness and belonging, if pursued in an unreflective manner, can be just as much a vehicle for social inequality as the legal restrictions on mixed race coupling declared unconstitutional

LGBTA: Asexuality Becomes a Movement

Jun 2, 2014 Clifford RoskyAdd a Comment

Fourteen years ago, Kenji Yoshino observed that the terms “heterosexual” and “homosexual” were commonly used “as mutually exclusive, cumulatively exhaustive categories”—a usage that casually implied that “bisexuals” and “asexuals” did not exist. In this well-known article in the Stanford Law Review,⁴ Yoshino methodically examined the ways that straights and gays have conspired to “erase” bisexuals. But while he acknowledged that “asexuals are, if anything, more likely than bisexuals to be erased in sexuality discourse,” he regretfully decided “not to attempt a systematic discussion of asexuals in this article.” In light of the “undertheorized divergences between bisexuality and asexuality,” he concluded “that the two topics deserve separate analysis.”

Under the circumstances, it is especially fitting that the Stanford Law Review has published the first law review article on asexuality. In Compulsory Sexuality, Emens demonstrates the payoff of giving asexuality its analytical due. After briefly describing asexuality’s emergence in several discourses, she turns her eye toward the questions of theory and law posed by the rise of this new identity movement.

Part I tells the story of asexuality’s coming out.  In particular, Emens focuses on four events that mark the rise of asexuality in four distinct contexts—conceptual, clinical, empirical, and social/political. In this telling, asexuality emerged as a conceptual and a clinical category in the early 1980s—at least twenty years before it became an object of empirical study, or the social and political foundation of a new identity movement.

As Emens explains, the concept of asexuality is typically attributed to the psychologist Michael D. Storms, who posited asexuality as a fourth “sexual orientation” alongside homosexuality, heterosexuality, and bisexuality in an article published in 1980.⁵ During that same year, the American Psychiatric Association introduced a new clinical diagnosis of asexuality in the Diagnostic and Statistical Manual. Although the diagnosis was initially known as “Inhibited Sexual Desire,” it has since been reformulated as “Hypoactive Sexual Desire Disorder,” and its definition has been marked by controversial revisions that bear striking similarities to the DSM’s early diagnoses of “homosexuality” and “gender identity disorder.”

In spite of these early forays into the subject, asexuality did not become an object of empirical study until 2004, when the psychologist Anthony Boegart reported that 1% of the respondents from a national probability sample of more than 18,000 British residents agreed with the statement, “I have never felt sexually attracted to anyone at all,” and they reported having fewer sexual partners, and less frequent sexual activity with others. During this same time period, a community of self-identified asexuals began to form. In 2001, a self-identified asexual named David Jay founded AVEN, the Asexuality Visibility Education Network. As Emens reports, “AVEN’s membership has grown exponentially in the past decade—from 134 members in 2002, to 26,780 members in 2011, to over 70,000 members in 2013.”

Parts II and III of Compulsory Sexuality provide a careful account of this new identity movement, and an exploration of the fascinating theoretical and legal questions that it presents to scholars and advocates. Part II tackles the task of “mapping asexual identity” through a series of definitional and comparative inquiries. First, Emens notes that asexual identity is defined by a lack of attraction and a lack of choice: Asexuals claim that they have “very little or absolutely no” sexual attraction to other people, and that this lack of attraction is “not a choice.” Next, she observes that asexuals have developed a rich taxonomy of distinctions to mark the boundaries of what counts as “asexual,” and to identify subgroups within the asexual community itself. For example, she notes that some asexuals masturbate, but they do not consider masturbation to be a form of “sex”; some asexuals pursue romantic relationships, but they do not consider these relationships to be “sexual.”

As Emens artfully explains, each of these claims illustrates that asexual identity has been self-consciously articulated “in relation” to other sexual identities—in response to “diversity” within the community of asexuals and “skepticism” from outsiders. Building further upon this relational model, Emens then considers how asexual identity intersects with a long list of other identities—first homosexuality, bisexuality, and polyamory; then gender and disability; and finally as a model of sexual identity based on minoritizing or universalizing conceptions of asexuality, or on orientations toward the quantity, autoeroticism, narcissism, or romanticism of sex. More than anything else in the article, this analysis of asexuality’s intersections offers a lesson in asexuality’s potential to disrupt and transform extant sexuality and identity paradigms—and an example of Emens’ analytical dexterity and revelatory power. Through the lens of asexuality, Emens shows us again and again that there is more to our sexuality and our selves than we could have imagined.

In Part III, Emens offers “a framework for identifying and analyzing types of interactions between law and asexuality,” which she hopes will serve as “a toolkit for advocates and thinkers about asexuality, as they consider what areas of law, if any, they might want to try to change,” and will show “how asexuality can operate as a diagnostic tool or heuristic for identifyingthe ways that law’s interactions with sexuality affect the broader society.” In particular, Emens claims that asexuality and law interact along four analytical axes—(1) legal requirements of sexual activity; (2) legal exceptions to shield sexuality from commodification; (3) legal protections from others’ sexuality; and (4) legal protections for sexual identity. Through this analytical framework, Emens explores the way that asexual identity informs ongoing debates about a broad range of legal issues—the role of conjugality in marriage law, prohibitions on sex work, the maintenance of sex-segregated public spaces, and the benefits and burdens of sexual harassment law. Above all, however, Emens spends the most time considering whether asexuality is likely to be included in federal, state, and local antidiscrimination laws. As Emens suggests, each of these examples reveals another way that law constitutes sexuality for all of us, regardless of how we happen to identify ourselves.

This claim brings us back to the article’s provocative title, Compulsory Sexuality, which refers to Adrienne Rich’s famous polemic on Compulsory Heterosexuality and Lesbian Existence.⁶ In her discussion of a “universalizing” model of asexuality, Emens broaches the most tantalizing prospect of asexuality’s impact. Drawing on Leo Bersani and Eve Kosofsky Sedgwick, she hints at the possibility that we may all be “asexuals” in one sense or another—and as such, we may all be compelled into sexuality by culture and law.

To be sure, Emens remains thoroughly agnostic on such questions—this is an introductory, exploratory piece, far from the lesbian manifesto for which it was named. Throughout the article, Emens shifts between sweeping claims about “people whose experience is in some significant sense asexual, whether or not they identify as asexual,” and comparatively modest claims about the differences between “sexuals” and “asexuals.” Emens cautiously suggests that a “a much milder version of a universalizing account might have something to it”: “Some work suggests that many people go through more or less sexual phases of their lives, and even of their days,” and “it seems plausible to think that everyone—or, to be safe, let us say nearly everyone—has at some point felt a lack of sexual attraction.” “In this context, a universalizing model might lead us to ask whether the common disbelief or skepticism in response to asexuality could be defensive.”

Although Emens concludes these speculations with a prudent “perhaps so,” they seem to identify the most radical threat that asexuality poses to our laws and our culture. More than anything else, the universalizing model of sexuality promises to make good on the prediction with which Emens concludes: “Examining our lives and laws through the lens of asexuality may lead all of us, sexual and asexual alike, somewhere we have not been before.”

Same-Sex Marriage in Windsor and the Indignities of Dignity

Apr 28, 2014 Philomila TsoukalaAdd a Comment

In United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional. The decision renders married same-sex couples eligible for the same federal benefits (i.e., tax treatment and social security benefits) as their opposite-sex counterparts. In the midst of a largely celebratory reception of the decision, Noa Ben-Asher offers a much-needed critical analysis of Windsor’s bundle of rhetorical and doctrinal sticks. In Conferring Dignity: The Metamorphosis of the Legal Homosexual, Ben-Asher takes us through a genealogy of the “legal homosexual” in Supreme Court case law. As Ben-Asher notes, this genealogy begins with moral opprobrium and ends in Windsor’s exalted language about the dignity of state-sanctioned, same-sex couples. Recognizing dignity: Who can be against that, right? Ben-Asher demonstrates that in our post-realist world the story is more complicated.

The first part of Ben-Asher’s contribution is an astute rendering of the Supreme Court’s evolving doctrinal constructions of homosexual conduct and identity. Ben-Asher identifies four stages in what she terms the “metamorphosis of the legal homosexual.” In each stage, Ben-Asher reveals distinct moral assessments of the legal homosexual’s nature and conduct, as well as different understandings of the state’s role in the regulation of morals.

Ben-Asher identifies the first stage with the Court’s 1986 decision in Bowers v. Hardwick, where the Court held anti-sodomy laws constitutional. In so doing, the Court constructed homosexuals as a category of people who engage in same-sex sodomy, initiating an identity-based legal understanding of homosexuality. The moral treatment of homosexuals consisted of outright condemnation. Legislation that was intended solely to regulate morals was deemed constitutionally acceptable. Although the right of privacy had been deployed to invalidate a range of other morality-based laws—laws prohibiting contraceptive use and abortion, among them—under Bowers, homosexuals were rendered sodomites removed from the protection of constitutional privacy.

A decade later, Romer v. Evans inaugurated a second stage in the law’s construction of the legal homosexual according to Ben-Asher. Each one of the discursive and doctrinal elements Ben-Asher identified in Bowers began to shift, amounting to what she describes as the “Equal Rights” phase. The first major change can be observed in the description of homosexuals, who moved from being characterized as deviant sodomites to being characterized as individual members of a protected class of citizens. The act of sodomy disappeared from view, giving way to a binary construction of “gay and lesbian” sexual identity that perforce excluded bisexuals. The moral assessment of homosexuality also shifted from the outright disapproval of Bowers to a more morally neutral posture. The state’s authority to regulate morality narrowed, as Romer held that bare animus towards a class of people was insufficient as a legitimate government interest to support a discriminatory classification.

The third stage in the construction of the legal homosexual, as Ben-Asher explains, can be found in Lawrence v. Texas. Perhaps the most important discursive element in Lawrence was the shift away from an emphasis on homosexual identity to conduct. This time, however, the conduct was not characterized as immoral, libertine sex, but rather as a socially desirable means of constructing a “potentially” more enduring bond between two people. Moral neutrality thus moved into moral recognition of conduct that could potentially lead to coupledom within the privacy of the bedroom.

According to Ben-Asher, Windsor represents the fourth and latest stage in the doctrinal construction of the “legal homosexual.” The potentially enduring couple glimpsed in Lawrence v. Texas has now matured into the same-sex married couple. Moral recognition of the relationship has similarly advanced into high moral praise. The state, previously entitled to legislate morality, then explicitly restrained in such regulation, is now in the position of bestowing dignity on same-sex couples by recognizing their marriages. As Ben-Asher notes, this turn toward legal recognition is another form of morals legislation—the constitutionalized praise of same-sex marriage.

The Windsor genealogy that Ben-Asher offers is important because it underlines how the rhetorical and doctrinal contours of the current construction of the legal homosexual have emerged out of previous case law. The prior stages in this metamorphosis set the stage for the next, such that Windsor’s account of “dignity’” ends up being a partial overcoming of prior constructions, rather than an all-out rhetorical and doctrinal victory for same-sex marriage proponents.

This last point becomes evident through Ben-Asher’s critical engagement with the concept of dignity, which constitutes the article’s second distinct contribution. As Ben-Asher demonstrates, Windsor’s notion of dignity is not the universal, all-encompassing human dignity imagined by liberal philosophy, but a rather stingy, limping dignity, that comes with strings attached to it. The state decides who is and who is not worthy of this dignity. Ben-Asher further argues that even though the religious view of marriage as a sacred institution is not explicitly addressed in Windsor, it, nonetheless, provides one of the most important “conceptual links” to the concept of dignity in the decision. The other such link is marriage’s normalizing power, its capacity to convert presumably wildly libidinal homosexuals to monogamous coupledom. Ben-Asher argues that even though neither one of these ideas is explicitly addressed in Windsor, its concept of dignity “is hardly intelligible” without them. The problem, Ben-Asher argues, is that the sacralizing link to Windsor’s dignity is not appropriate in a liberal state, while the normalizing link entails a negative idea of human sexuality that in itself is based on dubious moral grounds.

Ben-Asher’s final critique of Windsor’s dignity lies in its capacity to create injured subjectivities. Accepting Windsor’s bestowed dignity implicitly accepts that same-sex couples should feel harmed and humiliated in states that don’t recognize their unions, even if they currently do not. Forming a group identity based on injury risks shaping subjects “unable to articulate new values, new ideas, new morality, and new alternatives.” Ben-Asher ends with a brief call for a discursive strategy that relies neither on injury nor on Windsor’s thin conception of dignity. She calls for a state that would not distribute dignity but rather recognize it equally for all citizens without implying that marriage enhances one’s dignity.

Assuming that we take on Ben-Asher’s call for liberal human dignity as a doctrinal strategy, how far might that take us? Marriages internalize dependency costs (and can legally be obliged to do so), performing a function that other societies have chosen to assign to the state in its basic welfare provisioning. The dignity of marriage is perhaps a discursive carrot that we provide in our constant effort to channel people into an institution that we have structured as welfare-enhancing, especially against the background of minimal public involvement in the costs of dependency. The dignity of married people is indeed a hierarchical concept. Their dignity implies the indignity of singles, in much the same way that the dignity of the employed carries within it the indignity of the unemployed and welfare-dependent. It may be that we are dealing with a functional equivalent for the sacralizing link to married dignity that Ben-Asher identified. This functional sacralization of marriage might be hard to disturb without reconsideration of other basic institutions such as the welfare state, and without treading well beyond the confines of constitutional doctrine. Ben-Asher’s insightful venturing into some of the indignities of dignity in the constitutional law field opens up fruitful terrain for further inquiry.

Lots of Love for this Loving Analysis

Mar 26, 2014 Angela Onwuachi-WilligAdd a Comment

Few authors can bring cases and their meaning(s) alive like Professor Bennett Capers. Capers does not disappoint with his recent chapter The Crime of Loving: Loving, Lawrence, and Beyond. Capers provides a criminal law lens for family law scholars to further examine and understand the landmark decision, Loving v. Virginia. In Loving, the Supreme Court struck down Virginia statutes that criminally prohibited and punished marriage between Whites and non-Whites as violations of equal protection and due process. In reconsidering this landmark case through the lens of criminal law, Capers exposes the power of “white-letter law,” which “suggests societal and normative laws that stand side by side and often undergird black-letter law, but . . . [that] remain invisible to the naked eye.” (P. 120.) More so, Capers beautifully reveals how “Loving and Lawrence both serve as cautionary reminders of the long leash we have given to criminal law.” (P. 125.) He details the many ways in which criminal law has been used to regulate and shape many aspects of our personal and social lives. Noting such regulation has occurred through the use of “a whole host of victimless crimes,” such as adultery, gambling, pornography, and premarital sex, Capers joins scholars such as Melissa Murray in exposing the often-ignored manner in which criminal law is used to invade citizens’ privacy and enact a moral code upon behaviors that are not generally associated with criminality.⁷

Capers begins his chapter with a compelling narrative that provides a vivid picture of Loving’s limited impact on towns such as his hometown of Charleston, South Carolina. Capers starts by comparing the “Charleston of [his] youth,” a place that “had only one interracial couple” with Richard and Mildred Loving’s hometown of Central Point, Virginia, a rare, integrated community in the South “in which [the Lovings] knew they could live as husband and wife . . . . a place where they would be welcome . . . . a place they could call home.” (Pp. 114, 118–19.) The difference, Capers explains, was not the black-letter law in the two locations; after all, interracial marriage was illegal in Virginia at the time the Lovings got married, but was legal in Charleston—and indeed, nationally—during his youth. Rather, the difference was in the white-letter law, the extralegal prohibitions “that reminded people of their place and reminds them still.” (P. 116.) As Capers makes clear, “Brown or no Brown, Loving or no Loving,” the Charleston of his youth and of today includes very few interracial families because “people kn[o]w their place.” (P. 116.) Indeed, Capers implies that a black-letter prohibition was unnecessary to maintain this status quo. He writes:

[I]t is hard for me to imagine a black person and a white person falling in love there. The blacks in Charleston, unlike the blacks in Central Point [many of whom were mixed-race like Mildred Loving], tend to be very black—“pure black,” outsiders sometimes say—so much so that the few light-skinned blacks that are there are still viewed with a mixture of envy and suspicion. And it is all but impossible for me to imagine a black person and white person, as a married couple, wanting to stay there, or being welcomed there. . . . And race is still everything for South Carolina, as the controversies over the Confederate flag and interracial dating at Bob Jones University attest to. It is a place where miscegenation was so unthinkable that for the longest time, no black-letter prohibition was necessary. (P. 119.)

Noting that Loving “did little to disrupt the white-letter law of racial trespass,” Capers also highlights how the policing of interracial intimacy, not just in South Carolina, but also nationally, is (and was) influenced by both race and gender, as evidenced by the disparate policing of and punishment for relations between black men and white women and the limited prosecution of rape and assault of black women by white men. (P. 120.) He explains, “[i]t was primarily interracial intimacy between black men and white women that was policed. Intimacies between white men and black women, as long as kept on the down-low, enjoyed a white-letter exemption.” (P. 121.)

Critically, Capers analyzes the differences and connections between Loving and Lawrence v. Texas, adding another complex and important layer to his analysis of Loving. As he observes, both cases involved interracial lovers, and both cases involved the use of criminal law to regulate “outsider” intimacies, but gender, or rather, the absence of any gender difference between the actors in one of these cases, has played an important role in shaping the different ways in which Loving and Lawrence were viewed and have been considered. Through his comparison of the two cases, Capers reveals how “sexual sameness” can often trump racial difference, as it arguably did in Lawrence, where no mention is made of the defendants’ races at all and instead “the gay black man in Lawrence [is] treated as white.” (Pp. 125–26.) Capers also exposes how “sexual sameness” among couples—in a land of presumed heterosexuality—may raise no eyebrows and may even work to advantage a black person in a same-sex, interracial couple (such as Capers himself) by, for example, explaining his presence in a predominantly white neighborhood. As Capers poignantly reveals:

In my darker moods, I tell myself that, partnered with a white man, I am marked as safe, I’m allowed to pass through. Sometimes, when my mood is darker still, I use the words “assimilated” and “domesticated.” Me, marked as assimilated and domesticated, allowed to pass, I become not black. Black no more. Or, at least, a good black. (P. 127.)

In all, Capers provides a sobering account of the history (and enduring presence) of criminal law’s reach (as well as the reach of social norms) on love and intimacy.

In the end, Capers leaves us with a hopeful outlook. He finishes with sweet sentiments about his own love and interracial marriage and concludes with a comment that perhaps he was wrong when he “said before that Loving, like McLaughlin [v. Florida] before it and Lawrence after it, began with a tip and arrest.” Implicitly recognizing intimacy’s triumph over the force of the criminal law, Capers instead notes:

Loving, I’m sure, began with a look.
With a kiss.
With love.
I’m sure. (P. 127.)

Such beautiful, honest, and courageous moments in Capers’s chapter, along with Capers’s searing analysis of the Loving and Lawrence cases, make The Crime of Loving well worth reading.

Denaturing the Family

Feb 25, 2014 Katharine Bartlett1 comment

Legal scholarship has been increasingly attuned to the role of performance in constructing legal norms. In Staging the Family, Clare Huntington brings this sensitivity to family law. Accordingly to Huntington, people act out the “collective understandings of mother, father, child, and the family itself.” These collective understandings reflect and perpetuate the law’s definition of the family and the rights and responsibilities of its members. Through this mutually reinforcing process, the law’s participation is “normatively narrowing” because it recognizes and thus reinforces only the prevailing, “dominant” images of the family. A consequence, Huntington argues, is that the law has ignored “seismic demographic changes in family form” such as nonmarital families, cohabitation, same-sex couples, and assisted reproduction. In replicating dominant family forms, the law has also idealized them. By reproducing “[o]verwhelmingly positive images of the family,” Huntington writes, the law has approached child sexual abuse “as a problem of strangers lurking in the shadows” rather than a problem within families themselves. (P. 595.)

At the root of the law’s conservatism is that it treats the dominant image of the family as the “natural” one. Huntington’s proposed solution is to “decenter ” or “denature” those dominant images. Operationally, this means “recognizing broader social fronts so that no one performance takes precedence over all others” (P. 640), giving “far greater leeway to parties to decide for themselves whether they constitute a family” (P. 641), and, in the child welfare arena, moving away from “set scripts that reinforce dominant images of family.” (P. 644.)

This is an important article. In it, Huntington focuses on the important ways in which people perform family roles in the shadow of the law, are judged and limited by that law, and at the same time reinforce it. While this may seem a familiar point about the social construction of law, surprisingly little recent scholarship has focused on family role performance as a primary vehicle in the legal construction of the family. In any case, the point has not yet seeped deeply into the public’s consciousness. Given the continued resilience of beliefs that family norms are God-given and natural, this point deserves all the attention that it can get.

But what are the normative implications of Huntington’s observations? Here the issue gets more complicated. In the article, Huntington makes two significant moves. First, she suggests that the recognition that laws come from people, not nature, should make decisionmakers more flexible about the options for family formation and open to alternative family forms. Second, she argues that if decisionmakers are flexible about the options, they will accept the more inclusive and progressive family law agenda that she supports.

On the first point, Huntington is right. When the definition and treatment of families must be justified apart from age-old assumptions about what is given by nature or mandated by God, everything is open for debate. When no policy argument can be trumped by an authority that need not answer to reason or argument, more alternatives are possible.

But is it clear that if the link between the current legal conception of the family and nature could be broken, a progressive family law agenda would prevail? This remains to be seen. We cannot be sure that denaturing the family takes us anywhere in particular. If no single state definition of family is the natural one, this leaves the state free to expand, or limit, the definition in any direction—toward the most restrictive, two-parent married heterosexual family, as well toward the more diverse, modern families Huntington wishes the state to recognize. What kinds of families the state will recognize has depended, and will continue to depend, upon the state’s values and priorities, even as the justifications change. As we have seen, especially in the abortion arena, these values and priorities can waver back and forth; they do not evolve in one single, progressive direction. To the extent that individuals “perform” their family roles in ever more non-conforming ways, these performances may well influence the state, but they can also create perceived “excesses” to which the state may respond with disapproval.

It seems to me that denaturing the family leads to Huntington’s more progressive family law policies only if, once the concept of the natural is abandoned, the family goals and policies that make sense to Huntington are also the ones that make sense to state decisionmakers. I hope they do. The hard work continues.