Yearly Archives: 2015
Jun 24, 2015 Darren Rosenblum
Michael Boucai,
Glorious Precedents: When Gay Marriage was Radical, 27
Yale J.L. & Human. 101 (2015), available at
SSRN.
Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara. It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.
Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work, prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage.
As Boucai documents, the radicalism of this group of plaintiffs appears particularly foreign when viewed from a contemporary perspective. Unlike the rights perspective that guides many current debates, or even the queer perspective that arose in the 1990s to engage critical thought about rights, these early marriage cases, Boucai argues, reflect the gay liberation movement’s radical utopian foundations. As this movement began to seek rights, it drew on central political precepts such as the struggle against racism and, in particular, sexism. Gay liberationists drew on feminist efforts to rework societal sex roles, including an opposition to the patriarchal nuclear family. In this climate, coming out was viewed as a central political act, a gay variation of the feminist exhortation that “the personal is political.” Likewise, the embrace of sexuality was also central. During this period, when even married suburbanites hosted “swinging” key parties, gay men and lesbians also embraced a new eros, rushing to create what Michel Foucault called “laboratories of sexual experimentation.” Indeed, the name of the organization run by one of the early gay marriage plaintiffs, Jack Baker, Fight Repression of Erotic Expression (“FREE”), reflects the centrality of sexual liberation to the movement.
Within this historical context, Boucai locates the Baker, Jones, and Singer plaintiffs both as litigants and as movement participants. On this account, these cases were not simply bids to access marriage, but bold salvos against heteronormativity. As Boucai explains, these plaintiffs, perhaps guided by low expectations for success, were bold and innovative in crafting the legal arguments for marriage equality. Several arguments focused on the then-recent developments in sex-discrimination law to mine the radical potential for leveling all restrictions on sex including whom one can marry. This argument, when raised by Justice Roberts recently in Obergefell v. Hodges, still surfaces much controversy. Not surprisingly, courts dismissed the arguments—and these cases—out of hand. The creative arguments, brought by a variety of plaintiffs who explicitly embraced sexual liberation, provide a marked contrast with the deliberate and strategic methods of more recent marriage litigation.
Boucai also highlights intra-movement discord, specifically how the more conservative and closeted homosexuals opposed each of the cases. This radical-reformist divide in gay political efforts became apparent a decade later in Larry Kramer’s The Normal Heart. In response, the plaintiffs embraced the radical, not the reformist, stance. Given the small chances of success for the litigation, and the plaintiffs’ awareness that marriage was a target rather than a goal, the lawsuits functioned as vehicles for public protest. For example, the Baker plaintiff organized a “zap” protest action, with champagne and a wedding cake, to highlight the pending lawsuit and to come out in a highly visible and political fashion. The couples resisted social definitions of sex roles in their communication with the press, demanding a full-scale reappraisal of marriage and sexual relationships. Indeed, one of the couples had a relationship more akin to what we might call “friends with benefits,” and the suit did not seek to formalize their unorthodox relationship, but rather to render gay life and sexual liberty more visible. They sought to demonstrate that sexual exclusivity, monogamy, and even the sexual relationship itself were invidious elements of the marital relation – that anyone should be able to marry for any reason, including to flout the norms associated with the institution.
Even as he uncovers this lost history, Boucai does not linger on why it has been forgotten. The splits between gay and feminist movements, the retrenchment forced by AIDS, and the subsequent cultural visibility and the concomitant establishment of an increasingly legitimized minority all contributed to the loss of this history and the arguments that undergirded it. Rights-seeking activists, using less radical techniques, gradually took precedence within the gay rights movement (with ACT UP and Queer Nation as notable hybrid exceptions). I remember attending the planning council for the 1987 gay rights March on Washington at which Gay Men’s S/M Activists (GMSMA) held a seat on the planning committee. Such groups disappeared from national political efforts in the subsequent years. As the gay rights movement legitimized itself, organizers suppressed community elements that undermined mainstream acceptance.
Boucai’s methodological rigor, with its hint of nostalgia, renders the piece irresistibly alluring. His concerted and fascinating historical work reflects a broader curiosity about what gay liberation meant and marks many paths for future inquiry. Boucai’s renewed embrace of sexual liberation reminds us that the established LGBT-rights movement stands on top of a liberationist, anti-patriarchal agenda that would upend sex, gender, and sexual stereotypes. At a time when identitarianism continues to define lesbian and gay equality efforts, it is my hope that Boucai’s crucial intervention might revitalize moribund debates over the law’s direction with regard to sex and sexuality.
[Editor’s note: for a previous review see Elaine Craig, A Queer Story of Same Sex Marriage.]
May 22, 2015 Melissa Murray
In recent years, anti-abortion advocates have argued that abortion harms not only a developing fetus, it also harms the woman who chooses to terminate her pregnancy. These arguments, which Reva Siegel has termed “woman-protective anti-abortion argumentation,” have made their way into abortion jurisprudence. In the 2007 case Carhart v. Gonzales, a majority of the Supreme Court characterized abortion as “a difficult and painful moral decision” that may cause women profound psychological, physical, and emotional harm.
In response to these arguments and the judicial decisions that entrench them as truths, pro-choice advocates have sought to recast abortion in a more positive light. Katha Pollit’s recent book, Pro: Reclaiming Abortion Rights, seeks to strip abortion of its stigma by reframing it as a common part of a woman’s reproductive life—one that may have positive implications for the woman, her family, and society. Similar themes have surfaced in popular culture. In the 2014 movie Obvious Child, Donna, a struggling twenty-something, becomes pregnant after a one-night stand and decides to have an abortion. Donna’s decision is utterly devoid of the usual angst and drama that attends television and film depictions of similar scenarios. Indeed, she is matter-of-fact about the decision, never contemplating the possibility of raising the child herself or giving it up for adoption. More radically, Donna is no worse for the wear after her abortion. Indeed, she is pleased with her decision, confident that it was the right choice for her.
Amidst these popular efforts to recast abortion in a more positive light comes Khiara Bridges’s excellent article, When Pregnancy is an Injury: Rape, Law, and Culture. In the piece, Bridges considers criminal sexual assault statutes that characterize a pregnancy that results from rape as an injury—beyond the rape itself—to the victim. As Bridges observes, these criminal statutes are notable not simply because they identify those circumstances in which the crime of rape is aggravated and subject to heightened penalties; but because they construct pregnancy as an injury to women. As Bridges explains, the construction of pregnancy as an injury “runs counter to positive constructions of pregnancy within culture.” But it is not just that these criminal statutes disrupt the conventional narrative of pregnancy as a beautiful and blessed experience; by reframing pregnancy as an injury, the criminal sexual assault statutes also provide us with an opportunity to reconceive abortion as “a healing modality, serving to heal a woman of her injury.”
There is much to admire about this article. Unlike much of reproductive rights scholarship, which often focuses on doctrinal developments in the law, the article takes an anthropological approach, documenting the interaction between law and culture in constructing the ways in which we understand pregnancy and abortion. In so doing, the article yields trenchant insights about the role that law may play in shaping our cultural understandings of abortion and pregnancy and vice versa. For example, in discussing the range of sexual assault statutes that provide for heightened penalties when a rape results in pregnancy, Bridges makes clear that the statutes are “somewhat exceptional because . . . [they] reflect subversive understandings of pregnancy” that are at odds with prevailing cultural and legal views, which celebrate pregnancy as a good thing for women, even in circumstances where pregnancy is unwanted and unplanned.
To underscore this point, Bridges canvasses a range of legal contexts where pregnancy, despite its risks and challenges, is almost always figured as a good thing. Consider cases of wrongful pregnancy or wrongful conception, where parents sue after a provider’s negligence results in an unwanted pregnancy. In these cases, courts do not “recognize that a woman who bears a pregnancy only because of the negligent provision of contraceptives or a negligently performed abortion or sterilization—that is, a woman who bears an unwanted pregnancy—experiences that pregnancy as an injury.” Instead, the injury that courts do recognize is the denial of one’s reproductive rights and the economic costs associated with pregnancy. Through this selective recognition, Bridges argues, law subtly asserts that “pregnancy itself is a good thing.” That is, even as it shifts the “monetary costs associated with pregnancy,” law stubbornly insists on framing pregnancy as a benefit to women. Certainly, it is a benefit that “may result in some burdens . . . . [b]ut it is not an injury.”
To be sure, there are contexts where pregnancy is framed more ambivalently or even negatively—the pregnancies of women on public assistance and the pregnancies of women employees, come to mind. But even in these contexts, the negative framing does not render a more accurate account of women’s experiences of pregnancy. In these contexts, Bridges explains, the injury of pregnancy is not an injury to the woman, but rather an injury to the body politic—the public or public resources. In this way, even these negative treatments of pregnancy underscore the larger cultural message that pregnancy is a positive experience for women.
And because pregnancy is framed as a positive experience, abortion is necessarily framed as a negative experience. It is the quintessential injury—one that not only harms the fetus, but also injures the woman herself. In this way, Bridges argues, law helps to shape a cultural narrative in which a woman’s interest in abortion is stigmatized and delegitimized.
On this account, the sexual assault statutes’s view of pregnancy as an injury is not just subversive in the way it reframes pregnancy; it also undermines the prevailing view of abortion. In stark contrast to Gonzales v. Carhart, where abortion is presented as a danger from which women must be protected, the reframing of pregnancy as an injury allows abortion to be recast as a means of healing the injury of pregnancy. In this regard, pregnancy as an injury has the radical potential to shift the nature of abortion discourse. If abortion is recast as a healing modality, then the procedure itself—and the woman’s desire for it—is not a much-regretted choice that causes profound anxiety and despair, but rather, is a legitimate choice that may be positively experienced. In this way, refocusing our discourse to accurately reflect the bitter and the sweet of pregnancy allows law to better understand and reflect women’s interest in, and experiences of, abortion.
But what is perhaps most interesting about this article is that it makes clear that the reframing of pregnancy and abortion that it champions is not necessarily new. As Bridges explains, early pro-choice advocacy explicitly characterized unwanted pregnancy as an injury and abortion as a means of healing that injury. However, as anti-abortion advocacy shifted from emphasizing abortion’s harm to the fetus toward emphasizing the perceived harms of abortion for women, this earlier understanding of pregnancy and abortion fell out of favor—and out of our collective memory. By unearthing this lost view of pregnancy in (of all places) sexual assault statutes, Bridges makes clear that these arguments were once a vibrant part of pro-choice advocacy—and that they could be once again.
Apr 20, 2015 Kerry Abrams
Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.
In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families.
In contrast, when the law regulates the family intentionally, it often does so in what Huntington characterizes as a “reactive” mode. Families encounter the law when they are in crisis—for example, at divorce, or when a shared parenting arrangement has broken down, or when family bonds have been eroded by violence. The state then enters to solve—or, at least, adjudicate—the problem, and then disappears once a resolution appears to have been achieved. But by then this intervention may be too little, too late. Family relationships have become adversarial, and a litigation model of dispute resolution only exacerbates the breakdown in trust and communication that the family is already experiencing.
Huntington proposes a radically different model, one in which the state’s aim is not to intervene in crisis, but instead to assist families in flourishing from their inceptions to their breakdowns to their repair. Unlike traditional family law, under Huntington’s model the state might be purposefully involved in a family’s life during many phases of its existence. Huntington draws on positive psychology, a field that studies the conditions that lead to human flourishing, rather than focusing on disease and dysfunction. If we can figure out what makes families flourish, she argues, we can craft state interventions that support families rather than working to undermine them.
The proposals that Huntington develops using this model are varied and paradigm-shifting. Some of her interventions would happen early in the family formation process. She would, for example, involve the state in assisting new parents. Rather than waiting for an individual to fail (by, for example, committing child abuse or neglect) and then intervening to terminate the parent’s rights, the state would instead proactively assist a new parent, especially those most at risk of committing abuse or neglect, by providing education and hands-on assistance early in the child’s life. Just as a good diet and exercise can prevent long-term medical problems down the road, so can early intervention prevent family crisis. As a real-world example of this type of program, Huntington describes the Nurse-Family Partnership, a program now serving first-time mothers and their infants in forty-three states. The program provides at-risk mothers with in-home visits beginning in pregnancy and lasting through the first two years of the child’s life, parenting skills training, and counseling to assist mothers with educational and career planning.
Huntington also advocates for other methods of state involvement with an eye to fostering family strength. She is a particular fan of the “New Urbanism,” an architectural and planning movement that encourages the building of new communities, and revitalization of older ones, so that housing, schools, shopping, and parks are all located within a short walk of each other. Huntington calls this “shrinking the home, work and school triangle,” and the effects on families can be very positive. Walking outdoors leads to friendships with neighbors, which in turn leads to networks that can provide shared child care arrangements, support during difficult times, and increased neighborhood safety. Huntington also takes on the current impediments to the formation of long-term relationships, especially in poor communities, including the high incarceration rates of African-American men and marriage penalties built into means-tested government programs. Access to free contraception and education, she argues, can also help women to delay childrearing until they have found a stable partner. Finally, legal recognition of a broader range of families than the traditional nuclear family would lead to greater stability for those families.
Not all of Huntington’s proposals focus on early intervention. Instead, some of the reforms she espouses are aimed at changing the way the state intervenes when a family is in crisis. Huntington observes that the current system assumes a conflict and resolution, but that most divorce and custody disputes do not match this model. Again drawing on psychological research, she argues that the law circumvents a key step in the cycle of intimacy, which includes a period of guilt followed by repair. Courts focus more on assigning blame and creating a “clean break” to relationships. This emphasis can disrupt the natural cycle of repair and prevent a former couple from becoming effective co-parents. In any divorce or break-up where children are involved, the relationship between the parents does not actually end. Instead, it must be transformed into something new. Huntington urges that we pay more attention to the relationships that will continue to persist after legal action ends and to encourage the divorce and custody dispute process to be less adversarial, through reforms in family law teaching, legal practice, and the adoption of new approaches to dispute resolution, such as the collaborative lawyering movement.
Huntington recognizes that a primary objection to her proposals may be that it puts too much faith in the state at the expense of family autonomy. She counters this objection with the observation that the state already pervasively regulates families. The question, she argues, is not whether the state will be involved in family life—we can’t escape that—but instead how. Her goal is to “redirect the pervasive state so that it encourages strong, stable, positive relationships within the family.” Getting there will require extraordinary efforts on many fronts. Huntington’s book gives us the roadmap for how to begin.
Mar 24, 2015 Katharine Bartlett
Two truths that feminists hold to be self-evident are: (1) that this society requires a more pro-active, supportive state that recognizes the fact of dependency and assumes some responsibility for the needs that dependency creates; and (2) that when the state intervenes in the lives of poor, minority women, it discriminates against and penalizes those most in need of its support. Advocates of each proposition generally also adhere to the other as if the two propositions were completely compatible: Those making the case for a supportive state adopt as a principal goal the reduction of society’s profound inequalities, while critics of the state’s discriminatory intrusions into the lives of the poor take for granted the necessity for state interventions to address dependency.
Wendy Bach’s article advances both propositions sympathetically—so sympathetically that the reader initially might understand the article to be primarily a celebration of the convergences in feminist insight. But read on. The work is, above all else, a caution. The case for a supportive state is a powerful one, she argues; yet current institutional realities mean that state-sponsored programs typically make women more vulnerable, not less. This is not inevitable, she argues, but to avoid it, reformers need to pay more attention to the specificity of the mechanisms the state employs. Otherwise, Bach argues, calls for a more supportive state may yield measures making it easier for middle-class women to work and raise children, but they won’t dismantle the punitive mechanisms that so acutely affect poor women and minorities. (P. 329).
Most of Bach’s article is aimed at deepening our understanding of the institutional realities of poor women’s lives. In furtherance of this goal, Bach identifies a phenomenon she calls “regulatory intersectionality,” which refers to the interlocking nature of state’s social welfare apparatus and its criminal justice process. These systems, she argues, act in concert. “[I]nformation that is deemed to indicate non-compliant and/or deviant conduct travels from the original social welfare system into other even more punitive systems,” where it functions “to impose ever-heightening penalties on the families that seek assistance.” (P. 337). The result is a network of hyperregulation that is highly targeted by class, race, and place.
The examples Bach uses to establish the phenomenon of regulatory intersectionality are familiar ones—mandatory drug testing of pregnant women and referrals of women who test positive to the criminal justice system; child protection interventions that systematically penalize minority families for their poverty; and welfare conditions (including more drug testing) that invade the privacy rights and security of these same families. In each of these regulatory areas, she argues, the problem is not simply that a state committed to the principles of free market economics, autonomy and self-reliance wrong-headedly ignores dependency and vulnerability, but also that the state’s interventions typically expose women to “more and more . . . punishment and social control.” (P. 368).
Is it too much to expect a state to be both supportive and non-intrusive? Bach concludes that it is possible, and that if privileged women put themselves in the shoes of the poorest, most vulnerable women, it would be “not so difficult after all” to imagine what form that support should take. (P. 379). This imagining leads to Bach to favor programs that are more universal in scope, like the Earned Income Tax Credit, as well as “more privacy protections and higher bars on surveillance and monitoring,” “higher walls between support system and punishment systems,” and “significant caution in the face of calls for coordination and collaboration.” (P. 376).
Bach’s article is an important heads-up to family law reformers who view a more supportive state as the route to greater equity for women and families. Indeed, the challenge Bach poses is so daunting that it is not clear that the solutions she herself offers are sufficiently robust to address it. What this article reminds us, however, is that without greater sensitivity to the damage a “supportive state” can wreak, efforts in the name of the supportive state may end up doing more harm than good.
Feb 18, 2015 Cyra Choudhury
Anne Alstott,
Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77
Law & Contemp. Probs. 25 (2015)
, available at
SSRN.
The problem of economic inequality has become a staple of news, social media, and public commentary particularly since the aftermath of 2008 financial crisis. The growing gap between the one percent and the rest provided an issue around which public protests such as the Occupy movement could be organized. And while addressing the many effects of inequality is complicated in its particulars, the need for redistribution as a central legal and policy value has been evident to critical scholars. Redistribution in the form of better social safety nets, a more progressive taxation scheme, and the closing of loopholes all have become more commonplace policy prescriptions, although legislation on these issues has been slow to materialize. Family law scholars and activists have also suggested that reforming policies to ensure more support to families, such as paid family leave and assistance with child care, would also have beneficial effects for working parents and the country’s economic bottom line. Even as the United States lags behind all other industrial nations and many developing ones in providing these supports, legislating changes aimed at providing resources that “make family life possible” has been remarkably difficult. The question that lingers is why?
Anne Alstott’s essay, Neoliberalism in in U.S. Family Law, offers an answer. Alstott argues that neoliberalism, which she defines broadly as a commitment to free markets and laissez-faire economics coupled with a commitment to negative liberty and a minimal state, makes it nearly impossible to claim any positive rights and distribution of resources from the government. She explores the pervasiveness of neoliberalism in three areas of family law –federal constitutional law, state family law, and federal and state welfare law — deftly drawing connections among these discrete doctrinal fields to advance her central argument:
The entrenched neoliberalism of family law is frustrating for many reasons, not least because it blocks sustained consideration of a more appealing liberalism. Negative liberty, as important as it is, is insufficient for justice. We can imagine—indeed, other countries have adopted—constitutional interpretations that convey positive rights. We can also imagine—and again, other countries have enacted—law that looks beyond the minimalist task of settling private disputes and instead aims to correct market distributions and promote a family life open to all. (P. 26).
In other words, the law continues to maintain the view that families are best served with minimal regulation from the government and that private ordering or free market resource allocation is preferable to government-imposed redistribution. These two pillars of neoliberalism are reflected in the legal decisions and enactments that frame the family in the United States.
Part II of Alstott’s essay explores the minimal state and negative liberty in federal constitutional family law. She juxtaposes the numerous decisions that sound in negative liberty, which prevent the government from intruding upon familial privacy (Loving, Griswold, Roe v. Wade, and Lawrence), infringing parental rights (Meyers and Pierce), and allow it to deny any duty to protect vunerable individuals within families (DeShaney) with decisions denying rights to resources. She argues that while negative rights like privacy receive strict scrutiny, positive rights and distributive policies like welfare and taxation receive only rational basis review, nearly immunizing them from constitutional challenge. For instance, examining the welfare cases, Alstott demonstrates that there is no positive right to state support. The state can cap welfare benefits without regard to family size (Dandridge v. Williams), refuse to provide public housing or adequate schooling, and limit the amount of time a recipient can receive public assistance. Moreover, the state can deny benefits to children because of the actions of their parents. Even a landmark victory for welfare recipients such as Goldberg v. Kelly only guarantees a procedural right to be heard before the termination of welfare benefits—it does not assure a right to substantive benefits. Viewing the jurisprudence of negative liberty and welfare rights in tandem, Alstott argues that there is an “asymmetric pattern of federal constitutional protections for family life.” (P. 29). In other words, these two lines of decisions harmonize in such a way that even though one has a right to family, one has no right to the resources required to sustain that family. Indeed, there is no right to the resources needed “to marry, to divorce, or even to remain alive….” (P. 29).
Unfortunately, the family fares no better at the subconstitutional level. In Part III of the essay, Alstott demonstrates how state family law privileges private ordering by reinforcing market outcomes and forcing families to bear the costs of reproducing society and the next generation of Americans. Further, between spouses, the state has come to demand private negotiation and ordering as marriage has evolved from a status to contract. With the advent of no-fault divorce and legislation encouraging divorcing couples to reach agreement on matters of property, support and child custody, the state continues to place the onus on achieving justice at dissolution on private, supposedly bargained-for, settlements. While there are limits to what can be negotiated—for instance, a parent cannot bargain away a child’s right to support—on most other issues that arise in divorce settlements, the courts rubber-stamp agreements without much inquiry into the ultimate fairness or justice of the outcomes.
Alstott raises a number of critical questions that are prompted by the state’s preference for private ordering. As an initial matter, she challenges the pervasive assumption that most families have resources that can be allocated through negotiation. As she explains, most families have few material resources and struggle to support themselves, particularly in economically perilous times. At dissolution, with the loss of economies of scale, these difficulties are compounded. If spouses strike poor bargains for support, or are unable to secure any support because of poverty, they are left to shift for themselves and to subsist on inadequate government support. Even in these dire circumstances, neoliberal assumptions regarding individual choice and agency result in the forced internalization of consequences. The state requires parents who cannot afford to support their children to bear most of the costs of their poor choices or bad luck. Women who trade away support in order to gain child custody are left to support their children the best they can with minimal state intervention or assistance. Poverty becomes an individual moral failing that must be borne by the responsible party.
This depressing outlook makes clear that the family, rather than the state, has become the main institution responsible for the welfare of citizens. As Alstott points out, “welfare programs in the United States provide only minimal and grudging resources for family life.” (P. 38). No resources are constitutionally mandated and those that are provided come with erosions of privacy and increasingly onerous requirements like mandatory drug testing, employment, and lack of a criminal record. Poverty alleviation programs have been eroded over time and continue to reinforce the neoliberal vision of individual merit and industriousness as the best way out of difficult circumstances. Moreover, unemployment benefits and Social Security rewards those who have had on-the-books employment, thereby precluding from their ambit some of the most vulnerable people in our society. The recently enacted Affordable Care Act (ACA) continues this trend by balancing neoliberal ideas with expanding access for the poor. The ACA provides health care benefits to middle class workers “by relying on private-market insurance providers.” Those who are unemployed or otherwise ineligible for coverage through their employers are provided with government subsidies that allow them to purchase insurance coverage privately. In this way, although the program expands health care coverage, the provision of health care is secured through privatization, rather than the expansion of the public safety net. Likewise, public education, perhaps the cornerstone of what might be called a “welfare state,” has been critiqued for being unequal, increasingly racially divided, and inadequate.
Alstott argues that negative liberty, the free market, and the minimal state have not insured the wellbeing of families. In the absence of positive constitutional rights to state support, families are left to divide market earnings and courts are left to adjudicate claims among individuals in the family. The law will not “aim to correct market distributions and promote a family life open to all”. (P. 26). Without the space for a more expansive vision of the state’s role in the family and adequate provision of support for those who are economically underprivileged, the forced internalization of the costs of reproducing the next generation, the care of elders, and shifting of welfare functions to the family will result in continued increases in inequality and social stratification. Alstott’s critique is a welcome addition to a body of literature generated by material feminists and progressives outlining the inadequacies of negative liberty, formal equality, and the erosion of the welfare state. Critical race feminists have further argued that the lack of state support for families disproportionately impacts racial minorities and that inequality is widening along racial lines. Here, Alstott’s approach analyzes family and welfare jurisprudence and legislative developments in tandem to draw connections that reveal how the two fields maintain neoliberalism and prevent progressive attempts at redistribution. In so doing, she offers a valuable corrective to the isolated analyses that currently prevail. Elaborating the argument to include analysis of the structural impediments that minorities confront would complete the unfortunately dismal picture.
