For several decades, scholars, lawyers, and judges have debated whether laws against same-sex marriage are a form of discrimination based on sex. Most recently, during the oral arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether it was “necessary to get into sexual orientation to resolve this case,” given that the challenged marriage laws treated couples differently based on their sex: “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
For a long time now, the sex discrimination argument for LGBT rights has been a darling of law professors, thoughtfully developed over the years by several of the legal academy’s leading minds. Unfortunately, it has not fared so well among judges. Although plaintiffs have been advancing this argument since the 1970s, only a handful of trial and appellate judges have endorsed it. Notwithstanding the Chief Justice’s remark at oral argument, the sex discrimination argument was not specifically addressed in Obergefell itself. After Obergefell, legal scholars are left to wonder what, if anything, will come of the hard work that so many have devoted to this subject for so many years. In her recent essay, Risky Arguments in Social-Justice Litigation, Suzanne Goldberg takes up the question of why courts have been so reluctant to adopt the sex discrimination argument in same-sex marriage cases.
This reluctance is a subject that others have touched upon before her—but never in so much detail. Rather than focusing on the sex discrimination argument’s merits, Goldberg presents the argument as a case study of what she calls “risky arguments”—claims that “ask decisionmakers to revisit and unsettle deeply rooted or widespread social norms or practices”—“to find that discrimination is present in generally accepted societal hierarchies . . . or other familiar practices.” (P. 2089.) Such arguments, she explains, “not only seek a desired outcome but also aim to shift a court’s conceptualization of the problem at issue.” (P. 2089.) By definition, these “norm-challenging” arguments present “greater risks”—bigger “upsides” and bigger “downsides.” (P. 2089.) She contrasts “risky” arguments with “discrete” arguments—claims that seek “minor tweaks,” or more “incremental” changes to the social order.
Goldberg’s primary contribution is her wide-ranging exploration of the reasons that courts may have been avoiding the sex discrimination argument—not only the “theoretical” concerns raised by previous scholars, but also what she calls the “logistical” (P. 2122), “doctrinal” (P. 2124), and “psychosocial” (P. 2129) concerns of lawyers and judges. Among this list of possibilities, two explanations stand out as the most plausible: (1) “the way that the argument challenges decisionmakers’ own naturalized sense of sex and gender,” (P. 2130) and (2) the argument’s “impact on enduring sex-based distinctions outside of gay-rights cases,” such as “dress and grooming codes” (P. 2125), “parenting and military service” (P. 2126), single-sex schools (P. 2126 n.142), and single-sex bathrooms (P. 2133 n.170). Building on a “speculation” offered by Mary Anne Case, Goldberg reminds us that “most judges are or have been married to different-sex partners.” (P. 2130.) For such judges, Goldberg opines, the sex discrimination argument “may cut too close to home.” (P. 2130.) In short, Goldberg describes a “judicial fear—albeit unexpressed” that “a categorical legal rejection of sex-based rules would also erase social distinctions between men and women,” (P. 2133) destroying the foundation of patriarchy and heterosexuality itself.
Although Goldberg’s essay was published before Obergefell was decided, it poses a question that remains unanswered—and one that is poised to have a profound impact on the trajectory of the LGBT movement. Same-sex couples now have the freedom to marry in all fifty states, but there are still twenty-eight states without LGBT-inclusive antidiscrimination laws and another twenty states without LGBT-inclusive hate crimes laws. In these states, same-sex couples can marry, but LGBT people have no specific, explicit protections from being fired from their jobs, evicted from their homes, denied public services, targeted in public schools, and assaulted or murdered—all because of who they are and whom they love. To make matters worse, North Carolina has specifically mandated discrimination based on “biological sex” in bathrooms, and similar legislation is actively being considered in other cities and states.
To remedy these wrongs, national LGBT organizations have joined Democratic legislators to announce the introduction of the Equality Act, a bill to add sexual orientation and gender identity to the protections of the Civil Rights Act of 1964 and other federal antidiscrimination laws. In recent years, however, LGBT plaintiffs have recently begun winning sex discrimination claims under federal antidiscrimination laws—not only in employment discrimination cases under Title VII, but also in school cases involving bathroom access under Title IX. As a result, the LGBT movement is facing a new iteration of the risks explored in Goldberg’s essay—whether, when, and how best to advance the sex discrimination argument for LGBT rights.
Justice Kennedy raised some hackles when he said in Obergefell v. Hodges that “[m]arriage responds to the universal fear that a lonely person might cry out only to find no one there.” Some wondered how Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—one widowed, one never married, and one long-single—must have felt to sign on to an opinion grouping them together with other souls “condemned to live in loneliness.” Others criticized the opinion’s rhetoric as unnecessarily demeaning to life outside of marriage. Justice Kennedy’s disparagement of single life might have been lamentable, but it usefully highlights a common experience of those who do not participate in the social institutions—sex, partnership, organized religion, and child-rearing—that society deems fundamental. Such individuals often find themselves the targets of marginalization, animus, or unfair treatment under the law.
In her thought-provoking article, Negative Identity, Nancy Leong brings together several of these identities—atheist, asexual, single, and childfree—and builds a case for their protection. Identity is a complicated subject and Leong takes care to define and defend her categories. Leong uses the term “negative identity” to refer to those identities marked by indifference or antipathy to something that much of society views as fundamental. These identities are negative in terms of opposition but not in terms of absence: the childfree, for example, do not merely lack children; they have chosen not to have children based on emotional commitments, personal and professional freedom, environmentalism, or simply a desire to allocate personal resources to other causes. By defining the term in this way, Leong means to distinguish between those who have affirmatively taken on these identities from those with only passing affiliation with these identities. That is, the term is intended to distinguish between those who consciously choose to forego sex and those who are celibate because they are between intimate relationships. Likewise, “negative identity” focuses on those who have chosen to forego parenthood from those who may desire children, but who have not yet acted upon these desires or been successful in their attempts at parenthood.
Leong builds on some stellar work, much of it recent, identifying these different identities and cataloguing the ways in which members experience legal disadvantage. So what is gained by bringing these identities together, especially since they are marked by significant differences as well as similarities? The answers to that question are particularly revealing and instructive in what they teach about discrimination and harm. Relying on “ingroup theory,” Leong explains that in a world of diverse preferences, people will often band together to form groups around shared identity characteristics. Positive identity groups will advocate for policies advancing their shared interests, which naturally tend to exclude people in negative identity categories. She also observes that negative identity tends to prompt questions—Is that person trying to have a child? Are they infertile?—that require constant self-justification and public explanation. The pressure to justify or downplay differences inevitably takes a toll, as does the experience of being marginalized from discourse presuming that the positive identity categories are of universal importance. Added to these harms is animus. For example, people would vote against, or disapprove of their child marrying, atheists more than other cultural or ethnic minorities. One recent study demonstrated that, in comparison to married people, single people were more likely to be labeled immature, insecure, self-centered, unhappy, lonely, and ugly.
These harms and their causes might seem exogenous to law, a misperception that Leong sets out to correct. Although few laws explicitly target negative identities for disfavored treatment, as Leong makes clear, many laws nonetheless exclude negative identities from their protections to varying degrees. Title VII, for example, does not protect single people from discrimination; the Family and Medical Leave Act’s narrow coverage protects spousal or parental relationships, but few other kinship categories. These forms of exclusion impose tangible burdens on negative identities: citing the work of Lily Kahng, Leong notes that single people making the same income as a couple—either married or unmarried—will usually pay more tax, and never less. And the law often remains silent in the face of private discrimination, allowing health clubs to charge people in families less for gym memberships on a per capita basis than a single person, or employers to insure family members at reduced rates. This legal landscape disadvantages negative identity groups relative to their counterparts. Moreover, laws that at first glance seem merely to benefit to a positive identity group may actually extract a cost from their negative identity counterparts. A lactation room, for example, could arguably come at the expense of the childfree, either by reallocating space that could be used by other employees or imposing a cost on the employer that may be distributed among all employees.
To resolve these competing claims, Leong distinguishes between subsidies, which would presumptively be problematic, and accommodations, which would not. A subsidy is a transfer from one group to another of a benefit that both would find equally valuable. An accommodation, on the other hand, would provide a benefit to one group that would be of substantially less value to non-group-members. Charting the course between a subsidy and accommodation can be treacherous, as scholars who have studied the ways in which accommodations extract costs from objectors have noted. Recognizing this difficulty, Leong recommends a holistic inquiry of a range of relevant factors when making the determination of what is a subsidy and what is an accommodation. A lactation room would fall on the accommodation side of the line because it would be relatively easy to implement—involving just a small space, minimal technological or engineering interventions—and because it would promote equality by addressing a historical obstacle to women’s participation in the workplace. But she largely leaves for another day how the test would play out in other, more contentious, circumstances.
In this and previous work, Leong demonstrates a refreshing sensitivity to the ways in which any given identity can simultaneously benefit and harm, or constrain and liberate, the people within those categories. People in positive identity categories may suffer from forms of discrimination that those in negative identity categories can evade. And the same characteristic that is rewarded in some contexts—say, being childfree in a law firm—might be penalized in others. In this moment when a great deal of attention is being paid to the post- or non-marital family, Leong helpfully reminds us to think of groups that the law has traditionally ignored, and to consider the effect that benevolent efforts to accommodate positive identity groups might have on their interests.
As marriage equality became a nationwide reality, those who opposed same-sex marriage increasingly turned their attention to issues of reproduction and parenting. In 2012, David Blankenhorn, a longtime opponent of same-sex marriage, famously announced his newfound support for marriage equality in the pages of the New York Times. Yet Blankenhorn continued to oppose important aspects of family formation by same-sex couples, arguing that “children born through artificial reproductive technology” should have “the right to know and be known by their biological parents.” Same-sex couples commonly raise children conceived with anonymous sperm or egg donors, and same-sex-couple-headed families are much more likely than their different-sex counterparts to include nonbiological parent-child relationships. As Blankenhorn’s views suggest, opposition to LGBT equality can seamlessly continue in new forms. Indeed, researchers at Blankenhorn’s Institute for American Values are urging “an active public debate over whether it is ethical for the state to support the deliberate conception of children who will never have the chance to be raised by their biological parents.” Elizabeth Marquardt, the director of the Institute’s Center for Marriage and Families, advocates a number of restrictions on family formation through assisted reproductive technologies (ART). Restrictions on the use of ART to form nonbiological parent-child relationships will have a distinct impact on reproduction and parenting by same-sex couples. In marriage equality’s wake, alternative reproduction has clearly emerged as an important new front in the culture wars.
In her engaging and insightful new article, The Oedipus Hex: Regulating Family After Marriage Equality, Courtney Cahill focuses on a specific argument put forward by those seeking to restrict alternative reproduction—what she terms the incest prevention justification. As Cahill explains, scholars and advocates argue for greater regulation of alternative reproduction to minimize the likelihood for accidental incest among donor-conceived children.
Of course, conservative opponents of alternative reproduction make a number of other arguments, many of which explicitly endorse gender-differentiated parental roles. For instance, Marquardt argues that alternative reproduction, to the extent it facilitates same-sex family formation and single parenting, regrettably produces “motherless” and “fatherless” families. A narrow band of the political spectrum now supports such arguments. But the incest prevention justification finds support across the ideological spectrum. Prominent family law scholar Naomi Cahn, for example, invokes the fear of accidental incest as a basis for supporting laws prohibiting donor anonymity or limiting the number of gamete donations from a single donor. Unlike Blankenhorn and Marquardt, Cahn supports LGBT equality and nontraditional families. The incest prevention justification, then, has the unique capacity to unite ideological opponents in matters over the family.
This feature of the argument from incest is precisely why Cahill’s analysis is so important. She uncovers how a seemingly non-ideological claim can conceal positions that threaten to undermine a diverse array of family forms. As Cahill explains, the justification’s “normative objective is largely unseen, appearing on its face to be a biologically-driven response . . . to the considerable expansion of alternative reproduction in the United States.” Through a wide-ranging and theoretically sophisticated analysis, Cahill then reveals the justification’s productive force. Like the incest taboo more generally, the incest prevention argument against ART can be used to “establish a normative conception of the family, one that necessarily includes two biological parents of different sexes and that is bound by ‘the genetic tie.’” In other words, the incest prevention justification can curtail efforts to depart from the biological, gender-differentiated, heterosexual family—while seemingly remaining silent about the very norms it enforces.
Ultimately, Cahill rejects the incent prevention justification on both normative and constitutional grounds. By “establish[ing] the traditional family—married parents and their biological children, sexually conceived—as the ideal family,” the justification marks as inferior—and suspect—family formation through alternative reproduction. Such family formation is vital to the reproductive projects of same-sex couples and single parents—not to mention a growing number of different-sex couples. Furthermore, by “establish[ing] the donor network as a family”—that is, by understanding donor-conceived children as existing in familial networks such that incest becomes a concern—the justification prioritizes biological and genetic connections over chosen families and social parenting. The drive toward the traditional family and the emphasis on biology together marginalize the reproductive and familial choices of same-sex couples and single parents and undermine social kinship.
Cahill bolsters her normative claim with a compelling constitutional argument, showing how the incest prevention justification runs against the reasoning that animates Obergefell v. Hodges, the Court’s recent marriage equality decision, and the long line of constitutional family-related cases that preceded it. While she extracts principles of “familial autonomy and familial self-determinism” from Supreme Court cases in the second half of the twentieth century, Cahill nonetheless recognizes their limitations; even when they departed from the traditional family, those cases tended to protect biological relationships. Against this backdrop, Obergefell and other marriage equality decisions intervened. As Cahill shows, marriage equality jurisprudence does not merely further the familial autonomy precedents; rather, it expands their reasoning to reach relationships that depart from the heterosexual, gender-differentiated adult couple and the presumption that they are the joint biological parents of the children they are raising. In other words, marriage equality resists the very model of family embedded in the incest prevention justification.
The Oedipus Hex marks an important contribution to an ongoing debate over legal regulation of alternative reproduction. More broadly, though, Cahill’s article intervenes in a vital post-marriage equality debate just beginning to take shape. For many years, conflict over same-sex marriage centered around two primary questions. In the broader public debate, supporters and opponents disputed whether same-sex couples should have access to marriage. Within LGBT circles, scholars and activists considered whether marriage should be an LGBT priority. But now that marriage equality is a nationwide reality, a new set of difficult questions is emerging: How does marriage equality affect the broader family law regime? How does the reasoning on which marriage equality is premised influence constitutional rights in the family? How, if at all, does marriage equality support transformations in the regulation of reproduction and the family? As Cahill carefully probes the relationship between marriage equality—as a conceptual and constitutional matter—and alternative reproduction, she suggests just how much is at stake. The meaning of marriage equality is neither clear nor settled; scholars, advocates, and lawmakers will debate its significance for many years to come. And Cahill’s voice is critical to that debate.
A concern about the marriage equality movement is that it has reinforced the supremacy of marriage and detracted from the LGBT community’s broader agenda of family pluralism. In her stunning new work, Serena Mayeri describes a similar dynamic in the history of another civil rights movement—the movement to eliminate illegitimacy classifications. There, too, important civil rights were secured at the cost of achieving broader, more comprehensive legal reform on behalf of non-conforming families. The parallelism of these two movements is not random or fortuitous. Indeed, Mayeri’s work shows that the movements contributed to the same legacy of marital supremacy and that the loser in these two movements was the same: women, especially poor women and women of color, whose circumstances and desires put them outside the mainstream of traditional marriage.
Case by case, Mayeri takes us through the major litigation of the 1960s and 1970s that challenged illegitimacy classifications in Social Security benefits, inheritance rights, wrongful death claims, public assistance benefits, mandatory paternity disclosure rules, citizenship law, child support law, and employment bans against unmarried women. She shows that the illegitimacy challenges that succeeded (and many did not) did so because courts concluded that it was unfair to visit the sins of unmarried mothers upon their children. It was not that children were to be treated fairly along with their mothers; rather, they were to be rescued from the circumstances their mothers had created.
The difference matters. “[F]ocusing on the harm to (presumptively innocent) children while downgrading or penalizing their parents’ nonmarital (and presumptively not so innocent) relationships,” Mayeri writes, had “destructive symbolic and material consequences for nonmarital families.” (P. 1352.) These consequences included the strengthening the ideology of the marital family, the continued stigmatization of nonmarital sex, and the heightened marginalization of unmarried women, especially poor women. Bottom line: the important civil rights battle to end the status of illegitimacy for children was largely won, but the “larger battle over the relationship between family structure and racial, sexual, and economic justice.” (P. 1351) was lost. Sound familiar?
The failure to secure a larger victory for family non-conformism, Mayeri shows us, was not for lack of trying. In the context of these cases, advocates challenged the infringements to women’s sexual privacy, the explicit distinctions many of these rules made between men and women, and the race and class implications of illegitimacy rules. Mayeri’s meticulous research reveals a relentless (albeit restrained and largely uncoordinated) effort by advocates to defend the character of unmarried mothers, free women from the financial and employment penalties imposed by the state for their sexual choices, and remove them from the heavy shadow of race and class stereotypes.
Alas, courts weren’t interested in the ways in which the challenged rules injured adults. Case by case, courts dodged sex discrimination claims, turned aside sexual privacy arguments, and ignored the race implications of these rules. The shunning of these arguments was so complete, Mayeri argues, that judicial opinions contain virtually no trace of them.
This article exemplifies the huge contribution history can make to family law scholarship. Like the scholarship of Reva Siegel, Ariela Dubler, Cary Franklin, Deborah Dinner and others, Mayeri’s work helps us to better understand the importance of the roads taken and not taken. If our exuberance over the success of the marriage equality movement was insufficiently attentive to the consequences of that success for racial, gender, and economic inequality and for sexual and reproductive freedom, Mayeri shows us that we’ve been down this road before.
Maybe it’s time to try another.
Cite as: Katharine Bartlett, The Low Road
(February 10, 2016) (reviewing Serena Mayeri, Marital Supremacy and the Constitution of the Nonmarital Family
, 103 Calif. L. Rev.
1277 (2015)), https://family.jotwell.com/the-low-road/
Elizabeth F. Emens, Admin
, 103 Geo. L.J.
Who prepares your taxes? Pays your bills? Handles disputes with insurance companies? Orders toner for your home printer? Creates shopping lists? Schedules playdates?
If you do any of these tasks, you are doing what Elizabeth Emens would call “admin.” Not to be confused with “chores,” such as taking out the garbage or doing the dishes, admin involves tasks that we generally associate with office work. Unlike activities that would be considered hobbies, admin isn’t usually done for its own sake, but to get something else done. As Emens succinctly puts it, “admin seems to many people like wasting time, even killing it.” If you’ve ever complained about “wasting time” on the phone or sitting around waiting for a repairperson to arrive, you were complaining about time spent doing admin.
Why analyze a subject as seemingly trivial as admin? Two reasons emerge from Emens’ article. First, a particularly insidious feature of admin is its invisibility. Because it involves a set of undervalued, often-irritating tasks, it’s not something people are generally proud of doing. Making admin salient is important, because doing so reveals just how much time it is stealing from other pursuits—work, sleep, leisure, and education—that most people would agree are more fulfilling or valuable. Currently, there are few legal imperatives to reduce the admin burden on consumers. To the contrary, admin burdens continue to expand despite easy technological fixes. If the reality of admin goes unrecognized, it is difficult to reverse course.
The second reason Emens advances for focusing on admin is its unequal distribution within relationships. The feminist movement has made considerable headway in exposing the “second shift” that women often shoulder in addition to their paid work, which often includes childcare, cooking, cleaning, and other housework. Men increasingly report engaging in these activities, especially childcare. But admin represents yet another category of work that must be done to maintain a home, and the burden of this work is often overlooked. A couple can divide childcare and housework “equally,” and yet the real-time burdens of home management might still be skewed strongly toward one partner or the other, depending on how the admin is divided. Much of the work of admin is work that requires planning rather than reacting: making a shopping list and planning meals, for example, requires a different kind of mental energy than preparing a meal from ingredients already on hand. And much admin is not delegable—it requires knowledge of passwords, access to bank accounts and financial data, or the authority that comes with legal parentage or guardianship—so, unlike childcare or housework, it often must be done by an adult member of the family. There is no place or time set forth in the day to do “admin,” and it never really goes away, for it goes hand in hand with planning the events of one’s life, and, often, of one’s family members.
One of the most important features of admin that Emens identifies is its “stickiness.” Critics of gendered parenting roles have noted that when parental leave is given only to women, the result in families headed by opposite-sex couples is often that women “specialize” in infant care, to the detriment of men’s involvement. By the time the child is a few months old, its mother has become an expert on its care and feeding, and her skills appear to be “naturally” superior to those of the father. The same phenomenon can occur with admin. Because the knowledge required to perform admin effectively is lodged in the mind of the person who performs it, passing this knowledge on to another involves transaction costs. The other person will have to be taught to do it (and might choose to do it differently). The results can be messy and inconvenient—twice-paid bills, conflicting playdates, duplicate cartons of milk in the fridge or no milk at all. The work of creating systems for sharing admin is in itself an “admin” task, and it may seem more efficient—and less detrimental to the relationship—to ignore the inequity of admin rather than create the upheaval required for change.
The article makes an important contribution by exposing admin as a major category of work. But Emens does more than define admin and show how it pervades our lives. She also shows why businesses sometimes have a financial incentive to increase admin and how the law is complicit in admin’s proliferation. She notes, for example, that bills have been introduced in Congress that would have allowed taxpayers to file pre-filled returns for free. The maker of the tax-preparation service TurboTax has spent over $11.5 million lobbying against these bills. The proliferation of admin is a big business.
Admin burdens also flow from state and local governments, which require people to fill out forms for every conceivable type of transaction, often with little or no thought to the burden these forms place on individuals. Emens lauds governmental efforts to create incentives to decrease admin burdens on individuals, offering as an example the Affordable Care Act’s Meaningful Use Program. The program provides monetary bonuses to medical entities? that transfer their files to an Electronic Health Record System, thus preventing the need for patients to fill out new forms every time they see a new healthcare provider.
Admin shows us the many ways in which the law’s refusal to “see” admin leads to unfortunate results, and it offers suggestions for how the law might better recognize the effects of admin on people’s lives. For example, under our current system, consumers are expected to read lengthy contracts for small-scale consumer transactions, even though almost no one actually does. Emens suggests that, instead, lawmakers should protect consumer time by holding consumers responsible only for those terms that do not take longer than a few moments to read.
Emens’s article has changed the way I think about filling out forms, scheduling appointments, and planning for life. These are not tasks that easily fit the categories of market work, housework, or childcare. They are not activities that occur at a particular time, or even in a very predictable way. But they are activities that must be done, and, despite the promise that a “paperless” society would minimize these types of transactions, the digital age seems to have only multiplied them. Admin is everywhere, and Admin both helps us see it and provides some creative ideas about what to do about it.
Henry Maine famously claimed that societies tend to move from status to contract. Martha Ertman has been one of a number of prominent family law scholars who have chronicled, and at appropriate occasions critiqued, the way that family law has increasingly allowed enforceable agreements to modify or supplement the status relations of marriage and parenthood. In Marital Contracting in a Post-Windsor World (and also in her wonderful recent book, Love’s Promises (Beacon Press, 2015)), Ertman shows the intricacies of family law agreements: how they include not only status rules, and some default rules subject to variation by express agreement, but also certain agreements and exchanges that are not enforceable through the courts—but may be supported by social conventions and expectations.
Ertman focuses on three elements of the “pair bond exchange” that occurs with couples: money, housework, and sex. As she explains, couples (married and unmarried, opposite-sex and same-sex) make whatever arrangements they wish about these matters while together. These agreements are made in the shadow of social expectations, market forces, and state rules about which agreements are enforceable and what monetary dispositions will be imposed on spouses at divorce. For example, the decision about which partner stays at home to take care of children often reflects gender expectations in society combined with gender discrimination in wages (when the market pays men more than women for the same work, then it will frequently make better sense economically for the husband/male cohabitant to work rather than the wife/female cohabitant, if one of them needs to be at home full-time). Throughout, the article helpfully grounds its conclusions about pair-bond exchanges in a wide range of sociological studies.
As Ertman points out, states are now more likely to enforce premarital and marital agreements that alter economic obligations of partners at divorce, but remain resistant to enforcing agreements that involve compensation for a spouse’s care or work at home (a number of commentators have pointed out the gender effects of enforcing agreements that may benefit the larger wage-earner, usually the husband, but refusing to enforce agreements that compensate home-makers and care-givers, usually the wife). This resistance is displayed even when the case presents sympathetic facts, like a wife acting well above the usual call of spousal duty in exchange (basically) for a return of monetary rights relinquished earlier in a premarital agreement. Additionally, states generally refuse enforcement of spousal agreements that try to create monetary penalties for sexual infidelity, drug use, or other “bad behaviors,” on the grounds that spouses should not be able to create their own private “fault divorce” regime, in contradiction of the state’s public policies prescribing “no fault divorce” or only limited penalties for marital fault.
Ertman speculates that the conventional understanding of marital exchanges may change with the inclusion of same-sex couples in marriage (the article was written before the Supreme Court decision in Obergefell v. Hodges, but at a time when over half the states had already expanded civil marriage to include same-sex couples). Ertman cited studies that showed that same-sex couples were far more likely to share housework and parental duties roughly equally, spend similar amounts of time at work, and have similar salaries. Also, male same-sex partners were far more likely than other couples to have agreements expressly allowing partners to have sex with others. Ertman considers that it may be as likely that (a) the practices and expectations of same-sex couples (especially those raising children) may change as they assimilate to conventional marriage norms as (b) the understanding of marriage changes to reflect the currently-different practices and expectations of same-sex couples.
In the aftermath of the successful movement to gain same-sex couples the right to marry, and at a time when marriage rates generally are declining and the rates of children born outside of marriage is climbing, our society is clearly rethinking the nature and purpose of marriage and the structure of family life. “Marital Contracting in a Post-Windsor World” helps us think more clearly about why we make the agreements we make with our intimate partners, and what follows from the state’s choice to enforce some of these agreements but not others.
If you are married to a miser who controls the family finances and refuses to give you money outside household expenses, what can you do about it other than get a divorce? What are the consequences of unequal power over property in marriage? In her article The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality, Elizabeth Carter reminds family law scholars and practitioners of the importance of these questions raised so memorably in the 1953 case of McGuire v. McGuire. There, Lydia McGuire sued her husband for maintenance and discovered that there was no legal remedy for her situation. In other words, the law could not compel spouses to be equitable about the family finances and property or give redress to past inequalities in an extant marriage. In the decision denying Lydia McGuire relief, Justice Messmore of the Nebraska Supreme Court found that “[t]he living standards of a family are a matter of concern to the household, and not for the courts to determine…. As long as the home is maintained and the parties are living as husband and wife it may be said that the husband is legally supporting his wife and the purpose of the marriage relation is being carried out.”
Community property states, which historically had been more egalitarian in distributing ownership of marital property during marriage and at dissolution than common law states before their reform of post-dissolution property distribution, still had gendered management rights while marriages were intact. In most extant marriages, management rights or the rights to invest or use property such as paychecks, investments, and even real property had historically been vested in breadwinning husbands. Confronted with the possibility of the passage of the Equal Rights Amendment and the evolving Supreme Court jurisprudence in equal rights, community property states reformed their management rules in the 1960s and 70s to be gender neutral. One would imagine that with the increase in women’s participation in the workforce during this period and the reform of rules to formally bestow equality, de facto management would also become more or less equal. However, these neutral laws that “facially granted the spouses equal management rights over their community property” have largely failed to equalize management rights of that property in fact. (P. 854.) That is to say, the rules did not change the practices in family property management. In her article, Carter reminds us that now some seventy years after the McGuire case, and in spite of the dramatic changes in family and gender roles and the reform in community property states to gender-neutral management rules, the ability to control family resources continues to be demarcated unequally along gender lines in heterosexual marriages.
While it is important that marital partners be allowed to choose the management system that best suits them, the persistence of this inequality should concern lawmakers for a number of reasons. If the state is interested in equalizing gender roles and if it is concerned with the effects of property distribution at divorce, then it ought to be concerned with the property and power distributions during marriage. Even if the law cannot adjudicate conflicts that arise between partners, it can and has changed the rules regarding control of marital property and ought revisit these reform efforts, claims Carter.
To better understand intrafamily inequality, Carter describes six different family allocative systems identified by sociologist Catherine Kenney in her 2006 study. Partners’ choice of allocative frameworks, according to this research, “impacts the quality and stability of their relationship, the wellbeing of their children, and women’s position in the economy and society as a whole.” (P. 857.) For instance, couples using allocative systems that empower one spouse over the other are more prone to dissolution. Of the six allocative models, only two are egalitarian. From Kenney’s research, we learn that families that use inegalitarian allocative systems such as separate money/women’s control or pooled money/women’s control where women control the property are more likely to be lower income, to experience abuse, and to experience child food insecurity. In other word, families that tend to be lower income adopt an allocative system where the wife is the decision maker but this does not reflect financial empowerment for the woman; rather, faced with scarce resources, the burden of making ends meet is placed on the wife. Husbands and children may hand over their paychecks but not before retaining their own spending money that they can use for their leisure activities. Women in these families tend not to retain their own discretionary funds as they are often in the position of trying to stretch whatever they get to meet basic needs.
Families that use separate money/men’s control or pooled money/men’s control tend to be wealthier. Women are often given a housekeeping budget and so have control over enough funds to keep the household running. They may be given some personal money but they rarely exercise control over all family assets. In the highest income families, husbands tend to control the property and income. These families typically follow traditional breadwinner/breadmaker gender roles with wives who do not work.
Finally, the two allocative systems that are more egalitarian are separate money/equal control and pooled money/equal control. Partners who choose separate money/equal control segregate some funds which are beyond the other’s control and pool some funds. Partners who choose to pool their money and share control are the most egalitarian in their management of property. These families tend to have two working partners. Clearly, the choice of allocative system and consequently the inequality of management may vary according to education, formal wage earning, and socio-economic status. But relying on Kenney’s study, Carter notes that 65-71% of married couples with children adopted an allocative system that disadvantaged the wife. (P. 872.)
Carter then traces the attempts at legal reform of community property management rules at the time when divorce and post-divorce property laws in common law states were being reformed. At that time, legislatures in community property states had the potential to radically change the allocative structure of marriage by enacting rules that closed the “money-power gap.” But, in spite of adopting gender-neutral rules, the opportunity was missed and community property wives fared no better than their common law counterparts. Carter asserts that the opportunity was missed because most legislators did not support such radical reform even though they were aware of its possibilities and had the opportunity to enact such rules. Instead, under the guise of neutrality, they continued to maintain the breadwinner’s dominance and the fiction of equal power within marriage. Furthermore, they failed to appreciate the ability of the law to effect substantive change. Surveying the reforms undertaken by the community property states, Carter contends that none of them take equal management of all assets seriously. Moreover, the unwarranted assumption that spouses consult each other before making financial decisions allowed the states to maintain the status quo and did nothing to encourage better communications and joint decision-making by spouses.
What then did the community property states do to reform their laws regarding management? Carter shows that the majority of the states enacted equal management rules that categorized assets and transactions differently allowing for different forms of management. She asserts that: “equal management applies to a shockingly small percentage of a couple’s assets. Nearly every valuable asset is governed by one of the exceptions to the default rule of equal management.” (P. 882.) While non-financial assets such as real property and household furnishing require joinder and the consent of both spouses in their management, many nonfinancial assets like business equity and vehiclescan be managed by one partner because of rules of privity. (P. 882.) Business assets can be held under the exclusive control of one spouse for practical reasons of efficiency and contract. Financial assets like joint transaction accounts may be managed equally but because of applicable banking laws and policies, they do not require any consideration of spousal community property rights during the marriage. (P. 884.) Retirement accounts are community property and the law protects the rights of a divorced spouse to a share of these benefits but the “law specifically prohibits a spouse from participating in the management of a retirement account during an intact marriage.” (P. 886.)
The majority of community property of value can be categorized out of equal management and into the exclusive management of one spouse by making them business assets or through the “practical matter” exception—an exception to the equal management rules that allows one spouse to control property when in relationship with a third party under contract law rules. Carter gives the example of stocks that may be community property but are titled to one spouse. While both spouses may theoretically have equal management, the broker will sell the stock over the signature of the title-bearing spouse. This exception, which seeks to recognize practical issues of privity and contract between the titleholder in the community and a third party, according to the article, “eviscerates the concept of equal management in all meaningful respects.” (P. 882.)
From her discussion of both allocative systems and categorization of assets, it is clear that there is some degree of choice involved in how families structure their management relationship. Carter argues that even though we know that egalitarian allocative systems make for healthier marriages and inegalitarian ones are detrimental to both the marriage and to society, without intervention, most couples fall into well-worn patterns of inegalitarian and gendered management systems with which they may be most familiar. The article relies on studies conducted in the 1990s and the most recent study by Catherine Kenney in 2006 to underscore this point. Carter acknowledges the limits of these studies and it is important that more recent data be gathered before advocating a particular set of legal reforms that might encourage more egalitarian management. Certainly, there are a great many more breadwinner wives today than there were twenty years ago and their ability to control their earnings must have an effect on their autonomy and power in the family. Feminist economists, who from the mid-1990s have argued against idealized notions of family, posited this connection between property owning and bargaining power. Challenging the view that families bargained cooperatively, they suggested that such models of altruism and harmony assumed an agreement regarding decisionmaking about allocation of family resources that did not exist–acquiescence was not in their view agreement. Development economists in particular have argued that many families do not actually cooperate with regards to property allocation and that the ability to control property improves the bargaining position of family members particularly women. It stands to reason that increases in wage labor and property ownership by women would change the allocative preferences in the household and newer data would better enable us to judge whether family bargaining remains unfair to women. What we do know is that in marital families, 53% of families had both spouses earning. In such dual earner families where women earned less than their spouse, women’s contributed 37% of the family income. In 19% of families, only the husband had earnings, in 6.8% of families, only the wife had earnings and 15.5% of families had no earners at all. In addition, 28% of women earned more than their husbands—a percentage that has grown significantly since the 1970s. Carter suggests that despite the decreasing gap in earnings and household contribution, there remains power gap in management of family assets that requires examination.
Carter’s article contributes to our understanding of power and control of property within marriage and their effects on the wellbeing of both the marital relationship and society. She demonstrates one partner’s ongoing dominance can potentially do substantial harm to the other’s economic prospects well before the marriage begins to fail. And in fact, she argues that one partner’s dominance can be an indication of a troubled marriage. Egalitarian management of assets, on the other hand, indicates stronger and more durable marriages. Rather than primarily focusing on the distribution of property when the marriage dissolves, Carter’s work suggests that legal reform that reduces the money-power gap between partners may do much to preserve marriages.
Who’s afraid of the welfare queen? Apparently everyone. These days, the average American sees the welfare queen as a key threat to social order; the conservative movement’s battle for hearts and minds decisively has been won. Numerous scholars, from Michele Gilman to Kaaryn Gustafson, have attempted to combat prevailing views of the welfare queen, providing us with an expansive, rich understanding of the ways in which the construct continues to shape contemporary poverty debates about poor single mothers. Ann Cammett, in her recent article recent Deadbeat Dads and Welfare Queens: How Metaphor Shapes Poverty Law, takes the conversation in a new, exciting direction; she demonstrates how the discursive constructs used to pathologize poor mothers have morphed to implicate us all.
Family law scholars know that discursive inquiries are an invaluable resource, particularly when gender constructs play a central role in the way legal claims are articulated in a given domain. However, thus far, family law scholars have focused on how ideal tropes and stories of perfect, heroic motherhood are used by the State to police women and families. Recent tropes of ideal motherhood include “the Soccer Mom” and “the Tiger Mom.” These motherhood constructs give form to middle class anxieties about the competing and conflicting responsibilities imposed on women—propositions that make ideal motherhood elusive.
Instead of focusing on the ideal mother, Cammett turns to a trope of stigmatized motherhood: the welfare queen. Her work reveals the construct’s role in shaping the identities of poor women, as well as its role in shaping the self-perception of a far larger group of citizens, ones not normally associated with this construct. In this endeavor, Cammett expertly weaves together history and psychology to reveal a disturbing truth: The welfare queen construct exerts disciplinary power over us all, regardless of gender and class position.
Cammett begins by showing how constructs deployed in policy discussions to describe poor mothers reduce empathy and cultivate disinterest in, and resentment of, the poor. Instead of examining the structural conditions that produce poverty, we create villains like the welfare queen—a woman who irresponsibly bears children and has little interest in anything besides public consumption. Villainized figures like the welfare queen become easy targets in a neo-liberal state that emphasizes personal responsibility. As Cammett explains, the result is punitive policies that punish poor parents for their “irresponsible” choices, rather than an exploration of the material effects these policies have on poor children or an examination of the structural conditions that make it difficult for poor parents to support their children. According to Cammett, these realities include the economic shock of post-industrialization in urban areas; shrinking blue-collar employment; white flight from urban centers, and the emergence of mass criminalization. Importantly, these conditions affect a large swath of poor citizens, but the welfare queen stalls analysis of how to address these fundamental broad-scale social problems.
Following in the tradition of scholars like Ange-Marie Hancock and Dorothy Roberts, Cammett shows how the welfare queen construct has evolved through different historical periods to shape the public’s views about poor mothers. Her analysis is stunning. As she shows, the construct endures even though traditional welfare has been dismantled and poor mothers are subject to extremely punitive “Temporary Assistance to Needy Families” programs under the 1996 Personal Responsibility and Work Opportunity Reconciliation Act. Although the policy problem that created the welfare queen has withered away, the construct continues to shape policy debates.
Cammett’s work is also notable for her insightful description of the role implicit bias plays stigmatizing the welfare queen in the post racial era. As she explains, although it is never stated explicitly, the welfare queen is always black by implication.In this way, politicians can tap into residual racial bias to further galvanize anger and frustration against poor women, a result that compromises the economic wellbeing of poor whites, who constitute the largest share of welfare recipients. In this regard, Cammett’s work is a primer on one of the key ways racial bias operates in policy debates in the post racial era—by invoking an already racialized figure to cue racial resentment and anger. As Cammett shows, even when the construct is not invoked explicitly, the welfare queen is the metaphoric backdrop that structures our understanding of poor women and their families.
Cammett’s most significant contribution in this piece is her description of how the welfare queen construct disciplines men, and its corollary implications for fatherhood and masculinity. As she details, the welfare queen has an equally villanized partner, the “deadbeat dad,” and this construct is used to punish poor men for their inability to provide economically for their children. Originally a construct used to sanction middle class fathers who failed to care for children after divorce, the deadbeat dad has taken on a new role in more recent policy discussions. In the era of the welfare queen, the construct changed to villanize men that “refused” to take on a breadwinner role because of moral and cultural dysfunction. The State responded to this new deadbeat dad by chasing down poor fathers and forcing them to honor their child support obligations. However, this approach ignores the fact of widespread underemployment and unemployment in poor communities because of structural changes in the job market. On this account, the deadbead dad construct ensures that there is no “meaningful political and policy discourse about what distinguishes deadbeat [Dads] from “deadbroke” [Dads]—those who simply don’t have the ability to pay.” Moreover, in an era of mass incarceration, child support enforcement laws can sometimes result in jail time for poor deadbroke fathers, ironically making it more difficult for them to discharge their support obligations.
Finally, Cammett’s article explores one ironic detail of welfare policy that should engage all family law scholars and feminists, even those not specifically interested in anti-poverty initiatives. She shows how the State works out the conflicting obligations it imposes on all working mothers through the body of the welfare queen. Welfare mothers cannot be ideal workers and ideal mothers simultaneously because the ideal worker, by definition, prioritizes wage labor over family. By contrast, the ideal mother prioritizes family over wage labor. The state repeatedly rehearses and naturalizes this double bind by villainizing poor mothers and low-income mothers. However, the same critiques are made in muted form of all working mothers today.
Cammett’s work is essential reading because it allows us to move beyond wordless anxiety about the welfare queen to an articulate analysis of the stereotypes and punitive programs that continue to be directed at poor women. Her work is key to the development of smarter anti-poverty programs. However, her work is also important because it provides a sneak preview of critiques that can be launched at all mothers or, alternatively, at the poor more generally. She reminds us that the State works out its policy frustrations on the most vulnerable before mobilizing them more broadly. She teaches us that we should not be afraid of the welfare queen, rather we should be afraid for the poor women trapped by this construct. She reminds us that we should continually monitor and critically assess the State’s depiction of and response to the most needy among us.
Family law scholarship features a significant amount of normative work arguing for greater recognition of diverse family forms. Careful descriptive work analyzing how such families gain recognition is far less common. Elizabeth Scott and Robert Scott’s insightful new article, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, forthcoming in the Columbia Law Review, critically mines this second vein. Scott and Scott shift the focus away from the question of why we should provide greater recognition to more family forms and toward the question of how the state comes to accept and recognize novel family arrangements.
Beginning from the premise that families with “the qualities of commitment, durability, and emotional and financial interdependence deserve legal recognition and support,” Scott and Scott elaborate an informal model by which new family forms demonstrate these qualities and gain state recognition.
First, as individuals engage in novel family formation, they face uncertainty over whether their family will in fact be characterized by emotional and economic interdependence. In this stage, family members themselves negotiate and define their roles and responsibilities. Next, because these novel families face social isolation, they must find other similar families to organize into what Scott and Scott describe as a “normative community.” With shared values and goals, families mobilize around a coherent identity. The public, in turn, begins to accept these families and to recognize their productive functions. Finally, these families face regulatory uncertainty as the state seeks to verify that the families function in ways that merit government recognition. In what Scott and Scott describe as an iterative process, the state extends rights and benefits to families in an incremental fashion that allows the government to verify the family’s bona fides. Because “qualities that characterize successful family groups . . . are not readily observable” and “are difficult to evaluate in the absence of express promises or reliable proxies,” it is critical that advocates—often lawyers—persuade the public and state decision makers that these families meet society’s expectations and serve the state’s regulatory objectives.
Scott and Scott test the explanatory power of their model against the divergent paths of same-sex and different-sex unmarried, cohabiting couples. Mapping these couples onto the model brings into view crucial differences that help to explain why LGBT advocacy successfully marched toward rights and recognition—and ultimately marriage—while different-sex cohabitants have been largely left behind.
The LGBT experience highlights the significance of the iterative process that Scott and Scott identify. Viewing the recognition of same-sex couples through Scott and Scott’s model suggests why and how domestic partnership led to marriage, rather than remained a stand-alone alternative to marriage. Same-sex couples’ success depended in part on their ability to map domestic partnership onto marital norms. Advocates convinced decision makers that domestic partners were like married couples and would exhibit the same levels of commitment. Slowly, government actors elaborated domestic partnership at the local and state levels. Ultimately, the recognition regime grew to replicate the rights and benefits of marriage, making the marital distinction appear arbitrary and discriminatory. Through Scott and Scott’s lens, domestic partnership’s role as a stepping stone to same-sex marriage has more to do with the success of same-sex couples’ campaign for family recognition than with the failure of a progressive coalition to marginalize marriage.
The model also helps explain the lack of (large scale) recognition of what Scott and Scott term “informally cohabiting couples.” As they demonstrate, the state is pushed to accommodate novel families when those families effectively mobilize, forming a coherent identity and persuading outsiders that their demands are legitimate. In this regard, the story of unmarried different-sex cohabitants stands in stark contrast to that of same-sex couples. Many different-sex cohabitants have little reason to mobilize for recognition; they either do not seek such recognition or can attain it through marriage. Accordingly, Scott and Scott conclude that the response to the exclusion of cohabitants from legal protections “has been relatively passive.”
The experience of different-sex couples with domestic partnership regimes underscores the consequences of this passivity. Some domestic partnership regimes that emerged in the 1980s and 1990s included both same-sex and different-sex cohabitants. While conventional wisdom holds that different-sex and same-sex couples were united by their shared nonmarital status, a careful review of the history suggests important points of differentiation. Some advocates for same-sex couples often distinguished their constituents from unmarried different-sex couples. In domestic partnership advocacy in California, for example, advocates at times framed same-sex couples as like married different-sex couples—willing to accept financial and emotional obligations—and unlike unmarried different-sex couples—who were seen to resist marriage’s responsibilities.
Moreover, while same-sex couples used domestic partnership to signal their marriage-like commitment, different-sex couples largely ignored this signaling feature. For example, when in 1996 San Francisco City Hall hosted a mass domestic partnership ceremony officiated by the mayor, only one different-sex couple participated, even though the law covered both same-sex and different-sex couples. “We’ve thought about [getting married],” the couple commented, “but one of us always chickens out.” For this different-sex couple, domestic partnership signaled not an acceptance of marriage’s obligations, but rather the affirmative avoidance of those obligations. This, Scott and Scott explain, is unlikely to form the normative basis on which to build a successful family recognition effort.
Through this lens, the more recent retraction of domestic partnership recognition—as same-sex marriage gains hold—appears to be less a story of conservative retrenchment and more the byproduct of same-sex couples’ successful drive for recognition. As alternative statuses incrementally came to replicate marriage, they appeared increasingly unnecessary if same-sex couples had access to marriage. Different-sex couples, who are eligible to marry and who register for comprehensive nonmarital relationship recognition in relatively low numbers, have had little incentive to preserve these nonmarital forms of recognition.
Scott and Scott also posit that the process of gaining recognition itself may shape shared understandings of family and marriage. Again, the movement on behalf of same-sex couples has much to offer. To the extent LGBT advocates emphasized same-sex couples’ similarity to married couples to gain rights and recognition, they focused on particular attributes (mutual emotional support and financial interdependence) and sidelined others (gender differentiation and biological reproduction). Through this process, not only did same-sex couples obtain rights, but they also contributed to contemporary understandings of marriage that may in turn influence the ability of other families to gain recognition. In other words, “the template that marriage provides” subtly changes over time, partly in response to claims made on it by novel families seeking to convince the public and the state that they deserve recognition.
With this in mind, Scott and Scott explain how families’ proximity to marriage helps account for their success in gaining public acceptance and state recognition. As they acknowledge, “families based on marriage likely will continue to enjoy broad public support and a privileged legal status, and to be viewed as embodying qualities associated with satisfactory family functioning.” Therefore, Scott and Scott “explore under what conditions and through what mechanisms other family categories that embody those qualities could attain a similar status.” In this way, their account is, subtly, also an account of marital supremacy. Even efforts once thought to unsettle marriage, such as the campaign on behalf of same-sex couples, operated in the shadow of marriage and ultimately aspired to marriage.
Yet marriage is not the goal across all of the contexts that Scott and Scott explore. They conclude their fascinating article by considering families that map less neatly onto the marital model: multigenerational families and voluntary kin groups. While we may understand the successes and failures of recognition efforts on behalf of same-sex couples, different-sex cohabitants, and polygamous families in light of such families’ relationship to marriage, how might we adapt Scott and Scott’s model to families that are not based on conjugality and to families that may seek rights and recognition that fall well short of marital status? Future work might profitably explore how the state comes to accord—or not accord—rights and recognition to these families.
In the end, Scott and Scott’s article offers a critical and refreshing intervention. While not framed as a corrective, the piece pushes against the common impulse to view the lack of more pluralistic family recognition as a failure in advocacy. Scott and Scott instead show us that the family law regime emerges from complex processes of social and legal change in which families, advocates, the public, and the state all play critical roles. The answers they supply to why and how we come to recognize new family forms should bear on family law scholars’ assessments of changes in family regulation and should influence prescriptive claims animated by those assessments.
Cite as: Douglas NeJaime, How Families Gain Recognition
(September 1, 2015) (reviewing Elizabeth S. Scott & Robert E. Scott, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships
, 115 Colum. L. Rev
. 293 (2015)), https://family.jotwell.com/how-families-gain-recognition/
The presumption of legitimacy is one of Euro-American family law’s most venerable doctrines. Under this well-known rule, a woman’s husband is presumed to be the father of any child conceived during marriage. Throughout the ages, the substance of the doctrine has been remarkably consistent: With relatively modest changes, it can be traced from Roman law through Canon Law, Civil Law, and the Common Law—and until recently, into the parentage statutes of a majority of U.S. states. But, as Susan Appleton correctly observed nine years ago, this ancient rule is now at a crossroads. On the one hand, it has been eroded by the rise of genetic paternity tests and the demise of laws that discriminate against children born out of wedlock. On the other hand, it has been given a second wind by extension to same-sex married couples and couples who use ART, who vigorously guard its value as a protection for their children. As a result, we are now at a particularly useful vantage point to review the promises of the presumption itself.
A new article shines light on the presumption and its many meanings. As Andrew Counter illustrates in Always Uncertain, the ideological underpinnings and consequences of the presumption have varied “enormously” in different places and times.
Counter’s analysis of the cultural and legal development of the presumption of legitimacy focuses primarily on his readings of two texts—Guy de Maupassant’s short story Monsieur Parent (1885) and the record of Michael H. v. Gerald D. (1989). In Monsieur Parent, the eponymous character learns that his wife Henriette has been unfaithful with family friend Limousin, and that Georges, his only child, may be the fruit of that affair. After the liaison is discovered, Monsieur Parent turns Henriette and Georges out of the house, but is haunted by the realization that no one will ever know whether Georges was his biological child. In Michael H. v. Gerald D., Victoria D. was born to Carole D., who was married to Gerald D. However, Carole had an extramarital partner, Michael H., who obtained blood tests indicating that he was almost certainly the child’s biological father. Michael claimed that California’s presumption of legitimacy was unconstitutional, but his claim was rejected by the Supreme Court.
Counter’s article begins by deftly situating each of these texts within the broader cultural and legal contexts from which they emerged. As he explains, the presumption of legitimacy was codified into French law in Article 312 of the French Civil Code of 1804. Because the presumption was intended to eliminate the inherent uncertainty in determining a child’s father, it was “extremely difficult to rebut.” (P. 68.) In order to successfully challenge the paternity of a child born during marriage, a litigant would have to show “the impossibility of cohabitation between the spouses for the entire period,” “that the husband had been rendered impotent by an accident after the marriage,” or “that the wife had committed adultery … and had concealed … the birth from the husband and had been separated from him at the time.” (P. 68.)
In California, meanwhile, the presumption of legitimacy was codified in 1872. In addition to the standard exceptions for the impossibility of cohabitation and the husband’s impotence, California courts initially allowed the presumption to be rebutted upon a showing that “the child is of a race or color such that it could not have been conceived by the husband.” (P. 69.) As Counter wryly notes, this exception was “doubtless undergirded by motives less noble than a mere judicial love of truth.” (P. 69.) But it also indicated that California courts were willing “to admit as evidence what was, so to speak, evident”—“to permit rebuttal of the presumption where it was manifestly inaccurate.” (P. 69.)
Against this legal backdrop, Counter presents two major historical shifts in the presumption’s premises. First, Counter notes that when France’s Article 312 was codified, it was not justified by the same concerns that had been invoked in an earlier era to defend similar measures in Roman law: It was presented as a measure to protect a child’s right to his father’s support, rather than a measure to safeguard a father’s property rights to his legal offspring. Drawing on Durkheim’s analysis, Counter explains that, during this period, “the protection extended to the child here is understood primarily as protection from repudiation by… the presumptive father … hence the state’s primary interest is seen to be to force its father and mother to acknowledge it.” (P. 70.)
Next, Counter observes that in California the emergence of early testing based on blood types in the 1960s allowed litigants to exclude at least some men as possible fathers. Interestingly, however, California courts immediately began rejecting this evidence as a threat to the integrity of married families. By the late 1960s, moreover, these courts began to repudiate earlier dicta that had allowed proof of racial differences to rebut the presumption in particular cases. In a period of only ten years, the courts had transformed a doctrine of legal epistemology into a doctrine of “family integrity”: Instead of serving as a rule of evidence that could be rebutted, the presumption now operated as an “‘overriding social policy’ whereby the legislature preferred children to be raised by married couples”—no longer a procedural substitute for proof, but now a “substantive rule of law.” (P. 70.)
While these historical insights are significant, they only scratch the surface of what Counter’s article offers. Above all, Always Uncertain provides the sheer pleasure of close readings in law and literature—his comparisons of the principal characters in Monsieur Parent and Michael H. are unforgettable. Throughout the article, Counter deploys familiar tropes from both literary and historical criticisms of legal texts, but he never allows himself, or the reader, to get too comfortable within them.
For example, Counter’s analysis of the presumption’s historical development in both France and California casts doubt on the accuracy of Justice Scalia’s own historical analysis in Michael H., which was critical to his rejection of Michael H.’s constitutional claims. When Justice Scalia turns to the historical record, he reports: “we have found nothing in the older sources … addressing specifically the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man.” (P. 77.) In a “slippery footnote,” Justice Scalia treats this absence of authority as a “specific tradition [which] unqualifiedly denies protection to such a parent”—a claim that Counter views as “far-fetched for a number of reasons.” (P. 77.) First, paternity could not be proven in the nineteenth century; second, adultery was a crime in most jurisdictions; third, nineteenth century jurists took an “unsentimental view of paternity,” regarding it as “a set of, mostly financial, duties.” (P. 77.) “From a legal point of view,” Counter concludes, “Michael H. … had simply never existed before.” (P. 77.)
For a moment, Counter’s analysis seems reminiscent of historical critiques of judicial opinions—most notably Anne Goldstein’s famous analysis of Justice White’s opinion in Bowers v. Hardwick. But rather than dwelling too long on this historical payoff, Counter briskly turns back to his literary analysis: After noting that “Michael H. … had simply never existed before,” he observes that “what the law cannot imagine is not necessarily unimaginable to literature.” (P. 77.) In a remarkable move, Counter explains that, in Monsieur Parent, the character of Limousin offers an anticipatory vision of Michael H.—a mode of family life that Justice Scalia was unwilling to entertain, one hundred years later. As Counter explains, Limousin represents “an accomplice to adultery … who … comes forward to raise (what he takes to be) his illegitimate child.” (P. 78.)
Here, too, Counter manages to avoid analytical clichés, while squeezing astonishing insights from his legal and literary texts: Rather than suggesting that literature always liberates—by imagining what the law cannot afford to—he observes the ways in which both texts offer “conservative” accounts of what happens when husbands and wives engage in “unconventional behavior.” (P. 78.) Moreover, he reasons, both texts imply that such consequences are “inevitable … where female sexual liberty is not restrained.” (P. 79.) While de Maupassant brands Henriette “a harridan, a hypocrite, and a … tramp,” (P. 79.) Justice Scalia is more subtle in his critique, noting that Carole D. is “an international model”—a woman who has brought her daughter to live not only with her husband Gerald but also with her adulterous lover Michael and with “yet another man” as well. (P. 79.) And finally, Counter notes that Gerald D. represents a figure that even Maupassant could not have imagined—“the happy cuckold, the husband who is willing knowingly to élever les enfants des autres (“raise the children of others”).” (P. 79-80.) In Counter’s account, Gerald D. signifies the arrival of a man who understands paternity as “a fundamentally affective experience in which biological fact is incidental (or, much as it is for California law, “irrelevant”).” (P. 80.)
In his closing remarks, Counter leaves no stone unturned in his criticism of the presumption’s operation in both literature and law, then and now. While he admits that “the meaning of the presumption may have changed entirely between 1885 and 1989,” he suggests that the two texts reveal “the same abiding possibility: that the family itself might, or indeed must, be the site of an exclusion, that it is predicated … on ‘bolted doors’ and the ‘jealous possession of happiness.’” (P. 80.) In both narratives, he notes, “the person who finds himself the victim of this exclusion—Michael H., M. Parent—is rendered abject.” (P. 80.) Although M. Parent initially turned out his wife and legal child, the story later describes him “as an outlaw, living une vie de forçat (“a convict’s life”) and following his hated wife around like a voleur (“thief”) … the outsider who threatens the [new family’s] tranquil enjoyment.” (P. 81.) In Counter’s view, “These moments exemplify that chilling familialist tendency to attribute perversity to those who have been excluded from the ‘blessings’ of family life, even against their will” (P. 81)—and more fundamentally, “the power of bourgeois familialism to subvert subversion, to define the terms even of transgressive desire itself.” (P. 82.) After all, Counter laments, Michael H. wanted nothing more than “the right to act as a father to his biological offspring.” (P. 82.) Marking out the limits of the presumption’s premises in both narratives, Counter concludes: “It is surely a bad day indeed for non-conformity when such a desire can be considered non-conformist; though worse still, of course, when the right not to conform is found not even to stretch that far.” (P. 82.)