Family law scholarship features a significant amount of normative work arguing for greater recognition of diverse family forms. Careful descriptive work analyzing how such families gain recognition is far less common. Elizabeth Scott and Robert Scott’s insightful new article, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, forthcoming in the Columbia Law Review, critically mines this second vein. Scott and Scott shift the focus away from the question of why we should provide greater recognition to more family forms and toward the question of how the state comes to accept and recognize novel family arrangements.
Beginning from the premise that families with “the qualities of commitment, durability, and emotional and financial interdependence deserve legal recognition and support,” Scott and Scott elaborate an informal model by which new family forms demonstrate these qualities and gain state recognition.
First, as individuals engage in novel family formation, they face uncertainty over whether their family will in fact be characterized by emotional and economic interdependence. In this stage, family members themselves negotiate and define their roles and responsibilities. Next, because these novel families face social isolation, they must find other similar families to organize into what Scott and Scott describe as a “normative community.” With shared values and goals, families mobilize around a coherent identity. The public, in turn, begins to accept these families and to recognize their productive functions. Finally, these families face regulatory uncertainty as the state seeks to verify that the families function in ways that merit government recognition. In what Scott and Scott describe as an iterative process, the state extends rights and benefits to families in an incremental fashion that allows the government to verify the family’s bona fides. Because “qualities that characterize successful family groups . . . are not readily observable” and “are difficult to evaluate in the absence of express promises or reliable proxies,” it is critical that advocates—often lawyers—persuade the public and state decision makers that these families meet society’s expectations and serve the state’s regulatory objectives.
Scott and Scott test the explanatory power of their model against the divergent paths of same-sex and different-sex unmarried, cohabiting couples. Mapping these couples onto the model brings into view crucial differences that help to explain why LGBT advocacy successfully marched toward rights and recognition—and ultimately marriage—while different-sex cohabitants have been largely left behind.
The LGBT experience highlights the significance of the iterative process that Scott and Scott identify. Viewing the recognition of same-sex couples through Scott and Scott’s model suggests why and how domestic partnership led to marriage, rather than remained a stand-alone alternative to marriage. Same-sex couples’ success depended in part on their ability to map domestic partnership onto marital norms. Advocates convinced decision makers that domestic partners were like married couples and would exhibit the same levels of commitment. Slowly, government actors elaborated domestic partnership at the local and state levels. Ultimately, the recognition regime grew to replicate the rights and benefits of marriage, making the marital distinction appear arbitrary and discriminatory. Through Scott and Scott’s lens, domestic partnership’s role as a stepping stone to same-sex marriage has more to do with the success of same-sex couples’ campaign for family recognition than with the failure of a progressive coalition to marginalize marriage.
The model also helps explain the lack of (large scale) recognition of what Scott and Scott term “informally cohabiting couples.” As they demonstrate, the state is pushed to accommodate novel families when those families effectively mobilize, forming a coherent identity and persuading outsiders that their demands are legitimate. In this regard, the story of unmarried different-sex cohabitants stands in stark contrast to that of same-sex couples. Many different-sex cohabitants have little reason to mobilize for recognition; they either do not seek such recognition or can attain it through marriage. Accordingly, Scott and Scott conclude that the response to the exclusion of cohabitants from legal protections “has been relatively passive.”
The experience of different-sex couples with domestic partnership regimes underscores the consequences of this passivity. Some domestic partnership regimes that emerged in the 1980s and 1990s included both same-sex and different-sex cohabitants. While conventional wisdom holds that different-sex and same-sex couples were united by their shared nonmarital status, a careful review of the history suggests important points of differentiation. Some advocates for same-sex couples often distinguished their constituents from unmarried different-sex couples. In domestic partnership advocacy in California, for example, advocates at times framed same-sex couples as like married different-sex couples—willing to accept financial and emotional obligations—and unlike unmarried different-sex couples—who were seen to resist marriage’s responsibilities.
Moreover, while same-sex couples used domestic partnership to signal their marriage-like commitment, different-sex couples largely ignored this signaling feature. For example, when in 1996 San Francisco City Hall hosted a mass domestic partnership ceremony officiated by the mayor, only one different-sex couple participated, even though the law covered both same-sex and different-sex couples. “We’ve thought about [getting married],” the couple commented, “but one of us always chickens out.”1 For this different-sex couple, domestic partnership signaled not an acceptance of marriage’s obligations, but rather the affirmative avoidance of those obligations. This, Scott and Scott explain, is unlikely to form the normative basis on which to build a successful family recognition effort.
Through this lens, the more recent retraction of domestic partnership recognition—as same-sex marriage gains hold—appears to be less a story of conservative retrenchment and more the byproduct of same-sex couples’ successful drive for recognition. As alternative statuses incrementally came to replicate marriage, they appeared increasingly unnecessary if same-sex couples had access to marriage. Different-sex couples, who are eligible to marry and who register for comprehensive nonmarital relationship recognition in relatively low numbers, have had little incentive to preserve these nonmarital forms of recognition.
Scott and Scott also posit that the process of gaining recognition itself may shape shared understandings of family and marriage. Again, the movement on behalf of same-sex couples has much to offer. To the extent LGBT advocates emphasized same-sex couples’ similarity to married couples to gain rights and recognition, they focused on particular attributes (mutual emotional support and financial interdependence) and sidelined others (gender differentiation and biological reproduction). Through this process, not only did same-sex couples obtain rights, but they also contributed to contemporary understandings of marriage that may in turn influence the ability of other families to gain recognition. In other words, “the template that marriage provides” subtly changes over time, partly in response to claims made on it by novel families seeking to convince the public and the state that they deserve recognition.
With this in mind, Scott and Scott explain how families’ proximity to marriage helps account for their success in gaining public acceptance and state recognition. As they acknowledge, “families based on marriage likely will continue to enjoy broad public support and a privileged legal status, and to be viewed as embodying qualities associated with satisfactory family functioning.” Therefore, Scott and Scott “explore under what conditions and through what mechanisms other family categories that embody those qualities could attain a similar status.” In this way, their account is, subtly, also an account of marital supremacy. Even efforts once thought to unsettle marriage, such as the campaign on behalf of same-sex couples, operated in the shadow of marriage and ultimately aspired to marriage.
Yet marriage is not the goal across all of the contexts that Scott and Scott explore. They conclude their fascinating article by considering families that map less neatly onto the marital model: multigenerational families and voluntary kin groups. While we may understand the successes and failures of recognition efforts on behalf of same-sex couples, different-sex cohabitants, and polygamous families in light of such families’ relationship to marriage, how might we adapt Scott and Scott’s model to families that are not based on conjugality and to families that may seek rights and recognition that fall well short of marital status? Future work might profitably explore how the state comes to accord—or not accord—rights and recognition to these families.
In the end, Scott and Scott’s article offers a critical and refreshing intervention. While not framed as a corrective, the piece pushes against the common impulse to view the lack of more pluralistic family recognition as a failure in advocacy. Scott and Scott instead show us that the family law regime emerges from complex processes of social and legal change in which families, advocates, the public, and the state all play critical roles. The answers they supply to why and how we come to recognize new family forms should bear on family law scholars’ assessments of changes in family regulation and should influence prescriptive claims animated by those assessments.
- Richard C. Paddock, 165 Gay Couples Exchange Vows in S.F. Ceremony, L.A. Times, Mar. 26, 1996, at A1. [↩]