Sep 11, 2012 Camille Gear Rich
Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.
Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners.
Davis convincingly argues that scholars analogizing between these two types of marriage only seem convincing because they frame the debate at a high level of generality. They argue that both marriage forms require that we honor a right to “freedom” in the formation of intimate relationships, speaking in the “due process” and “fundamental rights” idiom of Lawrence v. Texas. However, Davis argues that polygamous marriage’s constitutive and non-shared feature is its seriality. Polygamous unions are constantly in the process of contracting and expanding, she explains, as the partners to the marriage add and subtract spouses. With this contrast made clear, Davis moves to an analysis of the distinct and deeply serious agency risks inherent in polygamous unions, with the goal of showing how they might be overcome.
In order to properly regulate polygamy, she explains, we must focus on the special autonomy and economic risks faced by sister wives in polygamous marriages. While she does not make this pitch explicit, she invites her readers to imagine the creation of a “Uniform Sister-Wife Act,” a series of sticky default rules that would ensure that partners to polygamous marriages can protect their fair share of the “marital pie” in the face of a constantly evolving marital relationship.
Davis is fearless and unflinching in the portrait she paints of polygamous unions. She challenges us to take polygamy on the terms we currently find it, typically established as a one husband, multiple wife model, with the husband as the expected primary financial support. Additionally, she reveals the numerous, diverse and radically different constituencies with a vested interest in polygamy’s decriminalization: feminists, Mormons, Christian fundamentalists, immigrant groups, members of the Nation of Islam and black nationalists. (Who knew that one of the largest groups of practicing polygamists is a collection of the last two groups mentioned above, living in Philadelphia?)
As a result of Davis’s efforts we are left with a far more complicated understanding of the role polygamy plays in contemporary American culture. Her project would have been vastly simpler had she bracketed the contemporary realities of polygamous unions and focused her model solely on the highly seductive, feminist utopian version of polygamy that some scholars have imagined. This utopian version assumes that polygamous marriages may contain more than one husband, and/or that women and men exercise relatively equal economic power in the home, as both sexes are equally able to participate in the world of paid work. Davis instead invites the reader to embrace some of the more disturbing examples of polygamy, as it is practiced today. She reveals that the attendant risks associated with contemporary polygamous unions can be addressed by drawing on models in partnership law. As a result of her efforts we have a careful, thoughtful, and provocative analysis of the risks of domination produced by existing polygamous unions, even as she gives us tools that will allow for the regulation of the imagined polygamous unions of tomorrow.
Davis’s piece of course will make readers think of the now-cancelled HBO Drama Big Love, which followed the trials and travails of Bill Hendrickson and his three sister wives (Barb, Nicki and Margene) as they negotiated life in suburban Utah. Davis explains that by moving polygamy from the compound to the suburbs, the show’s producers ushered polygamy into a new era in popular discourse, inviting us to imagine the polygamous family as just another family living next door. But after reading Davis’s piece, feminist viewers of Big Love will be reminded of the complex economic dance these sister wives faced as the marriage evolved. As the series progressed, multiple unexpected forms of domination emerged, prompting numerous questions. What recourse does a sister-wife have when she is forced to become the primary childbearer for the entire family? What recourse does she have when another wife attempts to outsource childcare duties to her? What legal remedies can she claim when exploitative demands are made on her earnings by her fellow sister wives? Finally, and perhaps most importantly, what recourse does she have when she opposes the introduction of a new sister wife?
The utopian vision of polygamy that some feminists imagine makes these negotiations seem seamless and easy. Big Love reveals that they are often ugly and difficult. Regulating Polygamy provides solutions to some of the thorniest problems, and reveals that others are simply unexceptional challenges that are already embedded in dyadic marriages.
Davis’s piece is profoundly important in my view because it comes at a time when utopian feminist arguments about polygamy are gaining ground. She draws our attention to the information deficits and negotiation risks women face prior to entering these marriages, and the potential dilution of voting interest and economic share as the marriage evolves to include more partners. The issues she raises are sure to give readers pause, particularly those who subscribe to view that we should fold back into the family relationship many of the maternal and wifely responsibilities working mothers now outsource to housekeepers, nannies and other care providers. That is, feminist readers may conclude that women are far safer in dyadic marriages – albeit relying heavily on the network of commercial or extended family helpers that Melissa Murray describes, rather than accepting the complications polygamous marriages bring. I myself am deeply concerned about the way marriage often compels working women to outsource the most difficult “wifely” nuturing and care giving responsibilities, and to assign them to poorly paid brown and black bodies. I am deeply concerned about the tendency to downshift intimacy and caregiving into short term, disposable relationships—a kind of treatment we do not expect in families. Yet Davis’s article makes one profoundly aware that expanding the marriage relationship and bringing in new partners to share these responsibilities does not resolve these perennial questions. Indeed, it makes resolution even more fraught.
There is much to recommend Regulating Polygamy. One can trust Davis to be a neutral and pragmatic guide as she explains polygamy’s challenges. She is neither an advocate for polygamous marriage, nor a detractor intending to warn us away from this family form. The reader leaves her discussion with a better understanding of how commercial law can provide helpful direction as we determine how to create legal protections that will adequately inform and ensure the fair treatment of sister wives (and potentially brother husbands) in the future. However, she also paints a compelling picture of the challenges we face in attempting to regulate polygamy. Policymakers would do well to keep her on speed dial if they ever take up this challenge.
Jul 19, 2012 Melissa Murray
In the not too distant past, it was taboo for women (and men) to speak openly about miscarriages, infertility, or anything having to do with the delicate business of giving birth. More recently, however, the social anxiety around these topics has receded. Many of us now speak openly about the pain of a miscarriage or an unsuccessful round of IVF. Indeed, some find it cathartic to broadcast their grief to a wider audience, blogging about their experiences or discussing it with friends (broadly defined) on social media. But it is one thing to enlist friends and social media in the grieving process. It is quite another thing to involve the state. Or is it?
That is the question that Carol Sanger takes on in “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law. In this penetrating and thought-provoking Essay, Sanger takes on the taboo subject of stillbirth—the act of delivering a dead child—and the emergent movement that seeks to enlist law to help the parents of stillborn children deal with their grief and loss. Specifically, Sanger considers “Missing Angel” legislation—laws that authorize the state to issue parents a birth certificate for a stillborn child. The whole thing sounds at once macabre and incongruent—issuing a birth certificate for a child that was born dead? But, as Sanger observes, it makes perfect sense to grieving parents, for whom the standard issue fetal death certificate fails to capture the magnitude and profundity of their loss.
In order to understand the nature of the loss, Sanger explains, one must understand the transformation of pregnancy and childbirth in our culture. Medical technology has “permanently altered our relationship to the fetus.” In particular, obstetric sonography “has made fetuses present” in the lives of their families “in ways that once were possible only after the baby was born.” This process, which Sanger terms “social birth,” now precedes biological birth. And it is the fact of social birth that makes stillbirth—and the standard legal response to it—so confounding to grieving parents. A fetal death certificate seems to many parents of stillborn children “an offensive and bureaucratic response to their circumstances and suffering.” It denies for many the basic fact that there was a pregnancy, labor, and the delivery of an actual baby, rather than a fetus. In short, it is a clinical response that fails to capture the complexity of the parent-child relationship in utero, and in failing to grasp the nature of this relationship, compounds the parents’ grief.
Stepping in to supplant the fetal death certificate (and all of its inadequacies) are Missing Angels Acts, which authorize states to issue stillborn birth certificates. The difference in nomenclature may be mere semantics to some, but for grieving parents it is deeply meaningful. As Sanger observes, the certificates are at once an artifact of mourning, a public record that provides “dignity and validation” and a posthumous change of status to the lost child, and a means of confirming parental identity. Sanger is quick to note that stillborn birth certificates, unlike other forms of public records, do not confer a tangible benefit or right upon the surviving family members. Their purpose is primarily therapeutic—“a hug from [the state] for grieving mothers.”
It all seems pretty innocuous. If a stillborn birth certificate offers some solace to grieving parents, what is the harm? Sanger does not disavow Missing Angel Acts and their aim to push the state into a more compassionate and therapeutic posture, but she does urge us to think critically about what this development might mean for legal culture. As an initial matter, Sanger notes that stillborn birth certificates are something of a legal fiction—and one that may compromise demographic integrity if unchecked. But her concerns go beyond the integrity of public record-keeping. Stillborn birth certificates, like victim impact statements, take seriously law’s affective and therapeutic potential. And, as Sanger’s account of those who lobby for Missing Angels Acts suggests, this potential is real and meaningful—law can “soothe the emotional needs of a distressed constituency.” But Sanger worries about the collateral consequences of this therapeutic turn. Legal recognition, she notes, is a tricky business. In recognizing the pain of stillbirth, does law prioritize this form of fetal loss above others like miscarriage, elective abortion, or the destruction of unused embryos? Should these other forms of fetal loss be documented, and the grief with which they are associated recognized, by the state? How do we determine the “appropriate scope of legal compassion?”
Importantly, Sanger’s critique of the promise and perils of public recognition has implications that extend beyond the narrow context of stillbirth and fetal loss. For example, scholars of marriage and sexuality have frequently noted the degree to which legal recognition turns on exclusivity—for recognition to mean something, there must be an other that goes unrecognized. With this in mind, Sanger’s point that the recognition of stillbirths prioritizes some forms of fetal loss over others echoes concerns that many have over the question of legal recognition of same-sex couples through marriage and alternative statuses. Relatedly, her observations regarding the stillbirth birth certificate’s ability to provide dignity and validation sound in the same register as appeals for marriage equality that evoke the marriage license’s ability to dignify and validate same-sex relationships. In the context of the marriage equality debate, most have accepted unquestioningly law’s ability to confer this kind of dignity and validation. But Sanger’s nuanced reading of Missing Angels Acts belie such a facile conclusion.
Relatedly, Sanger worries that Missing Angels Acts allow the state to promote a kind of compulsory reproductive mourning that shapes emotional responses in ways both miniscule and profound. She argues that, in providing a legal imprimatur for stillbirth mourning, Missing Angels Acts “define stillbirth as a particular kind of event and suggest what suffering mothers of stillborn children need (or are supposed to need) and how they can get it.” Though private gestures like a doctor referring a grieving parent to a support group, effectively do the same thing, there is something distinctive about the state taking on this role. The tension between the public and private that Sanger identifies in the context of stillbirths also applies in the marriage equality debate. Though the mainstream LGBT rights movement has pressed for public recognition through marriage, others have argued that the state’s role in recognizing marriage contributes to a normative preference that renders marriage more or less compulsory for all who are eligible for it. They argue that the state should take no role in recognizing adult intimate relationships at all, relying instead on private ordering for legal recognition. This is not to say that The Birth of Death provides a platform for those who would reject marriage equality. But the comparison between marriage equality and the stillborn birth certificate underscores Sanger’s point that the politics of public recognition—whatever the legal context—are complex and fraught. Though Sanger focuses her lens solely on stillbirths, The Birth of Death offers important insights that transcend this narrow issue.
Sanger’s final caution focuses on the tension between Missing Angels Acts and abortion politics. As she notes, “[p]art of the strategy to make abortion hard to get and hard to choose has been to define fetuses and embryos as infants, children, persons, and victims.” Though the Missing Angels Acts advocates profess no stake in abortion politics, it is easy to see the many ways in which the issuance of a stillbirth birth certificate implicates the question of fetal personhood. In the end, Sanger does not take a position in the debate, noting only that the salient issue is “whether there are reasons to hesitate before blurring traditional markers between life and death and between private and public mourning as a matter of law. And if we do blur these lines, how should we conceptualize and measure the costs of doing so?”
In the end, there is much to recommend this piece. First, it is a classic Essay—a thought-piece that explores an interesting issue, but does not succumb to the temptation of offering a hastily cobbled together prescription. Instead, its purpose is to inform and provoke thought. On these fronts, The Birth of Death is resoundingly successful.
Second, I love that The Birth of Death is classic Carol Sanger, which is to say that it, like much of her work, is neither exclusively doctrinal nor exclusively theoretical, but instead focuses on the relationship between law and culture. And it is her trenchant eye for identifying one-offs like the Missing Angels Acts and locating them in a broader cultural and legal milieu that is Sanger’s trademark. In this way, The Birth of Death echoes her recent work on Infant Safe Haven legislation (Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753 (2006)) and mandatory fetal ultrasounds for those seeking abortions (Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. Rev. 351 (2008)). Though pieces that blend law and cultural studies have been criticized for being fluffy and insubstantial, The Birth of Death, like Sanger’s other work, offers a robust portrait of legal culture anchored in her careful parsing of legal text and supported by her keen eye for important historical and literary detail. In the end, it is the kind of piece that stays with you, popping up at unexpected moments and forcing you to see the world in a new light.
Jul 16, 2012 A. Michael Froomkin
Family Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Janet Halley
Royall Professor of Law
Harvard Law School
Professor Melissa Murray
U.C. Berkeley School of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Kerry Abrams
Albert Clark Tate, Jr., Professor of Law
University of Virgina School of Law
Professor Carlos Ball
Judge Frederick Lacey Scholar
Rutgers School of Law, Newark
Professor Katharine Bartlett
A. Kenneth Pye Professor of Law
Duke University School of Law
Professor Caroline Bettinger-Lopez
Associate Professor of Clinical Legal Education
Director, Human Rights Clinic
University of Miami School of Law
Professor Brian Bix
Frederick W. Thomas Professor of Law and Philosophy
University of Minnesota
Professor Martha Albertson Fineman
Robert W. Woodruff Professor of Law
Founding Director, Feminism and Legal Theory Project
Director, Vulnerability and The Human Condition Initiative
Emory Law School
Professor Havva Guney-Ruebenacker
Boston University School of Law
Professor Shani King
Co-Director, Center on Children and Families
University of Florida Levin College of Law
Professor Angela Onwuachi-Willig
Charles M. and Marion J. Kierscht Professor of Law
The University of Iowa College of Law
Professor Intisar Rabb
Boston College Law School
Professor Camille Gear Rich
USC Gould School of Law
Professor Kerry Rittich
University of Toronto Faculty of Law
Professor Darren Rosenblum
Pace University School of Law
Professor Laura Rosenbury
Associate Dean for Research and Faculty Development
Washington University School of Law
Professor Clifford Rosky
University of Utah S.J. Quinney College of Law
Professor Jeannie Suk
Harvard Law School
Professor Philomila Tsoukala
Georgetown University Law Center
Jul 16, 2012 A. Michael Froomkin
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
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Jul 16, 2012 A. Michael Froomkin
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics can go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
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