Yearly Archives: 2016
Apr 26, 2016 Kaiponanea Matsumura
Justice Kennedy raised some hackles when he said in Obergefell v. Hodges that “[m]arriage responds to the universal fear that a lonely person might cry out only to find no one there.” Some wondered how Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—one widowed, one never married, and one long-single—must have felt to sign on to an opinion grouping them together with other souls “condemned to live in loneliness.” Others criticized the opinion’s rhetoric as unnecessarily demeaning to life outside of marriage. Justice Kennedy’s disparagement of single life might have been lamentable, but it usefully highlights a common experience of those who do not participate in the social institutions—sex, partnership, organized religion, and child-rearing—that society deems fundamental. Such individuals often find themselves the targets of marginalization, animus, or unfair treatment under the law.
In her thought-provoking article, Negative Identity, Nancy Leong brings together several of these identities—atheist, asexual, single, and childfree—and builds a case for their protection. Identity is a complicated subject and Leong takes care to define and defend her categories. Leong uses the term “negative identity” to refer to those identities marked by indifference or antipathy to something that much of society views as fundamental. These identities are negative in terms of opposition but not in terms of absence: the childfree, for example, do not merely lack children; they have chosen not to have children based on emotional commitments, personal and professional freedom, environmentalism, or simply a desire to allocate personal resources to other causes. By defining the term in this way, Leong means to distinguish between those who have affirmatively taken on these identities from those with only passing affiliation with these identities. That is, the term is intended to distinguish between those who consciously choose to forego sex and those who are celibate because they are between intimate relationships. Likewise, “negative identity” focuses on those who have chosen to forego parenthood from those who may desire children, but who have not yet acted upon these desires or been successful in their attempts at parenthood.
Leong builds on some stellar work, much of it recent, identifying these different identities and cataloguing the ways in which members experience legal disadvantage. So what is gained by bringing these identities together, especially since they are marked by significant differences as well as similarities? The answers to that question are particularly revealing and instructive in what they teach about discrimination and harm. Relying on “ingroup theory,” Leong explains that in a world of diverse preferences, people will often band together to form groups around shared identity characteristics. Positive identity groups will advocate for policies advancing their shared interests, which naturally tend to exclude people in negative identity categories. She also observes that negative identity tends to prompt questions—Is that person trying to have a child? Are they infertile?—that require constant self-justification and public explanation. The pressure to justify or downplay differences inevitably takes a toll, as does the experience of being marginalized from discourse presuming that the positive identity categories are of universal importance. Added to these harms is animus. For example, people would vote against, or disapprove of their child marrying, atheists more than other cultural or ethnic minorities. One recent study demonstrated that, in comparison to married people, single people were more likely to be labeled immature, insecure, self-centered, unhappy, lonely, and ugly.
These harms and their causes might seem exogenous to law, a misperception that Leong sets out to correct. Although few laws explicitly target negative identities for disfavored treatment, as Leong makes clear, many laws nonetheless exclude negative identities from their protections to varying degrees. Title VII, for example, does not protect single people from discrimination; the Family and Medical Leave Act’s narrow coverage protects spousal or parental relationships, but few other kinship categories. These forms of exclusion impose tangible burdens on negative identities: citing the work of Lily Kahng, Leong notes that single people making the same income as a couple—either married or unmarried—will usually pay more tax, and never less. And the law often remains silent in the face of private discrimination, allowing health clubs to charge people in families less for gym memberships on a per capita basis than a single person, or employers to insure family members at reduced rates. This legal landscape disadvantages negative identity groups relative to their counterparts. Moreover, laws that at first glance seem merely to benefit to a positive identity group may actually extract a cost from their negative identity counterparts. A lactation room, for example, could arguably come at the expense of the childfree, either by reallocating space that could be used by other employees or imposing a cost on the employer that may be distributed among all employees.
To resolve these competing claims, Leong distinguishes between subsidies, which would presumptively be problematic, and accommodations, which would not. A subsidy is a transfer from one group to another of a benefit that both would find equally valuable. An accommodation, on the other hand, would provide a benefit to one group that would be of substantially less value to non-group-members. Charting the course between a subsidy and accommodation can be treacherous, as scholars who have studied the ways in which accommodations extract costs from objectors have noted. Recognizing this difficulty, Leong recommends a holistic inquiry of a range of relevant factors when making the determination of what is a subsidy and what is an accommodation. A lactation room would fall on the accommodation side of the line because it would be relatively easy to implement—involving just a small space, minimal technological or engineering interventions—and because it would promote equality by addressing a historical obstacle to women’s participation in the workplace. But she largely leaves for another day how the test would play out in other, more contentious, circumstances.
In this and previous work, Leong demonstrates a refreshing sensitivity to the ways in which any given identity can simultaneously benefit and harm, or constrain and liberate, the people within those categories. People in positive identity categories may suffer from forms of discrimination that those in negative identity categories can evade. And the same characteristic that is rewarded in some contexts—say, being childfree in a law firm—might be penalized in others. In this moment when a great deal of attention is being paid to the post- or non-marital family, Leong helpfully reminds us to think of groups that the law has traditionally ignored, and to consider the effect that benevolent efforts to accommodate positive identity groups might have on their interests.
Mar 9, 2016 Douglas NeJaime
As marriage equality became a nationwide reality, those who opposed same-sex marriage increasingly turned their attention to issues of reproduction and parenting. In 2012, David Blankenhorn, a longtime opponent of same-sex marriage, famously announced his newfound support for marriage equality in the pages of the New York Times. Yet Blankenhorn continued to oppose important aspects of family formation by same-sex couples, arguing that “children born through artificial reproductive technology” should have “the right to know and be known by their biological parents.” Same-sex couples commonly raise children conceived with anonymous sperm or egg donors, and same-sex-couple-headed families are much more likely than their different-sex counterparts to include nonbiological parent-child relationships. As Blankenhorn’s views suggest, opposition to LGBT equality can seamlessly continue in new forms. Indeed, researchers at Blankenhorn’s Institute for American Values are urging “an active public debate over whether it is ethical for the state to support the deliberate conception of children who will never have the chance to be raised by their biological parents.” Elizabeth Marquardt, the director of the Institute’s Center for Marriage and Families, advocates a number of restrictions on family formation through assisted reproductive technologies (ART). Restrictions on the use of ART to form nonbiological parent-child relationships will have a distinct impact on reproduction and parenting by same-sex couples. In marriage equality’s wake, alternative reproduction has clearly emerged as an important new front in the culture wars.
In her engaging and insightful new article, The Oedipus Hex: Regulating Family After Marriage Equality, Courtney Cahill focuses on a specific argument put forward by those seeking to restrict alternative reproduction—what she terms the incest prevention justification. As Cahill explains, scholars and advocates argue for greater regulation of alternative reproduction to minimize the likelihood for accidental incest among donor-conceived children.
Of course, conservative opponents of alternative reproduction make a number of other arguments, many of which explicitly endorse gender-differentiated parental roles. For instance, Marquardt argues that alternative reproduction, to the extent it facilitates same-sex family formation and single parenting, regrettably produces “motherless” and “fatherless” families. A narrow band of the political spectrum now supports such arguments. But the incest prevention justification finds support across the ideological spectrum. Prominent family law scholar Naomi Cahn, for example, invokes the fear of accidental incest as a basis for supporting laws prohibiting donor anonymity or limiting the number of gamete donations from a single donor. Unlike Blankenhorn and Marquardt, Cahn supports LGBT equality and nontraditional families. The incest prevention justification, then, has the unique capacity to unite ideological opponents in matters over the family.
This feature of the argument from incest is precisely why Cahill’s analysis is so important. She uncovers how a seemingly non-ideological claim can conceal positions that threaten to undermine a diverse array of family forms. As Cahill explains, the justification’s “normative objective is largely unseen, appearing on its face to be a biologically-driven response . . . to the considerable expansion of alternative reproduction in the United States.” Through a wide-ranging and theoretically sophisticated analysis, Cahill then reveals the justification’s productive force. Like the incest taboo more generally, the incest prevention argument against ART can be used to “establish a normative conception of the family, one that necessarily includes two biological parents of different sexes and that is bound by ‘the genetic tie.’” In other words, the incest prevention justification can curtail efforts to depart from the biological, gender-differentiated, heterosexual family—while seemingly remaining silent about the very norms it enforces.
Ultimately, Cahill rejects the incent prevention justification on both normative and constitutional grounds. By “establish[ing] the traditional family—married parents and their biological children, sexually conceived—as the ideal family,” the justification marks as inferior—and suspect—family formation through alternative reproduction. Such family formation is vital to the reproductive projects of same-sex couples and single parents—not to mention a growing number of different-sex couples. Furthermore, by “establish[ing] the donor network as a family”—that is, by understanding donor-conceived children as existing in familial networks such that incest becomes a concern—the justification prioritizes biological and genetic connections over chosen families and social parenting. The drive toward the traditional family and the emphasis on biology together marginalize the reproductive and familial choices of same-sex couples and single parents and undermine social kinship.
Cahill bolsters her normative claim with a compelling constitutional argument, showing how the incest prevention justification runs against the reasoning that animates Obergefell v. Hodges, the Court’s recent marriage equality decision, and the long line of constitutional family-related cases that preceded it. While she extracts principles of “familial autonomy and familial self-determinism” from Supreme Court cases in the second half of the twentieth century, Cahill nonetheless recognizes their limitations; even when they departed from the traditional family, those cases tended to protect biological relationships. Against this backdrop, Obergefell and other marriage equality decisions intervened. As Cahill shows, marriage equality jurisprudence does not merely further the familial autonomy precedents; rather, it expands their reasoning to reach relationships that depart from the heterosexual, gender-differentiated adult couple and the presumption that they are the joint biological parents of the children they are raising. In other words, marriage equality resists the very model of family embedded in the incest prevention justification.
The Oedipus Hex marks an important contribution to an ongoing debate over legal regulation of alternative reproduction. More broadly, though, Cahill’s article intervenes in a vital post-marriage equality debate just beginning to take shape. For many years, conflict over same-sex marriage centered around two primary questions. In the broader public debate, supporters and opponents disputed whether same-sex couples should have access to marriage. Within LGBT circles, scholars and activists considered whether marriage should be an LGBT priority. But now that marriage equality is a nationwide reality, a new set of difficult questions is emerging: How does marriage equality affect the broader family law regime? How does the reasoning on which marriage equality is premised influence constitutional rights in the family? How, if at all, does marriage equality support transformations in the regulation of reproduction and the family? As Cahill carefully probes the relationship between marriage equality—as a conceptual and constitutional matter—and alternative reproduction, she suggests just how much is at stake. The meaning of marriage equality is neither clear nor settled; scholars, advocates, and lawmakers will debate its significance for many years to come. And Cahill’s voice is critical to that debate.
Feb 10, 2016 Katharine Bartlett
A concern about the marriage equality movement is that it has reinforced the supremacy of marriage and detracted from the LGBT community’s broader agenda of family pluralism. In her stunning new work, Serena Mayeri describes a similar dynamic in the history of another civil rights movement—the movement to eliminate illegitimacy classifications. There, too, important civil rights were secured at the cost of achieving broader, more comprehensive legal reform on behalf of non-conforming families. The parallelism of these two movements is not random or fortuitous. Indeed, Mayeri’s work shows that the movements contributed to the same legacy of marital supremacy and that the loser in these two movements was the same: women, especially poor women and women of color, whose circumstances and desires put them outside the mainstream of traditional marriage.
Case by case, Mayeri takes us through the major litigation of the 1960s and 1970s that challenged illegitimacy classifications in Social Security benefits, inheritance rights, wrongful death claims, public assistance benefits, mandatory paternity disclosure rules, citizenship law, child support law, and employment bans against unmarried women. She shows that the illegitimacy challenges that succeeded (and many did not) did so because courts concluded that it was unfair to visit the sins of unmarried mothers upon their children. It was not that children were to be treated fairly along with their mothers; rather, they were to be rescued from the circumstances their mothers had created.
The difference matters. “[F]ocusing on the harm to (presumptively innocent) children while downgrading or penalizing their parents’ nonmarital (and presumptively not so innocent) relationships,” Mayeri writes, had “destructive symbolic and material consequences for nonmarital families.” (P. 1352.) These consequences included the strengthening the ideology of the marital family, the continued stigmatization of nonmarital sex, and the heightened marginalization of unmarried women, especially poor women. Bottom line: the important civil rights battle to end the status of illegitimacy for children was largely won, but the “larger battle over the relationship between family structure and racial, sexual, and economic justice.” (P. 1351) was lost. Sound familiar?
The failure to secure a larger victory for family non-conformism, Mayeri shows us, was not for lack of trying. In the context of these cases, advocates challenged the infringements to women’s sexual privacy, the explicit distinctions many of these rules made between men and women, and the race and class implications of illegitimacy rules. Mayeri’s meticulous research reveals a relentless (albeit restrained and largely uncoordinated) effort by advocates to defend the character of unmarried mothers, free women from the financial and employment penalties imposed by the state for their sexual choices, and remove them from the heavy shadow of race and class stereotypes.
Alas, courts weren’t interested in the ways in which the challenged rules injured adults. Case by case, courts dodged sex discrimination claims, turned aside sexual privacy arguments, and ignored the race implications of these rules. The shunning of these arguments was so complete, Mayeri argues, that judicial opinions contain virtually no trace of them.
This article exemplifies the huge contribution history can make to family law scholarship. Like the scholarship of Reva Siegel, Ariela Dubler, Cary Franklin, Deborah Dinner and others, Mayeri’s work helps us to better understand the importance of the roads taken and not taken. If our exuberance over the success of the marriage equality movement was insufficiently attentive to the consequences of that success for racial, gender, and economic inequality and for sexual and reproductive freedom, Mayeri shows us that we’ve been down this road before.
Maybe it’s time to try another.
Cite as: Katharine Bartlett,
The Low Road, JOTWELL
(February 10, 2016) (reviewing Serena Mayeri,
Marital Supremacy and the Constitution of the Nonmarital Family, 103
Calif. L. Rev. 1277 (2015)),
https://family.jotwell.com/the-low-road/.
Jan 14, 2016 Kerry Abrams
Elizabeth F. Emens,
Admin, 103
Geo. L.J. 1409 (2015).
Who prepares your taxes? Pays your bills? Handles disputes with insurance companies? Orders toner for your home printer? Creates shopping lists? Schedules playdates?
If you do any of these tasks, you are doing what Elizabeth Emens would call “admin.” Not to be confused with “chores,” such as taking out the garbage or doing the dishes, admin involves tasks that we generally associate with office work. Unlike activities that would be considered hobbies, admin isn’t usually done for its own sake, but to get something else done. As Emens succinctly puts it, “admin seems to many people like wasting time, even killing it.” If you’ve ever complained about “wasting time” on the phone or sitting around waiting for a repairperson to arrive, you were complaining about time spent doing admin.
Why analyze a subject as seemingly trivial as admin? Two reasons emerge from Emens’ article. First, a particularly insidious feature of admin is its invisibility. Because it involves a set of undervalued, often-irritating tasks, it’s not something people are generally proud of doing. Making admin salient is important, because doing so reveals just how much time it is stealing from other pursuits—work, sleep, leisure, and education—that most people would agree are more fulfilling or valuable. Currently, there are few legal imperatives to reduce the admin burden on consumers. To the contrary, admin burdens continue to expand despite easy technological fixes. If the reality of admin goes unrecognized, it is difficult to reverse course.
The second reason Emens advances for focusing on admin is its unequal distribution within relationships. The feminist movement has made considerable headway in exposing the “second shift” that women often shoulder in addition to their paid work, which often includes childcare, cooking, cleaning, and other housework. Men increasingly report engaging in these activities, especially childcare. But admin represents yet another category of work that must be done to maintain a home, and the burden of this work is often overlooked. A couple can divide childcare and housework “equally,” and yet the real-time burdens of home management might still be skewed strongly toward one partner or the other, depending on how the admin is divided. Much of the work of admin is work that requires planning rather than reacting: making a shopping list and planning meals, for example, requires a different kind of mental energy than preparing a meal from ingredients already on hand. And much admin is not delegable—it requires knowledge of passwords, access to bank accounts and financial data, or the authority that comes with legal parentage or guardianship—so, unlike childcare or housework, it often must be done by an adult member of the family. There is no place or time set forth in the day to do “admin,” and it never really goes away, for it goes hand in hand with planning the events of one’s life, and, often, of one’s family members.
One of the most important features of admin that Emens identifies is its “stickiness.” Critics of gendered parenting roles have noted that when parental leave is given only to women, the result in families headed by opposite-sex couples is often that women “specialize” in infant care, to the detriment of men’s involvement. By the time the child is a few months old, its mother has become an expert on its care and feeding, and her skills appear to be “naturally” superior to those of the father. The same phenomenon can occur with admin. Because the knowledge required to perform admin effectively is lodged in the mind of the person who performs it, passing this knowledge on to another involves transaction costs. The other person will have to be taught to do it (and might choose to do it differently). The results can be messy and inconvenient—twice-paid bills, conflicting playdates, duplicate cartons of milk in the fridge or no milk at all. The work of creating systems for sharing admin is in itself an “admin” task, and it may seem more efficient—and less detrimental to the relationship—to ignore the inequity of admin rather than create the upheaval required for change.
The article makes an important contribution by exposing admin as a major category of work. But Emens does more than define admin and show how it pervades our lives. She also shows why businesses sometimes have a financial incentive to increase admin and how the law is complicit in admin’s proliferation. She notes, for example, that bills have been introduced in Congress that would have allowed taxpayers to file pre-filled returns for free. The maker of the tax-preparation service TurboTax has spent over $11.5 million lobbying against these bills. The proliferation of admin is a big business.
Admin burdens also flow from state and local governments, which require people to fill out forms for every conceivable type of transaction, often with little or no thought to the burden these forms place on individuals. Emens lauds governmental efforts to create incentives to decrease admin burdens on individuals, offering as an example the Affordable Care Act’s Meaningful Use Program. The program provides monetary bonuses to medical entities? that transfer their files to an Electronic Health Record System, thus preventing the need for patients to fill out new forms every time they see a new healthcare provider.
Admin shows us the many ways in which the law’s refusal to “see” admin leads to unfortunate results, and it offers suggestions for how the law might better recognize the effects of admin on people’s lives. For example, under our current system, consumers are expected to read lengthy contracts for small-scale consumer transactions, even though almost no one actually does. Emens suggests that, instead, lawmakers should protect consumer time by holding consumers responsible only for those terms that do not take longer than a few moments to read.
Emens’s article has changed the way I think about filling out forms, scheduling appointments, and planning for life. These are not tasks that easily fit the categories of market work, housework, or childcare. They are not activities that occur at a particular time, or even in a very predictable way. But they are activities that must be done, and, despite the promise that a “paperless” society would minimize these types of transactions, the digital age seems to have only multiplied them. Admin is everywhere, and Admin both helps us see it and provides some creative ideas about what to do about it.
