Elderlaw As Family Law

Jul 29, 2013 Janet Halley

Janet Halley

How do American law and culture accommodate the fact that old age is almost everyone’s fate, and that—though we know for sure that it ends at last in death—its course and the kinds of dependency it brings are so profoundly unpredictable and often categorically intense?  In this brilliant, grimly humane page-turner of a book, Hendrik Hartog lays out three different historical periods marked by very different answers to this question.

Before the rise of a market economy in the middle of the nineteenth century, old people were cared for and died in their households, surrounded and aided by relatives and, if they had them, servants or slaves.  But as the master/servant relation was replaced by employment in the rapidly industrializing private sphere, and as the household nuclearized into the husband/wife, parent/child family, this ready-to-hand supply of helpers dwindled, often disappearing entirely.  In response to these changes, old people who had property started promising to bequeath it to children, other family members, and even housekeepers in exchange for their staying at home and devoting themselves to filling what we would now call the care gap.

Using New Jersey court records, Hartog’s archival research traces this large social transformation through a small legal shift: people started suing for specific enforcement of these promises, framing them as contracts no different from those typical of the marketplace, and courts started enjoining these inheritances or, in cases with weaker facts, granting unpaid wages payable from the decedent’s estate.  Finally, in post-World-War-II America, these lawsuits disappear from the archive as care for the old and the dying became a commodity paid for by social security programs, pensions, and private savings in the now-burgeoning care industrial complex.

By far the bulk of Someday focuses on the century-long middle chapter of this story, running roughly from 1850 to 1950.  The book’s first part takes the point of view of the old person, desperate to avoid solitude and the poor house and advised on all sides to retain control over property as the only way to gain any leverage over the young.  The family dramas that occupy these chapters are so vividly told, in such loving detail, that the chapters seem to be punctuated with perfect little short stories of human misery.  The second part of the book tells the story of the law, starting with the advice a potential plaintiff would get under the main theories of recovery, and then laying out in transfixing detail how the caselaw evolved to manage, catch up with, and even drive social change.

By the time Hartog reaches this stage of his story, he has built up so much narrative detail, so much social history, and so much law that he is able to trace minute but enduringly important sub-plots: the ways in which gender expectations for sons and daughters could skew decisions about who was doing “extraordinary” work in the home; the ways in which family members sought to intensify status relations that had no legal backing using the tools of contract and property law; the ways in which nonfamily members entered into the care world ever so slowly, bringing contract even deeper into the home.  It is so fascinating to watch the old turn from spouses to children to nieces to stepsons to housekeepers for care, and to see how the legal rules that these relationships cue up shifted from those of traditional family law to those of the market. When is a housekeeper like a daughter?  When is a daughter like a housekeeper?  Throughout, large legal and social transformations appear in the form of highly specific institutional shifts.  For instance, the unpaid-wage cases boosted the rise of nursing as a profession and of the legal distinction between housework and care work that even today marks efforts to regularize domestic labor.  Equally intelligible as employment law and as family law, these cases persistently belie the idea, being cemented into American legal ideology during this very period,¹ that the family and its law were the opposite of the market and the bodies of law peculiar to it, contract and property.

Hartog never loses sight of a large, highly paradoxical dynamic, in which the family, the market and the state have continually morphed around each other in response to changing social strategies for meeting human needs for care and freedom.  Every chapter refutes the dichotomy embedded in Henry Sumner Maine’s motto “the movement of the progressive societies has … been from Status to Contract.”²  Instead, as Hartog demonstrates again and again, liberal individualism and the market economy depend continually on some allocation of dependency needs among the market itself, the family and the state. 

A second major theme of the book is the problem of legal informality.  Old people promised to bequeath their farms and later their homes in exchange for care—but everyone seems to have known perfectly well that testamentary freedom meant that the elderly could die without performing their side of the bargain.  How many caregivers simply acquiesced when they did?  We will never know.  But courts confronted with the ones who sued could invoke the doctrine of partial performance to convert the promise into a binding contract, override the Statute of Frauds, and force the inheritance.  Hartog shows courts making diametrically opposite decisions on the basis of the same matrix of rules and similar facts, presenting a deeply ambivalent attitude about what to do when the need for formality collided with the need for substantive justice, when the moral complexity of the cases beggared the impulse for predictability.

To take another example that vexes family law today: what to do about informal family relationships that resemble formal ones in every other respect?  This theme is threaded throughout Someday, but we can focus on Hartog’s fascinating substory about informal children.  As indentured servitude, slavery and child labor became unthinkable, up came the practice of informal adoption—families bringing distant relatives or even complete strangers into their homes when they were infants or children and hoping that they would remain to care for the old and dying.  When they did, and were excluded from wills, and sued—what were they?  Were they children?  Did the onset of legal adoption make saying yes to that question harder or easier?  Were they lucky beneficiaries with no equitable claim on further largess?  Were they employees?  Anyone concerned about the policy problems we face in family law today, as nonmarital cohabitation and childbearing begin to compete demographically with their marital counterparts, will find this and many related strands of Hartog’s narrative endlessly fascinating.

Finally, the Epilogue produces a succinct account of the massive transformations that produced old age as Americans live it now: public law, public welfare, and individual savings meant and often required to be spent down to nothing, have almost evanesced the direct responsibility of family members, making them at most the managers of their elders’ care in commercial establishments.  And yet, for all the grandeur of these shifts, Hartog concludes with a “reversal” of the account, tallying all the ways in which, even in this diametrically new world, the same anxieties, fears, loves, resentments and regrets permeate the lives of the dying old and their family members today as he found in testimony before New Jersey’s equity courts in the 1880s.

Hartog tells us on his first page that he researched this book while his own mother was waning in a retirement community; the book’s last words dedicate it to his grandchildren.  He put himself into the story, and so I found it impossible to read this book without thinking of my own precarious place on the great conveyor belt of life.  This is family law writing at its best: legally subtle, socially precise, theoretically comprehensive, steadily engaging the human capacity to form productive, life-affirming, loving associations and to crash them in bitter conflicts, and fully exposed to the hard, brute facts of human existence.

1. For my own account of this process, see Janet Halley, “What is Family Law?: A Genealogy, Part I”, 23 Yale Journal of Law & the Humanities 1 (2011).
2. Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas 170 (1861).

(Same) Sex and the City

Jun 26, 2013 Melissa Murray1 comment

Melissa Murray

Places of transformation and constant activity, cities have always loomed large in the cultural imagination.  Clark Kent left the cornfields of Smallville for Metropolis, and in the process, discovered his true identity as Superman.  Carrie Bradshaw fled to New York City, where she discovered Manolo Blahniks and (after some false starts) true love.  The tale of escape from rural life to urban opportunity is not merely one that plays out in fantasies.  Instead, such migration accounts for large-scale demographic shifts in American society.  In the first half of the twentieth century, African Americans fled the racism and parochialism of small Southern towns for the (relative) freedom and opportunity of Northern and Western cities.

More recently, cities have figured prominently as sites of LGBT identification and acceptance.  Consider the popular “It Gets Better” campaign, which aims to combat the feelings of isolation and despair that LGBT youth often face.  Premised on the idea that coming out and assimilating into a welcoming LGBT community are integral for a happy adulthood, It Gets Better often assumes that LGBT persons seeking a “life worth living” will do so in the cosmopolitan confines of an urban metropolis.  Indeed, in one ad, Michael Bloomberg, the mayor of New York City, rolls out the welcome mat for LGBT youth.  “New York,” he advises, “has always been the place where anyone can go and be who they are supposed to be, regardless of ethnicity, religion, gender, or sexual identity.”

It is not surprising that cities play such a prominent role in the It Gets Better campaign.  From San Francisco and West Hollywood to Atlanta and New York City’s Chelsea neighborhood, gay life and culture seems synonymous with urban living.  And the presence of mainstream LGBT rights groups in these urban centers also makes clear the importance of the urban in the legal construction of gay life and culture.  But if gay rights and quotidian life as an LGBT person depends on city living, what about LGBT people who do not live in cities?  How do we reconcile this vision of gay identity with those LGBT persons who lack the financial wherewithal or the desire for metropolitan living?  How do these people fit into the dominant social and legal tropes of gay life?

These are the questions that Luke Boso poses in his excellent article Urban Bias, Rural Sexual Minorities, and the Courts.  As Boso argues, the conventional narrative that privileges gay urbanity is problematic on a number of fronts:  First, it is unduly exclusive, directing attention to those privileged persons with the ability (financial and otherwise) to leave their communities of origin to make their way to a city.  It also presumes that cities are welcoming spaces for gay arrivistes.  It does not account for those who may feel ill-at-ease—or are made to feel ill-at-ease—because of their less urbane manners or their seemingly provincial attachments to religion and family as key sources of emotional support.

Second, though the conventional narrative is essentially one of liberation, it discounts the degree to which city life may not “necessarily liberate poor people or people of color who find race and class hierarchies within gay communities.”  To that end, the insistence on the gay urban narrative elides further discussion of these hierarchies and helps to cultivate an image of gay life and culture that is largely white and affluent.  This portrait, in turn, fuels critiques of the gay community as socially connected, politically powerful, and affluent—the sorts of images that stymie efforts to denominate LGBT status a suspect class entitled to heightened scrutiny in constitutional analysis.

Third, according to Boso, urban bias is not simply the byproduct of mainstream gay culture.  Judges and other decision-makers further entrench urban biases by “internalizing stereotypes about gay people and gay identity and by explicitly approving the belief that sexual minorities do not belong in small towns.”  With this in mind, Boso recounts a number of cases in which judges access the gay urban narrative in ways that penalize rural LGBT people who try to live openly within the confines of their rural settings.  On this account, the gay urban narrative impedes non-urban LGBT folk who must depend on their local courts, rather than grassroots activism and high-level impact litigation, to protect and advance their rights.

There is much to admire about this article.  In drawing attention to the experiences of rural sexual minorities, Boso takes an intersectional approach, considering the ways in which race, class, education, religiosity, and place all play a role in shaping the LGBT experience.  In so doing, he joins scholars like Russell Robinson, who have critiqued the mainstream LGBT rights movement as inattentive to the needs of those LGBT people who fall outside of its white, urban, privileged paradigm of LGBT identity.

But what I most enjoy about this Article is Boso’s subtle critique of the neoliberalist impulse that undergirds the gay urban narrative.  As Boso recounts, coming out and moving to a city where one can become thoroughly assimilated in mainstream gay culture has become an expectation of gay life.  On this account, one cannot passively wait for a happy ending.  In order for it to get better, the onus is on the individual to uproot herself, flee to a city, and immerse herself in the LGBT community.  If she fails to do so—or if she cannot do so—she deserves whatever lackluster existence can be wrung from her provincial setting.

In insisting that the individual gay man or lesbian is exclusively responsible for his or her future happiness, the gay urban narrative echoes neoliberalism’s prioritization of private responsibility over public provision.  But the trouble with neoliberalism is that its emphasis on private responsibility absolves the state of any obligation to provide assistance to individual citizens.  And this is Boso’s point.  The gay urban narrative makes it incumbent on the individual to take responsibility for transforming her life by relocating to a city.  The state is utterly absolved of any duty to provide LGBT people with the tools—anti-discrimination legislation, employment protections, heightened scrutiny for constitutional claims—to live happy and successful lives wherever they are located.  Thus while the gay urban narrative is one that sounds in the register of liberation, it may actually limit efforts to advance LGBT rights on other fronts.

Boso’s challenge to think about gay life beyond the city is incredibly timely.  Gay urban narratives frame the claims in the two same-sex marriage challenges currently pending before the Supreme Court.  Edith Schlain Windsor, the petitioner in United States v. Windsor, recounts coming out in New York City in the 1960s, meeting the woman who would become her wife at a dance in Greenwich Village, and living a happy life together until her wife’s untimely death.  Likewise, Kris Perry and Sandy Stier, the petitioners in Hollingsworth v. Perry, were both raised in non-urban settings—Bakersfield, California and an Iowa farm town—before moving to the Bay Area, where they came out, met, fell in love, and raised a family together.

Boso’s article complicates Windsor and Perry and prompts important questions.  Do these cases —and their trajectory to the high court—depend on an urban setting and the access and privilege available to LGBT persons who reside in metropolitan areas?  Do claims for same-sex marriage serve the needs of LGBT people who do not live in cities?  Does marriage, like the gay urban narrative, simple affirm the idea that gay people are responsible for their own well-being, letting the state off the hook for more meaningful public interventions that would improve gay (and straight) life, whether urban or rural?  The answers to these questions are not obvious, but Boso’s important article provides a useful starting point for a much-needed conversation.

Colonial and Postcolonial Constructions of Family Law

May 24, 2013 Philomila Tsoukala

Philomila Tsoukala

Western legal regimes tend to characterize family law as a field regulating private relations between adults, as well as between adults and their children and as “the opposite” of both public law and the law of market exchange. During the latter part of the twentieth century, feminists analyzed how the legal treatment of family relations as private amounted to a public endorsement of private coercion.³ More recently, comparative law scholars have begun to study and understand the emergence of family law as a distinct field in western legal thought.⁴ Over and over again, the emergence of family law, a surprisingly recent phenomenon, is associated with constitutive moments in the making of modern states: from federalism in the U.S. to the construction of nation-states in Europe. Sylvia Wairimu Kang’ara’s Beyond Bed and Bread: Making the African State Through Marriage Law Reform is an important new contribution to this literature, demonstrating the central role that reforming marriages played in the construction of colonial and post-colonial states in the parts of sub-Saharan Africa colonized by Britain.

The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model.  Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition.  Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building.

In this way, Kang’ara shows that, far from being an act with merely moral significance, “defining marriage was an important act of conquest and a corner stone of the market oriented state” that emerged via colonialism. To begin with, under the customary legal system, marriage and communal land tenure were inextricably linked. English common law disrupted this link by disentangling customary marriage law from property law.  Under the common law view, customary marriage was morally repugnant and therefore invalid.  Judges proclaimed communal ownership of property and other resources presumptively valid, but inefficient, and therefore inferior to the common law’s regime of individual property rights. This mass invalidation of customary marriages and communal land tenure had, of course, enormous distributional consequences. In the formal economy, it allowed employers and bureaucrats to ignore rights that the newly introduced commercial law was supposed to award the colonized, such as workers’ compensation claims for wronged workers’ spouses. In the informal economy, it allowed the emergence of newly-entitled heads of households, opportunistically invoking formal property rights to exclude traditional communal rights to resources.

But as Kang’ara shows, this sweeping invalidation of African law became unsustainable when colonial administrators realized that vast swaths of conquered territory would be ungovernable without it. This realization led to a “legal dualism,” with English colonial courts supposedly applying customary law. In marriage law, courts started accepting the possibility of “converting” customary unions into formal, Western-style marriages. The possibility of conversion had significant, unintended distributional consequences. Previously polygamous men now had to choose one formal wife, leaving pauperized polygamous wives in their wake. Jurisdictional conflicts between African courts and colonial courts ensued. Struggles between kin members asserting succession rights on the basis of customary law and newly-minted Christians asserting individual rights over property acquired during marriage intensified.

Kang’ara then tells the story of a dramatic shift in attitude towards customary law, which came about with the advent of socio-legal jurisprudence in the first half of the twentieth century. Rejecting the idea of the inferiority of customary law, Professors Eugene Cotran (1938- ) and Antony Allott (1925-2002) of the School of African and Oriental Studies in London provided what Kang’ara calls the “doctrinal staging” for modern family law in post-colonial, national states. Cotran accomplished the first step, identifying characteristics common to all African customary marriages despite huge fragmentation in marriage practices. Allott further noted that African marriages performed functions such as capital production and investment commonly attributed to English corporate or property law, thus dignifying an institution largely stigmatized in early colonialism. These moves led to the Restatement Project of African customary law (1968), whose main characteristic, according to Kang’ara, was the excavation of individualism within African customary law.  To that end, Cotran classified customary marriage rules as core or peripheral.  A marriage that violated core rules was invalid; one that violated merely peripheral rules was valid.  Consent and capacity to consent were deemed core, while dowry, animal slaughter, and cohabitation were deemed peripheral. Polygamy could be set aside in the Restatement Project not because of its moral repugnance, but because of its supposed lack of economic significance and its value simply as a cultural totem. This classification was, of course, conspicuously close to western ideas about marital validity and the non-economic nature of family relations, but it provided post-colonial courts with an opportunity to expunge customary law “without committing treason against African national pride.”

In all, Kang’ara has drawn a compelling picture of the complex set of legal interactions that led to the building of modern African family law. Far from a coherent customary law that was initially shut out of courts only to become accepted eventually, Kang’ara provides several illustrations of the idiosyncratic legal hybrids that emerged from the interactions of English common law and customary marriages. Moreover, she argues that these hybrids emerged to deal with problems common in liberal legal regimes everywhere, namely, the tensions between individualism and community against the background of a market-driven economy. In the colonial context, individualism was read onto “western” law and community onto African customs, at the same time as common law in the U.S. was reading community onto the family and individualism onto the market. For instance, the initial conversion of customary marriages into Western-type marriages left a legacy of individual property owners borrowing against previously communal property. When borrowers defaulted and their family members tried to protect themselves against foreclosure, courts appealed to the idea of the customary African trust to protect dispossessed family members. Kang’ara astutely observes that these court-created customary trusts in favor of family members were similar in effect to the gradual weakening of titled-based property distribution upon divorce in the United States, through equitable remedies and the eventual adoption of equitable distribution statutes. In the African context, the number of potential losers from a legal insistence on individual rights in marital property was broad. It involved more kin members than the divorcing homemaker in the United States, but the legal mechanism devised to deal with their plight was similar in function.

Kang’ara’s work highlights the central role that disentangling the family from the economy has played in creating market-driven regimes and provides new insights about how this process unfolded in parts of sub-Saharan Africa formerly colonized by Britain. These insights are relevant for comparative family law scholars and theorists of legal pluralism, as well as for law and development scholars. The family and its regulation have been and remain central in the political economy of liberalism. To see this centrality, one needs to go beyond claims of culture and identity and focus instead, as Kang’ara urges, on the profound transformations that liberal regimes demanded of pre-modern households.

The article manifests a somewhat ambivalent relationship to the idea of African customary law as an effect of the colonial encounter rather than a pre-existing system of legal rules. Even though Kang’ara amply demonstrates the invention of “African customary law” from the initial colonial period through the post-colonies, she occasionally seems to imply a clean distinction between a pre-existing customary law and western law.  This is a complex problem deserving further attention.  The importance of the contribution, however, remains unchanged. It provides a valuable window into colonial and post-colonial constructions of family law, highlighting surprising commonalities with parallel processes elsewhere in the western world.

1. See e.g., Elizabeth M. Schneider, The Violence of Privacy 23 Conn. L. Rev. 973 (1990-1991).
2. Janet Halley and Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism—Introduction to the Special Issue on Comparative Family Law 58 Am. J. Comp. Law 753 (2010).

Comparative Pragmatism versus Comparative Formalism in the Abortion Context

Apr 22, 2013 Caroline Bettinger-Lopez

Caroline Bettinger-Lopez

In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context.  To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world.  As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.”⁵ But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence?  And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice?  Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.

Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights.  While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services.  Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.”  By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights.  Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights.  A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy.  Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.”  While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.”  More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law.

Rebouché sets out to explore “how and why courts and lawyers rely on a particular formulation of comparative law as evidence of modern and universal trends in abortion law reform,” and the consequences of this comparative methodology. She contends that legislative and jurisprudential developments that expand the legal grounds for abortion do not actually correspond with better or more extensive health care services, as evidenced by the U.S. and German examples.  Moreover, she warns against an overly “formalist understanding of comparative constitutional law that makes it difficult to see the consequences and practices, both before and after law reform.”

Instead, Rebouché offers an approach she calls “comparative pragmatism” – that is, “a comparative approach that focuses less on constitutional case law and more on public health concerns.” A focus on availability and accessibility of health care services, both state-supported and private, and on the state’s power to enforce abortion laws, might serve multiple functions: to “elicit solutions that fit with diverse community needs, deter counter-movements against liberalization, … encourage flexible strategies that align with the relative power of the state at issue, [and] contradict the prevalent misconception – particularly abroad – that Roe currently provides U.S. women with abortion on demand.”

Rebouché notes the irony of national courts, especially those in the global South, framing comparative citation to courts and scholars in the global North as exemplary of claims of universal rights. Such a focus, she claims, overlooks or marginalizes extralegal or informal conduct, with important consequences for women’s health: new legislation or court decisions may result in bureaucracy, backlash, and stress on state resources.

Because “the dominant, rights-oriented approach is a model dependent on state implementation,” Rebouché cautions, “the answer to implementation problems will be more law.”  In financially-challenged states, the result may be ample law that has no possibility of practical application.  In such situations, Rebouché offers, informal regimes such as an informal sector for abortion provision could inform legal developments.

I love the premise of Rebouche’s article, and her examination of the abortion law and practice landscape in various countries is fascinating.  While the idea of examining legal realities alongside legal principles makes great sense, I would suggest that we need not overlook or reject a rights-based approach in order to embrace comparative pragmatism.  Indeed, legal standards and progressive change often evolve side-by-side, mutually informing one another. Without an established legal principle to use as a point of departure toward implementation, practical realities can easily change with the political tides. Moreover, I would be interested to see Rebouché further explore how national courts can actually engage in reliable comparative pragmatism. Are there examples of courts that have looked to comparative practice rather than comparative law? If such examples do exist, how do such courts square that inquiry with their understanding of their function as interpreters of the law? Finally, I would be curious to see Rebouché further explore the question of whether advocates’ facilitation of this pragmatic comparative inquiry could ever risk undermining a progressive agenda, and if so, what the ethical implications would be.

Rebouché’s insistence that national courts, and the advocates who submit briefs to those courts, should focus their comparative inquiries on the practical realities of abortion law and practice abroad is a fresh and welcome antidote to overly formalist approaches to comparative law.  Her article is a fascinating and provocative read, useful for family law, constitutional law, and international law scholars alike.

1. The Honorable Margaret H. Marshall, “Wise Parents Do Not Hesitate to Learn From Their Children”: Interpreting State Constitutions in an Age of Global Jurisprudence, 79 N.Y.U. L. Rev. 1633, 1636 (2004).

Same-Sex Marriage—A Liberty for All

Mar 27, 2013 Clifford Rosky

Clifford Rosky

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States.  This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to the California Constitution known as Proposition 8.

After so many years and so many challenges, it has become increasingly difficult to find arguments and angles on this topic that are genuinely novel.  In recent years, it often feels as if the question has been exhausted—as if both sides have already said what is worth saying, and we all are just repeating ourselves, pleading and praying for Justice Kennedy’s vote.

Yet in his recent article, Professor Michael Boucai (Buffalo) manages to stake out a powerful new claim for same-sex marriage—a claim based on homosexual liberty, rather than the equality of lesbian and gay people or the fundamentality of marriage itself.  In the article’s opening sentence, Boucai explains: “This Article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relations and relationships, impermissibly burdening the sexual liberty interest protected under Lawrence v. Texas.”

As Boucai recognizes, his argument from sexual liberty “departs dramatically” from the paradigms of advocacy and scholarship on this subject.  In one case after the next, same-sex couples have claimed that laws against same-sex marriage infringe on the couple’s fundamental right to marry and discriminate on the basis of sexual orientation and sex.  Without gainsaying the validity of these claims, Boucai illustrates that it is not only couples but individuals who are injured by laws against same-sex marriage—in particular, “individuals with open choices about whether and with whom to partner.” Among this “larger class of persons,” Boucai focuses specifically on “bisexuals,” whom he reasons are especially “vulnerable” to marriage’s system of burdens and benefits.

While Boucai’s article is packed densely with valuable observations and insights, his argument seems likely to be remembered for three contributions to the legal academy’s understanding of queer theory, same-sex marriage, and constitutional law.

First, although volumes of commentary have been published on Lawrence v. Texas, Boucai adds an eloquent reminder of what the opinion actually held. In Lawrence, the Supreme Court invalidated a Texas law against same-sex sodomy under the Due Process Clause of the Fourteenth Amendment.  Although the Court’s opinion has been closely analyzed by a long list of judges, advocates, and scholars, Boucai wryly observes that much of this analysis ignores the holding itself. Lawrence did not, Boucai insists, vindicate the equality of lesbian and gay people, but the liberty of all persons to “choose” homosexual relations and relationships.

Boucai’s reading of Lawrence offers a useful corrective to those judges, advocates, and scholars who have focused too resolutely on the opinion’s oblique references to the links between the Equal Protection Clause and the Due Process Clause, and the tendency of sodomy laws to “demean” or “stigmatize” a class of persons who the Court only occasionally refers to as “homosexual.”  Although Justice O’Connor analyzed the law in these terms—as a law targeting homosexual status under the Equal Protection Clause, rather than homosexual conduct under the Due Process Clause—Boucai astutely reminds us that her opinion was not joined by a single Justice in Lawrence itself.

In Boucai’s terms, Lawrence is ultimately about more than just the freedom to choose homosexual relations, or even homosexual relationships; above all, the decision protects “the exercise of conscience that mediates between an actor and her acts.”  Drawing on the work of Jed Rubenfeld and Carl Schneider, Boucai argues that laws against same-sex marriage have a “disciplinary” or “channelling” effect.  By holding out a dizzying array of sticks and carrots, such laws prod and lure individuals into heterosexual pairings.

Next, Boucai identifies the bisexual as the paradigm of this channeling dynamic—the most obvious example of an individual who might be seduced by marriage’s distribution of privileges and penalties. Ironically, however, Boucai demonstrates that gay-rights advocates have systematically occluded bisexuality and bisexuals from constitutional challenges to same-sex marriage bans. Especially telling is his dissection of Ted Olsen’s direct examination of Sandy Stier, one of the plaintiffs in the Prop 8 litigation, on the subject of her heterosexual past.  As Boucai explains, “Olson took pains to show that his client Sandy Stier, who previously had been married to a man, really is and always was a lesbian”—even before she knew it herself.  With meticulous care, Olsen prompts Stier to testify , “I was not in love with my husband, no” to stave off the charge that her sexual orientation is “this and then it’s that and it could be this again.”

Using this erasure as a segue back into his constitutional analysis, Boucai concludes by identifying three reasons that advocates have so carefully excluded any evidence of bisexuality from the litigation of same-sex marriage claims.  As Boucai frankly admits, the existence of bisexuality would confound three claims that are commonly made in constitutional challenges to same-sex marriage bans: (1) the claim that laws against same-sex marriage target homosexual status, (2) the claim that they negate the identity of lesbian and gay people, and (3) the claim that they target an immutable trait.

For a few moments, Boucai gamely suggests that bisexuality has a place within this constitutional framework. In the end, however, he largely rejects each of these claims as regressive and fruitless—so much unwanted baggage from the same-sex marriage quest.  In Boucai’s terms, these traditional challenges to same-sex marriage bans smack of the “politics of containment,” insofar as they entertain the premise that the state may legitimately seek to deter homosexual relations and relationships:  “All three arguments implicitly concede the deterrence of homosexuality is bad because it is useless, not because it is wrong.” It is this premise, above all, that is the target of Boucai’s argument.  In his view, “Lawrence affirms [that] containing ‘the spread of homosexuality’ is no longer a viable governmental purpose.”

In this respect, Boucai’s article stands out as a rare articulation of what queer theorist Lisa Duggan famously termed a “no promo hetero” argument—a claim that both depends on and transforms the liberal discourse of disestablishment, rather than the language of fixed minorities and fundamental rights.⁶  In Boucai’s terms, the liberty protected by Lawrence is not only universal, but “universalizing.” By emphasizing “the difference between liberating homosexuals and liberating homosexuality,” Boucai affirms that antigay policy rests upon “an immeasurable and often inchoate homosexual potential in many ostensible heterosexuals.”  In conclusion, Boucai notes that his argument “need not be limited to same-sex marriage,” and indeed, “provides a conceptual basis for rethinking a range of issues, . . . only some of which rank . . . on the gay movement’s agenda.”  If this is a hint of things to come, we have much to anticipate from Boucai’s remarkable fusion of queer theory and constitutional law.

1. Cf. Alice Ristroph and Melissa Murray, Disestablishing the Family, 119 Yale L. J. 1236 (2009); David B. Cruz, Disestablishing Sex and Gender, 90 Cal. L. Rev. 997 (2002).

Embracing Queer Childrearing

Feb 25, 2013 Darren Rosenblum

Darren Rosenblum

For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics.  Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.”  Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible.  Widespread allegations of “recruiting” young people led advocates to avoid discussions of queer influences on children.  As a gay youth activist in the mid-1980s, I remember the resistance and anxiety around gay youth issues within the national and local gay rights movement.  Even in the ensuing decades, advocates’ references to gay and lesbian parents defensively emphasized similarities to straight parenting.  Only recently have we begun to consider differences between queer and straight parents without a heterosexist lens.  Pop culture, from “Modern Family” to the “New Normal,” has recently given us a window for reconsideration, albeit one rife with bubble gum stereotypes.

Cliff Rosky avoids such traps with his latest work, Fear of the Queer Child.  There, he unpacks the long history of heterosexism in parenting and delineates its remnants.  In his previous work, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, Rosky assessed judicial treatment of gay and lesbian parents though gender-differentiated stereotypes in custody and visitation cases.  There, his deft articulation of the interrelationship between sexual identity and gender stereotypes in the parenting context stood out as especially new.  His assertion was that gender – of the parent, the child and the judge – plays a dominant role in the elaboration of homophobic and heterosexist stereotypes about gay and lesbian parents.  The proof he deployed confirmed my long-held belief in the centrality of gender to heterosexism.  In particular, he found that “recruitment” was a charge levied against parents of sons, and explored how the male judges were more likely to adhere to stereotypes about gay and lesbian parents.  Like Father, Like Son avoided a facile identitarianism and did not get stuck in a lengthy refutation.  Fear of the Queer Child holds even more potential to affirm the positive and yes, different, nature of queer parenting.

Rosky extricates heterosexism’s genealogy with regard to children, a task necessary to dispose of this baggage.  The fear of the queer child is “the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual behaviors, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender.”  Rosky draws on multiple historical periods to assert the presumed “contagion” of sodomy and the concomitant fear of initiation of children into homosexuality.  Fear drove the purge of homosexuals from civil service jobs, including teaching, in the 1950s, and persisted well into the post-Stonewall era with the efforts of Anita Bryant and California’s movement to “Save Our Children” from lesbian and gay teachers in the late 1970s.  Rosky traces this history to the present where opponents of LGBT rights do not trade in such starkly homophobic stereotypes; instead, they deploy more “palatable” indoctrination claims to achieve their ends.  But it is not just opponents of LGBT rights who credit these stereotypical notions of gay parenting.  Rosky shows how the LGBT movement has adopted a defensive and even “apologetic” response to false allegations: “[b]y focusing on the empirical questions of how children become queer, LGBT advocates have sought to bracket the normative question of whether children should become queer.”  Although he pulls some of his punches, it is clear that Rosky finds that the “fear of the queer child” is not solely a heterosexual phenomenon. LGBT advocates pursue a strategy that leads them to adhere to assertions that LGBT parenting is just like straight parenting.  For example, LGBT advocates did not embrace empirical studies that suggest LGBT parenting leads to different outcomes than heterosexual parenting.  Likewise, they overlook studies that show children of LGBT parents are more likely to understand gender in nonconformist ways or even be queer – and that could support arguments that queer parenting can be better.  This resonated for me as a queer parent.  Sameness discourses may have a strategic value even if they may undermine queer parenting’s contributions, notably a more egalitarian division of labor and support for nontraditional gender roles.

There are contexts however, where the LGBT fear of the queer child takes on a more normative bent.  LGBT interventions on parenting in the current French debate over marriage equality reflect this same defensive posture. Many gay parents and parents-to-be embrace the central role of a strong female figure in a child’s life – a reflection of the deep legitimacy of the sex binary in France.

Rosky artfully interweaves gender and sexuality theory to define family law’s anti- queer parenting posture.  Rosky’s most compelling conclusion moves beyond the queer child taboo to advocate that the state should adopt a neutral posture with regard to the straight or queer positionality of parenting and of children.  His “no promo hetero” posture with regard to childrearing would bar the state from heterosexist positioning and allow families to embrace queer childhood.  Rosky’s scholarship does justice for the queer kid I was in the 1980s by calling out heterosexist presumptions (within gay rights and progressive movements) that sidelined those of us in the gay youth movement.  His work reminds us of the importance of undermining heterosexist legal regimes and the (more) pointed and active role progressive scholars should play in moving beyond the fear of the queer child.

Reconsidering Work and Family with “the Marriage Equation”

Jan 11, 2013 Kerry Abrams

Kerry Abrams

Every day, married couples make decisions about how to allocate work within their relationships. Some couples specialize, with one person performing a breadwinning role and the other doing the lion’s share of caregiving tasks. Others divide breadwinning and caregiving tasks fairly evenly, and still others perform the breadwinning role together while outsourcing caregiving to housekeepers, gardeners, and nannies. When spouses make a decision about how to allocate work, the decision often feels like a private choice. Feminist scholars have long argued that, to the contrary, choices regarding breadwinning and caregiving are largely shaped, or even coerced, by law.

Deborah Widiss’s article Changing the Marriage Equation provides a new way of analyzing the complicated interaction of law, social norms, and individual choice that leads to gendered roles in marriage. Widiss argues that choices regarding the allocation of paid and care work are profoundly shaped by three factors, which together make up what she calls the “the marriage equation.” Two of the factors of the marriage equation are legal—sex-based classifications within marriage law, and the substantive law of marriage. The third is social—the gender norms of marriage. The article argues that all three factors affect couples’ decisions about the allocation of labor. Widiss also argues that the first factor, sex-based classifications within marriage law, was largely dismantled during the equal protection revolution of the 1970s, but that the other two factors continue to work together to produce gendered outcomes in the allocation of work within marriages. She then suggests that same-sex marriage can provide a natural experiment for assessing the relative strength of substantive marriage law and gender roles within the marriage equation.

Widiss’s marriage equation concept is a useful analytical tool for understanding what many have referred to as a stalled feminist revolution. Feminists hoped that dismantling the first piece of the marriage equation, sex-based classifications, would lead to a more equitable distribution of breadwinning and caregiving work. But despite the formal sex equality now required by the Supreme Court, the persistence of substantive marriage law and cultural gender norms have meant that formal equality has only a limited influence on individual couples’ choices. Widiss’s article gives many examples of the ways in which substantive marriage law still encourages specialization, even without mandating sex-based roles within marriage. For example, two couples that make identical combined salaries but have allocated paid and care work differently will experience a large disparity in Social Security benefits earned over a lifetime. The couple with one breadwinner will earn much more in Social Security benefits—perhaps tens of thousands of dollars more—than the couple with two.

Standing alone, these types of legal incentives to specialize would not necessarily have a gendered effect on personal choices regarding breadwinning or caregiving. We would expect breadwinners and caretakers to be randomly distributed across husbands and wives. But if we add the third piece of Widiss’s marriage equation, societal gender norms, legal incentives to specialize matter. When law encourages one spouse to specialize in breadwinning and the other in caretaking, the vast majority of different-sex spouses opt for breadwinning by the man and caretaking by the woman. Widiss uses social scientific studies to show that couples make this choice even where pure economic theory would suggest they might do otherwise; women who earn substantially more than their husbands, for example, actually do more caregiving work than those who earn the same as their husbands, perhaps because they are trying to correct for their “gender deviance” in out-earning their husbands.

In the final part of Widiss’s article she considers how same-sex marriage might affect the marriage equation. She reviews research showing that same-sex couples tend to be more egalitarian about both breadwinning and caretaking functions within their relationships. But she then expresses a cautionary note. All of these studies were done using data that predated legal marriage for same-sex couples. All they show is that, absent the legal incentives provided by marriage, same-sex couples tend to allocate work differently. But what will happen now that many same-sex couples can marry? Marriage equality, Widiss argues, will provide a unique natural experiment that will demonstrate the effect of substantive marriage law on the one hand and gender norms on the other. This experiment will be especially effective if, as she notes, the Defense of Marriage Act is struck down, since DOMA prohibits validly-married same-sex couples from access many of the federal benefits that encourage specialization within marriage. If same-sex couples who marry turn out to specialize to the same extent that different-sex couples do, then we might conclude that it is the legal incentives provided by marriage that are correlated with specialization, rather than gender difference. If not—if, say, gay male couples tend to both be breadwinners and outsource caregiving more than straight couples or lesbian couples—then we might think that the substantive law of marriage makes little difference, and what matters instead is the each spouse’s performance of a particular gender norm.

When discussing work and family issues, my students often express the view that law can’t do anything about them because gender norms are so entrenched. Widiss gives us a new way of thinking about the role of law. Legal equality, standing alone, may not be able to do much about gender inequality in the home. But reform of laws that appear to be sex-neutral, such as substantive marriage law, actually might result in real change. It will be fascinating to see what the “natural experiment” provided by same-sex marriage yields. We may discover that the substantive law of marriage has been doing more to sustain traditional gender roles than we ever imagined. Or, we may discover that gender norms have a power all their own, regardless of whether they are supported by law.

When “Best Interests” Cannot Guide

Nov 28, 2012 Brian Bix1 comment

Brian Bix

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative.  However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions:  a view that the homosexual lifestyle should be criticized rather than supported.

In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”:  it is in a sense changing the topic, and calling one thing by a more favorable name.  Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).

In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist.  When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child:  custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on.  The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better.   However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent.

Cohen’s focus is on policies affecting “decisions about whether, when, and with whom to reproduce.”  Such policies would include restrictions on who can use in vitro fertilization (IVF) (with some clinics excluding single patients, unmarried couples, older patients, and same-sex couples); laws requiring insurance coverage for IVF costs; laws requiring gamete donations to be non-anonymous; laws criminalizing surrogacy (or commercial surrogacy) or simply refusing legal enforcement of such agreements; and laws criminalizing incest between adult siblings.  As Cohen points out, the “best interests of the child” principle is commonly offered, by both judges and commentators, as one of the justifications for such policies.  However, this assumes a comparison that is almost always absent.  The argument is that children of same-sex parents or older parents or single parents or parents using anonymous gamete donors, etc., suffer some distinctive harm.  However, if (for example), a same-sex couple is not allowed to use the IVF treatment or the surrogate the couple needs to have a child, the child the couple might otherwise have had will now not come into existence.  It is not as though the same child could have come into existence, but with younger, married, opposite-sex parents who did not need to use a surrogate.  This is what Cohen (following Derek Parfit, Reasons and Persons (Oxford, 1984)) calls the “Non-Identity Problem.”  If the choice is between a particular child existing and this particular child not existing at all, then one can hardly say that this child was harmed by being born to a single parent, an older parent, a same-sex couple, a couple who used a paid surrogate or anonymous gamete donors, etc. — unless one could say that that child’s life is so bad that it would have been better had she never been born at all.  We are rightly reluctant to say that, even for children with rather unfavorable circumstances (and courts agree, as shown in their near-universal refusal to recognize claims of “wrongful life” on behalf of seriously ill or disabled children).

Cohen notes that sometimes policies affecting reproduction create “Imperfect Non-Identity Problems,” as there may be cases where the same child would come into existence with or without the policies.  Thus, the same gamete donor might donate even if anonymous donation is no longer allowed, and the same surrogate may be willing to offer her services despite the prohibition of payments above expenses.  In such cases, hypothetically, the same child could come into existence who would have been born without the regulation, and this same child would have the better circumstances created by the regulation – in any event, a true comparison can be made — but these cases are likely to be exceptional.  It is more likely that policies of these sorts will affect whether children are born and which children are born (e.g., as the class of potential gamete donors who will still donate even if they are to be identified differs from the class willing to donate anonymously, those having children using gamete donors will likely have genetically different children depending on which policy is in place, and those needing gamete donors may end up having no children if a policy of non-anonymity leads to a shortage of donors, as has occurred in some countries).

In summary, Cohen’s important article reminds us that, in the area of regulation of reproduction (as in many other areas of family law), we — commentators, courts, and lawyers alike — must get out of the intellectually lazy habit of defending our preferred public policies based on “best interests of the child,” and either find an alternative defense or change our policy preferences. ((For further work extending Cohen’s analysis in Regulating Reproduction, see also I. Glenn Cohen, Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012) and Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson, 97 Minn. L. Rev. (forthcoming 2012), available at SSRN.))

Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws

Nov 2, 2012 Katharine Bartlett

Katharine Bartlett

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling?

Perhaps we assume that child molestation statutes adequately distinguish innocent behaviors from alarming ones. Not so, Rich claims. Some child molestation statutes impose specific intent requirements compelling prosecutors to prove sexual motivation or illicit intent. Others carve out exceptions to general intent requirements for behaviors construed to be normal caretaker responsibilities. Either way, Rich contends, intent determinations turn on social norms (or “common sense”) about appropriate parenting behavior, and these norms are highly gendered. A mother blowing kisses all over a child’s belly is relatively common and unproblematic. The same behavior by a father, grandfather, stepfather, or boyfriend raises suspicion. Further, prosecutors tend to judge the appropriateness of some behaviors—for example, bathing with the child, parental nudity, diapering practices—by whether the child’s mother has authorized them. Mothers are the gatekeepers, and fathers parent at their own risk. They may do as mothers say, but not necessarily as they do.

Rich objects to the increasingly broad definitions of child molestation because, whether they are applied to just to men or to men and women equally, they intrude on family autonomy and privacy. Her emphasis, however, is on the specific damage caused by treating men differently. Gendered child molestation standards generate gendered parenting behaviors, as men understandably avoid actions that may raise suspicion about them as parents, even as women through these same actions deepen their own intimacy with their children.

Rich holds feminists at least partially responsible for the gendered standards she identifies. She blames primarily dominance feminists, who heightened awareness of sex abuse, urged successfully that legislators enlarge its definition, constructed molestation as a sex-specific wrong that men commit against innocent women and children, and insisted that prosecutors and judges believe women and children when they claim abuse. This strategy helped to entrench societal understandings of men as dangerous sexual predators who are not to be trusted to get too close to children, and constrained male behavior and self-definition accordingly.

Rich argues that spooking fathers is not in women’s interests, and that feminists should have known better. Liberal feminists, in particular, understood that loving and engaged fathers who enthusiastically assumed their share of caretaking responsibility for children were critical to equality for women. Rich concludes that these feminists failed feminism, and families, when they did not resist the overly broad and gendered construction of sex abuse that dominant feminists promoted. Perhaps liberal feminists were asleep at the switch; maybe they were reluctant to criticize a brand of feminism that seemed to put women’s interests front and center. Either way, she argues, they neglected to act on their own egalitarian principles.

Liberal feminist complacency on this and related family law issues has created the need, and space, for a “new camp of post-dominance” feminists,⁷ with which Rich allies herself. By Rich’s description, these feminists have more backbone than liberal feminists, and they take more seriously the feminist values of autonomy and liberty. They believe that the law is overly paternalistic when it intervenes too much in family relationships, and that this paternalism “prevents women from exercising personal agency to decide what kinds of family relationships they would like to form.”  More broadly, post-dominance feminists oppose the “sexual suspicion of men at the heart of the dominance feminist critique”—suspicion that “threatens men who have adopted an ethic of care.”

Many family law issues have divided feminists, but this one may be more challenging than most. Rich anticipates the potential downsides to the attention she draws to the lack of gender neutrality in the prosecution of child molestation—that the conduct of mothers will be more closely scrutinized; that too much latitude will be given to abusive fathers; and that only the most privileged men will benefit from creating more gender-neutral standards. Rich responds to these difficulties by acknowledging the necessity for women’s autonomy and children’s safety, and by arguing that greater parental autonomy will serve gay parents as well as middle-class fathers.

Yet it is not clear that the problem Rich describes can be easily resolved. The inconsistency she identifies suggests anxieties about parenting, sex, and equality that many feminists, despite their own best intentions, cannot seem to dispel. We want men to share responsibility for children and are critical of them when they do not do so. At the same time, we do not seem to trust men with children in the same way we do mothers. Rich argues that feminists cannot have it both ways: we cannot both treat men suspiciously, as second-class parents, and expect their full and equal commitment as loving caretakers. She’s right, of course—whether or not we have the will to act on her powerful insights.

1. E.g., Melissa Murray and Jeannie Suk.  See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006).

Delinking Sex/Gender from Parenting

Oct 5, 2012 Carlos Ball1 comment

Carlos Ball

As we all know, the question of whether sex/gender should serve as an eligibility criterion in the distribution of marriage licenses has received a vast amount of attention over the last two decades. Although the issue of whether sex/gender is a crucial element of parenting has received less attention, it is no less important. In this exciting and path-breaking article, Darren Rosenblum calls for the unsexing of motherhood and fatherhood—that is, for the severing of parental categories from biological sex. In Rosenblum’s perfect world, anyone—regardless of sex—can be a mother or a father. The decoupling of parenting from sex will “ultimately eliminate the presumption that the primary parent is the mother, in which case a parent of any sex could claim to be the primary parent.” He adds that “[p]arents would be expected to provide nurturing, support, structure, and discipline to children, but they would not need to divide these and other elements of childcare based on parental biosex.”

As Rosenblum perceptively explains, a powerful interplay of institutions and norms help to link parenting categories with sex. One of these is the market. The fact that men dominate the market sphere reinforces cultural stereotypes about women’s “natural” capabilities in the domestic sphere. And natural understandings of motherhood place great importance on genetics, gestation, and lactation, seemingly ignoring the fact that it is possible for women—those who become parents through adoption or surrogacy, for example—to be mothers in the absence of one or more of these biological factors.

After detailing the powerful forces that contribute to the sexing of parenting, Rosenblum cautions that legal rules promoting thin gender neutrality will not lead to its unsexing. Here Rosenblum astutely uses the Family and Medical Leave Act (FMLA) as an example. On its face, that statute offers male and female parents the same unpaid leave opportunities. This gender neutrality is thin, however, because it leaves in place powerful social default rules that discourage men from taking parental leaves and place greater childcare responsibilities on women. The FMLA also does not account for market forces that reward male paid work, which create further disincentives for men to take unpaid leaves.

Rosenblum contrasts the FMLA’s thin gender neutrality with the thick neutrality of Sweden’s parental leave policy. Under that policy, two employed parents are entitled, as a unit, to up to eighteen months of parental leave. But in order to receive the maximum amount of leave time, each parent is required to take two months of leave. After that, couples are free to apportion between themselves the remaining time as they deem best. The policy also requires that the leave be paid (at 80% of salary for the first three hundred and ninety days and at a flat rate after that). In addition, the policy allows both parents to be on leave simultaneously and permits both to return to work part-time until the child reaches the age of eight. And, finally, the Swedish government provides a comprehensive child daycare system, which helps parents with the transition back to work.

Like the FMLA, the Swedish leave policy is gender neutral. But as Rosenblum persuasively argues, only the Swedish leave rules account for the market and social forces that make it less likely that men will take parental leave from work. Creating incentives for both parents to take time off from work in order to care for children has led the vast majority of new Swedish fathers to take parental leave.

One of the reasons why this is a superb article is that Rosenblum is fully cognizant that the unsexing of parenthood will not come about through legal rules that fail to account for the economic, social, and cultural forces which promote gendered parenting. Indeed, thin gender neutrality’s failure— which in my view includes not only the FMLA, but also the repudiation of the tender years doctrine and the notion that only men should be responsible for alimony and child support—to degender parenting is striking. Our laws may promote gender neutrality in parenting, but our culture lags far behind.

As Rosenblum points out, much of the unsexing of parenthood is taking place in family forms outside of the traditional married heterosexual household. Single individuals and same-sex couples, for example, parent in ways that combine the traditional maternal and paternal roles. Indeed, the empirical literature suggests that lesbian parent couples are able to divide the work outside and inside the home more equitably than married heterosexual parents. It is likely that this is in large part because same-sex couples are not able to fall back on default rules that assign parental roles and responsibilities according to gender.

Although the challenges in degendering parenthood are daunting, this article helps us understand the nature of those challenges while offering a compelling vision of how to overcome them.  I do not know if it will be possible to fully unsex parenting in our lifetimes. But after reading Rosenblum’s article, I am more persuaded than ever that it is crucial that we try.