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Biological and Social Approaches to the LGBT Family

Michael Boucai, Is Assisted Reproduction an LGBT Right?, 2016 Wisc. L. Rev. 1065 (2017).

For decades, same-sex couples have made claims—in both politics and law—to parenthood. Many of these claims relate to the regulation of assisted reproductive technologies (ART), as same-sex couples pursue modes of family formation made possible by ART and seek legal recognition of the parental ties that grow out of their use of ART. These claims have only grown more potent in the wake of Obergefell v. Hodges, the 2015 Supreme Court decision granting same-sex couples access to marriage on both due process and equal protection grounds. The centrality of ART in contemporary claims to LGBT equality leads Michael Boucai to ask in a timely and fascinating new article, Is Assisted Procreation an LGBT Right?

In resisting the turn to ART as an LGBT political project, Boucai contrasts the primacy of biogenetic ties in organizing around ART with the role of nonbiological forms of kinship in the history and ethics of LGBT life. ART’s “appeal to American society’s pervasive biogeneticism, its deep-seated faith in the priority and superiority of biogenetic forms of relationship and identity,” Boucai asserts, runs against the LGBT community’s longstanding commitment to “a social and functionalist … conception of familial relationships.”

To illustrate the significance of social kinship in the LGBT community, Boucai points to work around adoption. As he notes, LGBT people fought for decades to win rights to form foster and adoptive parent-child bonds. “LGBT people’s uncommonly warm embrace of adoption,” Boucai argues, should not be interpreted as “mere acquiescence to circumstance,” but constitutes “queer resistance, both personal and political, to the ideology of biogenetic kinship.”

In contrast, Boucai argues, same-sex couples’ claims on ART shore up the importance of biogenetic kinship. Of course, a same-sex couple will ordinarily feature at least one parent without a legally cognizable biological tie to the child. But, as Boucai notes, the choice of gamete donors often reflects an interest in replicating the nonbiological parent’s physical features and racial or ethnic identity. Moreover, some may even enlist relatives to serve as gamete donors or gestational surrogates. Same-sex couples, through this lens, seek to replicate the biological family. To be clear, Boucai aims his criticism less at the personal pursuits of LGBT people and more at the biological focus “in the politics of LGBT parenthood.”

Boucai’s intervention alerts us to the ways in which claims on ART can reproduce normative models of family that historically have justified the exclusion of LGBT people. Reflecting critiques of the push for same-sex marriage, Boucai warns of the assimilationist thrust of LGBT arguments for biogenetic parentage. Yet, at the same time, other work—as Boucai acknowledges—identifies the capacity of ART to disrupt the biological, gender-differentiated, and heterosexual family. It is this doubleness, which runs throughout Boucai’s article, that makes ART so fascinating and yet so fraught.

Same-sex couples, unlike many of their different-sex counterparts, use ART in ways that produce nonbiological parent-child bonds and lead to parental recognition without reference to biological ties. Viewed from this perspective, Boucai’s attention to adoption as a model of social parenthood can be seen as connected to fights over ART. For same-sex couples, ART represents a pathway not only to biological but also to nonbiological parent-child relationships. Just as same-sex couples staked out the primacy of social, over biological, bonds in their push for adoption, same-sex couples again ask law to credit social bonds over biological connections in the domain of ART.

Given the complicated relationship between LGBT claims on ART and the historically rich LGBT ethic of social parenthood, how might the LGBT community navigate the terrain of ART, family formation, and parenthood? Boucai’s critical intervention points in two related directions.

On one hand, Boucai highlights the need to build out claims in the adoption arena. LGBT people, Boucai shows, have distinctive investments in the adoption regime. As Williams Institute research has shown, same-sex couples are much more likely than their different-sex counterparts to be raising foster or adopted children, and LGBT youth are much more likely than their non-LGBT counterparts to enter the foster care system.1 In this way, LGBT individuals are overrepresented both in the community of adoptive parents and in the pool of children available for adoption. These features lead Boucai to urge the LGBT community to devote greater attention to adoption law and policy—and specifically to the vindication of social parenthood models. Drawing on Elizabeth Bartholet’s foundational work, Boucai shows how the adoption regime is regulated in ways that continue to express skepticism of nonbiological bonds. Embracing a functional model of family more fully could reshape the adoption regime in ways that render it not only more normatively attractive but also more effective in promoting children’s welfare.

On the other hand, Boucai urges the LGBT community to pull back from some claims in conflicts over ART. Claims that sound in the fundamental right to procreate, Boucai warns, reiterate the centrality of the traditional, biogenetic family and marginalize the adoptive family. To be sure, some proponents of the ART-focused fundamental right to procreate argue that the right should include the creation of nonbiological parent-child relationships. But it is easy to see how these arguments may situate such rights as merely derivative of rights to parental recognition based on biological connection.

Boucai also expresses skepticism about equality-based arguments in the ART arena. Certainly, laws that restrict access to ART may disproportionately affect LGBT people. But, for Boucai, equality-based challenges to these laws falter on both doctrinal and normative grounds. Not only do these arguments face the ordinary obstacles that disparate-impact analysis currently entails; but, according to Boucai, they also prioritize biogenetic parenthood over other kinds of parental bonds.

Here, though, is where the doubleness of ART is particularly illuminating. Perhaps equality-based claims offer more transformative potential than Boucai admits. By attending to the law’s social meaning, rather than focusing simply on questions of classification or discriminatory purpose, courts might appreciate the harms inflicted by a parentage regime anchored in biological connection. For same-sex couples to be treated as fully belonging, the law must recognize the nonbiological parental ties that LGBT people form through ART. Accordingly, claims to equality entail a challenge to the primacy of biogenetic ties. On this view, same-sex couples using ART have the capacity to remake the law and politics of parenthood, even as in their personal lives they may reiterate the salience of biological ties.

  1. See Gary J. Gates, Williams Inst., LGBT Parenting in the United States 1 (2013); Bianca D.M. Wilson et al., Williams Inst., Sexual and Gender Minority Youth in Los Angeles Foster Care 2 (2014). []
Cite as: Douglas NeJaime, Biological and Social Approaches to the LGBT Family, JOTWELL (April 26, 2017) (reviewing Michael Boucai, Is Assisted Reproduction an LGBT Right?, 2016 Wisc. L. Rev. 1065 (2017)),

When Less is More

Why are employees who sue to obtain workplace leave under the Family Medical Leave Act of 1993 (FMLA) almost twice as likely to win their cases as those who bring discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII)? The title of Kate Webber’s intriguing article reflects an intuition many feminists and family law scholars already bring to the table: courts find women more sympathetic when they make claims that conform to their appropriate gender roles (as they do when they ask for family leaves) than when they challenge those norms in the workplace (as they do when they make a claim that the workplace is discriminatory). Webber unpacks this intuition, first by identifying differences in the statutory schemes that might help to explain the gap in success rates between the two statutes, and then by examining the ways in which the content of the legal protections each statute provides might understandably trigger different ideological and cognitive responses by judges. The analysis is both cautious and compelling. It is also surprisingly optimistic, concluding that family leave laws provide a legislative model that may actually be more effective than Title VII in reducing institutional workplace inequality.

Other scholars have noted the differences between Title VII and the FMLA.1 The most important of these differences for Webber’s purposes is that the FMLA, though motivated by the desire to relieve work-family conflicts especially among women, is a gender-neutral employee benefit, much like minimum wage laws and OSHA regulation. To win an FMLA claim, a claimant need only show that she was entitled to the benefit and did not get it. In contrast, Title VII creates a civil right available on the basis of membership in a protected class. A Title VII claimant must show both that she experienced an adverse employment action and that this action was caused or motivated by the claimant’s sex, race, religion, or other protected characteristic. The difference is structural: the former defines the status quo; the latter challenges it.

Webber explores various attitudinal and strategic models of judicial behavior as well as theories of cultural cognition, suggesting that while these theories do not conclusively prove judicial bias, they help to explain the different win rates under the two statutes. Building on the insights of Katie Eyer, Joan Williams, and others, Webber explains that the FMLA does not threaten existing meritocratic norms and employer prerogatives in the workplace and instead appeals to a broader range of family values. As a result, she argues, the FMLA is less challenging to judicial worldviews than Title VII and thus generates less ideological and psychological resistance. Deciding in favor of an FMLA claimant, Webber explains, requires only that one believe that the employer denied a benefit defined by that statute. Deciding in favor of a Title VII claimant requires acceptance of an altogether more contentious narrative, built on suppositions that certain groups are especially vulnerable in the workplace; that protecting those vulnerable people does not constitute favoritism; and that discrimination by people and institutions is not rare and is not always conscious or rooted in animus. Tellingly, Webber points out, in those FMLA cases based on discriminatory retaliation for filing a claim—cases more like Title VII claims than FMLA interference claims in what it asks decisionmakers to believe—the win rate goes down.

From a Title VII standpoint, Webber’s analysis of the ideological and psychological barriers to determinations of discrimination is discouraging, for these barriers are not easily overcome. Drawing on the work of Catherine Albiston, however, Webber finds a silver lining: the greater potential of the FMLA “direct benefit” model to weaken aspects of institutional workplace inequality. FMLA claims are not only more winnable, Webber argues, but the FMLA more radically abandons the norm of full-time work availability, which Title VII leaves intact, and substitutes a norm that requires workplace adaptation to some family circumstances. For Webber, the relative success of FMLA cases should encourage legislators to press for more family-friendly, gender-neutral statutory benefits as an alternative to anti-discrimination laws based on “comparative status based equity” (p. 180). She favors, in particular, the Pregnant Workers’ Fairness Act, which would require employers to provide reasonable accommodations to pregnant workers as long as these accommodations do not impose an undue hardship on the employer.

Families are More Popular Than Feminism has the quality of a picture that conveys two alternative images—like the famous Rubin vase/profile illusion.2 For dominance feminists, perhaps enticed to read the article by its title, the piece confirms the shortcomings of a judicial system that cannot reliably recognize the workplace discrimination that women face unless they present themselves as caretakers. For those with fewer preconceptions, the article is a hopeful account of a gender-neutral wedge that might have the leverage to change workplace institutions. Both seem plausible to me—different sides of the same coin, as it were. Webber acknowledges, correctly, that a benefits approach will fall short of the fuller range of civil rights protections that Title VII promises, and she does not ask us to abandon these protections. But in explaining what works about family leave laws, Webber reminds us that sometimes less is more.

  1. See, e.g., Katharine B. Silbaugh, Is the Work-Family Conflict Pathological or Normal Under the FMLA? The Potential of the FMLA to Cover Ordinary Work-Family Conflicts, 15 Wash. U. J.L. & Pol’y 193 (2004); Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012). []
  2. See []
Cite as: Katharine Bartlett, When Less is More, JOTWELL (March 27, 2017) (reviewing Kate Webber, Families are More Popular Than Feminism: Exploring the Greater Judicial Success of Family and Medical Leave Laws, 32 Colum. J. Gender & Law 145 (2016)),

Flirting with Federal Family Law

Courtney G. Joslin, Federalism and Family Status, 90 Indiana L. J. 787 (2015).

Should the definition of “marriage” be federal? What about the definitions of “parent” and “child”? Courtney Joslin’s carefully written article, Federalism and Family Status, traces the history of how the law has treated family status determinations and sets forth a framework, grounded in the federalism literature, on when family status should be determined on a state-by-state basis or as a federal matter.

Joslin’s article was written before two major events that have changed the family law landscape—the Supreme Court’s 2015 decision in Obergefell v. Hodges and the presidential election of 2016. In Obergefell, the Supreme Court struck down state bans on same-sex marriage, thus essentially federalizing the definition of marriage in one important respect. In the election, Donald J. Trump prevailed, and with him came fears that he will to appoint conservative justices who might overturn Obergefell. At this particular historical moment, Joslin’s article is worth rereading with an eye to applying her theory to this drastically changed landscape.

Joslin’s article begins by debunking the theory that all family status determinations are made at the state level. She acknowledges the extant scholarship on “federal family law” by scholars such as Jill Hasday, Kristin Collins, and Reva Siegel that has already dismantled the notion that all family regulation is state-based, but then identifies one “core” of family law that most scholars still assume cannot be federal—family status determinations. These determinations—who is married, who is a parent—are still widely understood to be governed by state law. Joslin deftly shows how the federal government has nevertheless affected the law of family status determination in several ways. First, Congress has often crafted its own definition of “child” for determining eligibility for federal programs such as Social Security regardless of how a “child” would be defined by state family law. Likewise, federal courts have also adopted independent federal definitions of family status when they interpret federal law. In both instances, the justification has usually been that uniformity is necessary to achieve fairness in the implementation of the federal program or benefit.

So far, the instances Joslin identifies seem completely understandable—in order to administer a federal scheme, the government must have eligibility requirements, and these requirements should not vary depending on the state of one’s residence or domicile. She observes, however, that Congress has also been remarkably active in its attempts to coerce states into adopting family status rules that conform to federal ideals, even where no benefits scheme is involved. For example, Congress has conditioned state receipt of welfare funds on a state’s willingness to assign legal parentage to genetic fathers of nonmarital children, often through the creation and adoption of voluntary acknowledgment of paternity (VAP) programs. On this account, many of the definitions of parentage that appear to be voluntarily adopted by states have actually been shaped by federal intervention.

Once Joslin identifies the ways in which Congress and federal courts have shaped family status rules, she develops a normative framework for when this type of lawmaking is appropriate. This is the part of the paper that is the most interesting now, with the trajectory of family law up for grabs. Joslin looks to the massive literature of federalism to derive principles of when state or federal control over an area is desirable. State control, she observes, produces decentralized experimentation and can foster innovation. States, too, she observes, as closer to the people, so state action promotes “community buy-in.” When government is closer to the people, it can act as a check on national power, prevent tyranny, and promote liberty.

At the same time, Joslin notes, uniformity is sometimes important to ensure fairness and equality. Special interests can capture local governments, and the federal government may have to intervene to correct for market failure.

Applying these competing principles to family law, Joslin advocates for a system in which experimentation is encouraged in the early stages of change and the federal government intervenes once there has been “sufficient airing of the issue and a general consensus or trend has emerged.” This balance, she argues, will respect the “dynamic” nature of family law and the need for “law to adapt to fit” new realities. It is desirable, she argues, in areas such as the law of gestational surrogacy and the legal status of posthumously born children that the states experiment with different approaches. Because we cannot know with certainty what the “right” direction is in uncharted territory, a state-by-state approach is both safer and more likely to guide us to the right result.

In contrast, there are some areas in which there is enough of an emerging national consensus that the need for uniformity overrides the need for experimentation. Joslin suggests that family law may be a place in which this need for uniformity is particularly acute. Because family members are dependent on one another, both financially for emotionally, “there is something deeply unsettling about a world in which one is considered a child or a parent for some purposes and in some places but not others.” Same-sex marriage provides a perfect example of Joslin here; with the majority of states in the U.S. recognizing same-sex marriage, the need for uniformity is fast outstripping the need of states to experiment.

Joslin’s nuanced approach calls for federal restraint when attempting to shape state definitions. In situations invoking constitutional rights, she argues, “there may be times when early federal intervention is not only helpful, but indeed, may be necessary.” In most circumstances, however, Joslin suggests that “aggressive” federal intervention is likely to be a mistake, resulting in lost opportunities for experimentation and a lack of community buy-in.

So, what to make of Joslin’s arguments today? Now that Obergefell has been decided, we have—for the time being—a requirement imposed by federal constitutional law that any definition of marriage must include same-sex couples. We still, however, have wide variation across states on questions of parentage, especially those involving alternative reproductive technologies (ART). In this landscape, Joslin’s article offers to reasons for hope. First, the article confirms the rightness of Obergefell. Although the majority opinion has serious flaws, under Joslin’s rubric, the big-picture take-away is that society has moved enough in the direction of recognition of same-sex marriage that federal recognition is both timely and appropriate. Could a different Supreme Court overrule this opinion? Certainly yes. But the inexorable trend has been for younger generations to embrace marriage equality and, even if the Court were to undo its work, marriage equality has won the hearts and mind of millennial voters. As for the myriad state-level parentage recognition schemes, Joslin’s article counsels us not to worry so much. Experimentation can be good. California’s recent statutory adoption of up to three legal parents, for example, seems a welcome experimentation but one that is not ripe for adoption on a national scale. Finally, the benefits of federalism come to the fore when a nation changes its federal leadership so drastically, so quickly. Uniformity can be good, but only when we have a collective consensus on what the “right” answer is. After a national election in which the electors and the popular vote split and the nation is almost evenly divided, it may be time to celebrate the local.

Cite as: Kerry Abrams, Flirting with Federal Family Law, JOTWELL (March 13, 2017) (reviewing Courtney G. Joslin, Federalism and Family Status, 90 Indiana L. J. 787 (2015)),

Supporting Premarital Agreements

Elizabeth R. Carter, Rethinking Premarital Agreements: A Collaborative Approach, 46 N.M. L. R. 354 (2016).

Premarital agreements (also known as “antenuptial agreements” and “prenuptial agreements”) are agreements entered by spouses-to-be just before marriage. Typically, such agreements involve waivers or modifications of the parties’ legal rights at divorce or at the death of one of the spouses. Premarital agreements do not have a good reputation among academics; such agreements are generally considered exploitative and criticized for frequently leaving ex-spouses impoverished (practitioners, especially those for whom preparing such agreements is part of their practice, may have different views). Contrarian views in this area—as in all areas—are a welcome catalyst for new analysis, and perhaps new prescriptions. So Elizabeth Carter’s “rethinking” of premarital agreements—both how they should be valued and what procedures should surround them—is most welcome.

Carter’s initial point is that both scholarly commentary and legal analysis of premarital agreements is based on unsupported empirical claims that premarital agreements generally involve richer would-be husbands imposing exploitative one-sided terms on poorer would-be wives. Like Carter, I do not know of any reliable data regarding how many people enter premarital agreements, what their motivations are, and how frequently one-sided terms are included in those agreements. However, the view of premarital agreements as instruments of oppression is not entirely mythical: it comes from reading the published opinions involving them (where this scenario is in fact common). But why should we assume that the reported cases accurately reflect the general practice of premarital contracting? Perhaps only the unconscionable agreements get litigated (and appealed)? Agreements that are entered in good faith and are substantively fair are unlikely to be challenged, and if challenged, they will probably not raise the sort of issues that result in reported decisions.

Taking stock of the scant empirical evidence, Carter disputes the conventional wisdom regarding premarital contracting. She notes that more and more couples have comparable sophistication and bargaining power. In any event, she observes, the value of the default rights waived under premarital agreements are frequently overstated: e.g., spousal support (alimony) is rarely granted, the value of dower or elective share is often diminished by careful estate planning, and the combination of equitable division and the state definition of marital/community property can lead to small yields.

Carter also takes issue with the rules associated with premarital agreements. For example, almost all states invalidate premarital agreements where the party seeking to enforce the agreement had not made an adequate financial disclosure prior to entering the agreement. Carter argues that this is a strange emphasis, given that assets owned prior to the marriage are (in most jurisdictions) not subject to division at divorce. It is income received during the marriage that will become part of the marital or community property subject to (equal or equitable) division at divorce. While disclosure of current income and assets may give prospective spouses a good indication of income during the marriage, Carter’s point that the current rules over-emphasize the value of disclosure still has some bite.

The article’s argument for premarital agreements is roughly the same argument offered both for limited review of separation agreements and (in commercial agreements) for enforcing liquidated damages provisions: by creating a certain, predictable outcome, senseless and expensive litigation is avoided and the parties can better plan their future. With this in mind, Carter posits that couples should be encouraged to enter premarital agreements; and that this should be done through a collaborative process, using a single lawyer. In this regard, premarital agreements would be like estate planning: collective decision-making with the assistance of a legally trained advisor (no need for the expense of two). To be clear, Carter is no disinterested observer here. As she notes (P. 354), she and her husband have taken this path themselves.

As with any piece of legal scholarship, there is room for quibbles about the article: at times it could have been more precise in distinguishing rules that require separate legal representation from rules (like those in the Uniform Premarital and Marital Agreement Act, and in some states) that require an opportunity for separate representation (time enough to consult a lawyer, and resources for doing so, provided by the other partner if necessary); and the article could be clearer on the standard set by Uniform Premarital Agreement Act and adopted by many states (under the UPAA, agreements can be challenged on the basis of either (a) a lack of voluntariness; or (b) proof that the agreement was unconscionable and that there was a failure of financial disclosure).

The more important concern would be that while there is certainly value to Carter’s collaborative approach, there are still concerns about more one-sided, exploitative agreements. Although a growing number of couples have comparable income and education levels, there remains the distinct possibility that a significant portion (even if not a majority) of premarital agreements may involve significant imbalances in sophistication and bargaining power. How can we encourage Carter’s collaborative approach to premarital contracting while still responding appropriately to more oppressive agreements? In some ways, Carter’s insightful article indirectly raises the same set of issues that other scholars have raised: that the social norms and legal rules that work well for some segments of the population may ill serve others.1

  1. See, e.g., June Carbone & Naomi Cahn, The Triple System of Family Law, 2013 Mich. St. L. Rev. 1185; Charles Murray, Coming Apart (Crown Forum, 2012). []
Cite as: Brian Bix, Supporting Premarital Agreements, JOTWELL (December 13, 2016) (reviewing Elizabeth R. Carter, Rethinking Premarital Agreements: A Collaborative Approach, 46 N.M. L. R. 354 (2016)),

Inconsistency, Marriage Equality, and Legal Change by Stealth

Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015).

Obergefell v. Hodges and the cases that preceded it present a perplexing paradox. On the one hand, opponents of marriage equality vigorously argued that marriage should be limited to opposite-sex couples in the interest of children, as traditional marital families offered the optimal setting for childrearing. On the other hand, most of the opponents’ home states placed foster children with LGBTQ foster parents and allowed LGBTQ individuals to adopt children. On the surface, these conflicting impulses might simply have resulted from the confusion of multiple actors and advocates at different levels of government. In the insightful hands of Cynthia Godsoe, however, these contradictions disrupt traditional narratives of marriage equality and legal reform, demonstrate the power of quiet intersectionalism and coalitions, and illustrate how diverse family structures can drive social change.

In Adopting the Gay Family, Godsoe delves into the disparate treatment of gay parenthood and gay marriage to show how adoption became a “stealth path” to marriage equality. As she explains, from the beginning, the push for gay adoption relied on a coalition of vulnerable groups. In the 1970s, unable to find homes for teenagers “with homosexual tendencies,” a few jurisdictions turned to gay and lesbian adoptive parents to take in children that the rest of society rejected. Similarly, in the 1980s, adoption agencies confronting the challenges of placing HIV-positive babies affirmatively sought LGBTQ adoptive and foster parents.

Although there was some backlash when conservatives learned that children were being placed with gay and lesbian adoptive parents, as Godsoe notes, opposition to these policies was relatively cabined. Marriage, by contrast, has always been the more controversial topic—not a single state allowed same-sex marriage before allowing adoption by LGBTQ people. Godsoe identifies a number of factors that contributed to opponents’ simultaneous tolerance of gay adoption alongside their resistance to the prospect of gay marriage: the hypersexualization of queer people that blinded many to nonsexual aspects of their private lives, the interest in privatizing dependency by placing as many foster children as possible in adoptive homes, and the devaluation of foster children that generally kept them—and the issue of gay adoption—out of the public eye. In a humorous (if dispiriting) note, she points out that prominent voices in the marriage debate, both scholars and government actors, were simply ignorant of the law and assumed that LGBTQ people were barred from adopting, even in states that had been placing children with gay adoptive parents for decades.

Gay adoption’s invisibility, Godsoe points out, has important implications that complicate the dominant narrative that valorizes appellate courts and legislatures as reliable agents of social change.1 As she explains, because family law generally operates underneath the radar of legal analysis—absent a hook into constitutional law—the quotidian assessments of the best interest of a child are perceived as low stakes, and thus do not garner much attention. This lack of attention, coupled with the high level of discretion that family law judges enjoy, is often criticized on the ground that it can lead to decisions that are deeply informed by an individual judge’s prejudices. As Godsoe argues, however, in the context of LGBTQ adoptions, these factors combined to give some judges and adoption caseworkers the flexibility to place as many children in loving homes as possible, even though many of those homes were headed by same-sex couples. By the time such families came to the attention of people fighting over marriage equality, the horse was out of the barn. The thousands of same-sex couples raising children with the explicit imprimatur of the state fundamentally undermined arguments that marriage could be limited to opposite-sex couples in the interest of child welfare. In this regard, contrary to the conventional wisdom, lower-level judges and state-level bureaucrats functioned as powerful agents of social change.

It is hard to overstate how important the fact of existing same-sex adoptions were in the debate over marriage equality. For the most part, courts faced with claims that existing marriage statutes violated state or the federal constitutions applied rational basis review. On this account, any legitimate reason for limiting marriage to opposite-sex couples, even one hypothesized by a court, would be sufficient to reject a challenge to laws limiting marriage to opposite-sex couples. Indeed, multiple states argued that mere doubts about the effect of same-sex parents on children should be enough to support restrictions. As these jurisdictions argued, absent clear evidence that LGBTQ parents did not pose harm to children in their care, it was rational for a state to prefer “traditional” marriage. In theory, this argument could easily have succeeded. In practice, however, the fact that many of these jurisdictions were affirmatively placing foster and adoptive children with LGBTQ families made the argument appear blatantly irrational. By the time the Supreme Court took up the question of same-sex marriage in Obergefell v. Hodges, the issue was no longer whether same-sex parents posed harm to children, but rather whether their exclusion from marriage posed a dignitary harm to same-sex parents and their children. In this way, the paradox of state-sanctioned same-sex adoption helped lay a foundation for legal recognition of these families through marriage.

In exploring the interaction between gay adoption and marriage equality, Godsoe highlights a number of provocative implications for family law more broadly. The invisibility in some quarters of foster and adoptive families revealed the many dangers of focusing reform efforts on privileged groups. As Godsoe explains, the idealized nuclear family imagined—and valorized—in marriage equality litigation bore little resemblance to many LGBTQ families on the ground. In this regard, diverse family structures may not only drive changes in state-level family law and policy, but may also help shape and change constitutional doctrine as well. Finally, Godsoe exposes the lip service of appeals to child welfare in these cultural debates. For all their talk about the ideal family structure in which to raise children, policymakers paid little attention to whether vulnerable children were placed in “ideal” families or in families that these jurisdictions would later denigrate as “second-best” and “harmful.”

The long-term effects of the interaction between gay adoption and the marriage equality debate are far from clear, but Godsoe paints a compelling picture of how low-level public servants quietly furthering the interests of two maligned and discarded groups contributed to significant reform. In so doing, she prompts the reader to wonder whether marriage equality is the only arena in which such coalitions can prevail.

  1. See Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663, 688-94 (2012); William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419, 425 (2001). []
Cite as: Dara E. Purvis, Inconsistency, Marriage Equality, and Legal Change by Stealth, JOTWELL (September 15, 2016) (reviewing Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015)),

Adventures in Co-Parenting: Charting a Course for Postmarital Families

Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167 (2015).

Last year, Obergefell v. Hodges seized center stage as many family law scholars began evaluating the implications of the Supreme Court’s decision recognizing gay Americans’ constitutional right to marry. Other scholars, however, remained more interested in exploring the inverse phenomenon: the decreasing relevance of marriage and married life for many Americans. Specifically, research shows that many poor and working class Americans no longer find marriage to be a precondition for romantic relationships or parenthood. This group of Americans has formed what Huntington calls “postmarital families.” In her wonderful article, Postmarital Family Law: A Legal Structure for Nonmarital Families, Huntington explores the legal implications of this dramatic cultural shift.

Huntington begins by rendering visible the bifurcated world we currently inhabit now that marriage is no longer the institution that constitutively defines all families. One group of Americans, a relatively wealthier group, lives in marital families; the other, composed of less financially secure individuals, has formed nonmarital, or “postmarital,” family units. Yet family law, she argues, still treats all families as though they are marital families. As a consequence, “postmarital” families are forced to navigate ossified legal presumptions, ill-fitting rules, and institutional structures designed around marriage. Huntington’s discussion successfully renders visible postmarital families’ specific, unique dynamics and further reveals the way existing family law aggravates these families’ special vulnerabilities. She also shows how family law—its legal norms and institutions—must evolve to address postmarital families’ unique problems.

One of Huntington’s most compelling examples is her discussion of child custody. As she explains, the default presumption in many states is that when parties are unmarried, sole custody of a child is awarded to the mother. (P. 204.)1 By contrast, when couples are married, no determination of custody is made and legal presumptions vest both parents with custodial rights and other parental prerogatives.2 Huntington further shows that laws vesting sole, primary custody with unmarried mothers aggravate existing tensions in postmarital families. Specifically, they facilitate maternal gatekeeping, a dynamic in which mothers control nonresident fathers’ access to their children. (P. 204-05.) To exercise their custody rights, fathers in postmarital families must petition the court for relief, a remedy that is far too complex and expensive for most postmarital fathers. Further aggravating matters, the only default regulations that actually affect postmarital fathers are child support regulations. Child support regimes focus solely on financial contribution, enforcing a de facto (male) breadwinner standard derived from marriage. This breadwinner standard sets up poor unemployed or underemployed fathers for failure. (P. 207-08.)3 Moreover, the law’s emphasis on financial contributions from fathers, rather than ability to provide care, encourages even more resentment from mothers in postmarital families, fueling acrimony between the parties.

After describing how the current legal rules aggravate dynamics specific to postmarital families, Huntington points to research showing that children benefit when both parents are able to maintain engaged and loving relationships with them. (P. 173.) She also points to the growing cultural understanding that children require more than economic contribution from their fathers, and that paternal care has value as well. Huntington then offers a postmarital law solution: at the birth of their child both postmarital parents should be given enforceable legal and physical custody rights to the child. Equally important, they must be provided with a dispute mechanism that requires parties to cooperate and jointly work out custodial arrangements. (P. 209.)

Many of Huntington’s suggested innovations for postmarital family law are bound to trigger pause. These proposals include tying child support regimes to child custody and visitation regimes, and in this way securing postmarital fathers’ consistent access to their children. Also, questions remain about how many of her custody and child support proposals would play out on the ground in poor and working-class communities. Yet, regardless of whether one agrees with all of her suggestions or specific calls for changes in the law, Huntington charts a course that allows us to bring postmarital families’ key concerns to the fore.

Importantly, legal scholars should find value in the piece, even if they question her specific proposals, for Huntington also provides a way out of a key logjam in scholarly debates about family law norms. One camp seeks to strengthen the norm of marriage; the other camp proposes we shift to a family law model that concentrates more on strengthening and supporting parent-child relationships. (P. 172.) Huntington instead argues postmarital couples’ post-union relationships cannot be disaggregated from the effects these relationships have on their children. When a couple’s romantic connection wanes, postmarital families need an administrative or institutional mechanism that allows them to set rules and develop expectations around their mutual co-parenting roles. (P. 231.) Huntington explains that divorcing couples —putting aside the existing problems in divorce law and family law institutions4—know they can depend on an established structure for working through conflicts as they shift to a co-parenting relationship. Huntington seeks to provide the same benefits to co-parents in postmarital families.

Huntington also does an outstanding job pushing family law scholars to confront their deepest anxieties about how postmarital families operate – and she shows that we can do so without pathologizing the families involved. Specifically, Huntington openly and honestly engages with the churning dynamic that seems to affect modern postmarital families. (P. 195.) Many co-parents, particularly male parents, find it hard to maintain relationships with their children because the children’s mother goes on to form a new relationship, and often a new postmarital family. When this second postmarital family is formed, the biological father of children from the first postmarital family tends to get crowded out of his children’s lives. Also when a mother takes a new partner and has another child, her new partner may not devote the same care and attention to biologically-unrelated children in the family as he does to his own. A postmarital father with children may also form a second postmarital family, thus weakening his connection to his children from his prior relationship. Alternative dispute resolution agencies could serve an important role here, helping postmarital families develop co-parenting standards that manage these kinds of disruptive family changes. It is refreshing to read a family law analysis that deals with the problems caused by parents’ shifting romantic allegiances without casting judgment on those involved.

In short, Postmarital Family Law is likely to become a key resource for family law scholars interested in charting the dynamics of family life outside of the traditional nuclear family. Huntington’s careful, respectful, and creative approach to understanding postmarital families makes the article an exemplary piece of scholarship. Her work demonstrates the rich possibilities that are available when we shift our attention away from so-called traditional families and consider new family forms without pathologizing these alternative arrangements. She further shows that we can identify the core values that must be advanced to cultivate a nurturing and supportive family unit for children. Scholars can then use these values to imagine new legal structures that are more attentive to contemporary material and social conditions.

  1. Fifteen states have statutes that provide for this default rule. (P. 204 n. 204.) The maternal custody presumption continues to be enforced in these states despite the fact that these laws appear to violate basic equal protection standards. By contrast, some state statutes technically give both parents equal rights to a “parental relationship” when they have a child out of wedlock; however, these statutes still as a practical matter do not guarantee fathers’ custodial rights. (P. 204.) Courts may recognize a party as a legal parent, but give that party no custodial rights until one petitions for relief. This regime often adversely affects nonmarital fathers. []
  2. As Huntington explains, courts assume that marital families have two emotionally invested parents deserving of legal rights, and nonmarital families have one, the mother. As a result, nonmarital fathers are forced to jump multiple hurdles to establish legal rights and authority over their children. (P. 203-04.) []
  3. Some would argue that child support law is actually a kind of postmarital law, as it has been historically used to ensure unmarried fathers support their children. []
  4. Huntington recognizes that family law is far from ideal at present and that the divorce process presents challenges for marital families. However, she explains that these problems in family law are beyond the scope of this project. They are not relevant to her current concern: exploring the way laws premised on marriage create problems for unmarried persons. (P. 171 n. 17.) Scholars may disagree with her view, and see productive commonalities shared between divorcing and postmarital mothers. []
Cite as: Camille Gear Rich, Adventures in Co-Parenting: Charting a Course for Postmarital Families, JOTWELL (August 2, 2016) (reviewing Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167 (2015)),

On Marriage Equality and Transformation Through Preservation

Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016).

For nearly as long as same-sex couples have been pressing for marriage equality, progressive legal commentators have been engaged in a robust debate over the desirability of making marriage the main focus—indeed, a focus—of the gay rights movement. Some in this conversation view same-sex marriage as radical, an institution capable of disrupting the links between biology and gender that have long structured marital parenthood.1 Others view it as regressivist, an institution bound to co-opt individuals who choose to organize their lives outside of marriage and one that betrays earlier family law advocacy on behalf of nontraditional parents by valorizing the link between marriage and parentage.2 For many in this latter camp, same-sex marriage is a normatively repressive “straight”-jacket (pun intended).

In Marriage Equality and the New Parenthood, Douglas NeJaime aims to unsettle the second of these views, but in the process destabilizes them both. He does so by foregrounding the legal relationship between marriage and parenthood before, during, and after the nationwide push for marriage equality. Neither completely radical nor completely reactionary, marriage equality, NeJaime shows, is the product of progressive family law pluralism, which itself was the product of a vision of marriage that was in some respects traditional. Even more, NeJaime argues that marriage equality will produce—and already has produced—the pluralistic family law from which it springs, and will likely reverberate well beyond the confines of outlying groups like sexual minorities given its potential to erode the legal priority of marriage, an institution that is already in decline for many. On this masterful telling, marriage equality is at once radical margin and less-radical center.

To disrupt the binaries—like margin/center and non-marriage/marriage—on which scholars often rely when conceptualizing the family and its legal regulation, NeJaime turns to history—specifically, to national legal developments surrounding the heterosexual family in the 1960s and 1970s and to a case study of nontraditional parenting cases and advocacy in California from 1984-2005. His aim in so doing is refreshingly simple, though by no means simplistic: to show that traditional paradigms like the heterosexual family have long been deployed to facilitate more, not just less, inclusive parentage principles.

Representing in many ways the heart of NeJaime’s article, the California case study illuminates the delicate pas de deux that existed between marriage and non-marriage in that state’s family law advocacy from 1984 to 2005. Here, NeJaime expertly weaves together myriad historical sources to show that advocates—including some of the same LGBT advocates who would later spearhead marriage equality on the national stage—and courts argued for and solidified, respectively, the rights of non-biological and non-marital families by appraising their similarities to a marital ideal characterized by relational commitment and interdependence. Crucially, these legal actors used marriage—whether actual, as in the case of heterosexual couples who created family through surrogacy, or symbolic, as in the case of same-sex couples for whom legal marriage was not an option but who nonetheless created non-biological kinship through vehicles like adoption and alternative insemination—in order to generate new family forms grounded in novel legal indicia like intent, conduct, and function.  Marriage, in other words, was deployed during this period as a proxy for the very principles—intent, conduct, and, function—that would ultimately displace the law’s traditional markers of kinship: biology, gender, sexual orientation, and even marriage itself.

As if creating a historical counter-narrative that persuasively challenges the progressive critique of marriage equality were not by itself a notable feat, NeJaime then uses that narrative to highlight marriage equality’s progressive dimensions and radical potential. Far from abandoning family law pluralism, NeJaime argues, marriage equality solidifies it as a constitutional norm—with potentially universal application. He shows that marriage equality jurisprudence, including United States v. Windsor and Obergefell v. Hodges, embodies the inclusive parentage principles that emerged from alternative family law advocacy decades earlier; those same principles, NeJaime suggests, will continue to alter the landscape of American family law for years to come. A direct descendant of family law pluralism, marriage equality, on NeJaime’s account, has the capacity to further instantiate intentional, functional kinship—by, for instance, decentering biology’s primacy in shoring up common law doctrines like the marital presumption—and even to erode the supremacy of marriage (and its traditional correlate, dyadic parenthood) in ways that potentially touch everyone, not just same-sex couples.

While an absorbing analysis of the dynamic synergies between presumed opposites in the marriage equality movement and the critical conversation surrounding it, Marriage Equality and the New Parenthood is also a fascinating study of the evolution of law and social movements. Far from a simple clash of binaries, law is better described as a feedback loop that changes ever so slightly with each progression. The margin changes the center even as it is absorbed by it, though on close inspection the margin was never completely isolated from the center at all. According to the particular feedback loop (and margin/center relationship) that NeJaime identifies, the expansion of heterosexual parentage (eventually) led to the recognition of LGBT family formation, which (eventually) led to marriage equality for same-sex couples, which might (eventually) lead to the further expansion of heterosexual and LGBT parenthood and even to the diminishment of marriage as the dominant relational form in American law and culture—for everyone. Put in margin/center terms, a traditional or central relationship (marriage) stimulated the expansion of a marginal one (non-marriage), which in turn facilitated the development of a central relationship (same-sex marriage) that might over time multiply marginal practices—practices that transform the very relationship that gave rise to them. And so the wheel turns.3

In some ways, in fact, NeJaime’s analysis of marriage equality’s evolution and, in his words, its “transformative aspects” represents an intriguing example of the inverse of Reva Siegel’s theory of “preservation through transformation.”4 Where Siegel holds that, in some contexts, legal justifications transform over time in order to preserve the status quo,5 NeJaime shows us that sometimes, at least, legal justifications (here, family law pluralism) are preserved over time in order to transform the status quo (here, traditional marriage). His, then, is an example of “transformation through preservation.” The comparison is not perfect, but that should not prevent us from thinking about the larger implications and applications of NeJaime’s important contribution, a compelling meditation of how law is made—both within the marriage equality context and well beyond it.

  1. See, e.g., Nan D. Hunter, Introduction: The Future Impact of Same-Sex Marriage: More Questions Than Answers, 100 Geo. L.J. 1855, 1864 (2012); Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 L. & Sexuality 9, 16–17 (1991). []
  2. See, e.g., Nancy D. Polikoff, We Will Get What We Ask for: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender in Every Marriage, 79 Va. L. Rev. 1535 (1993). []
  3. NeJaime identified a similar dynamic in an earlier article, Before Marriage: The Unexplored History of Nonmarital Recognition and its Relationship to Marriage, 102 Calif. L. Rev. 87 (2014). There, NeJaime uses a case study similar to the one employed here to demonstrate that formal marriage was an organizing principle for LGBT advocates who pressed for same-sex domestic partnership recognition in California in the 1980s and 1990s. NeJaime’s Before Marriage uncovers a feedback loop similar to the one he uncovers here: marriage helped to generate non-marriage recognition, which, in turn, helped to generate a new vision of marriage capable of accommodating a formerly marginalized group (sexual minorities). See NeJaime, supra, at 165 (stating that “[e]ven as LGBT advocacy on domestic partnership in some ways—and counterintuitively—furthered the centrality of marriage, it elaborated the content of marriage and consequently contributed to a model of marriage capable of including same-sex relationships”). []
  4. Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2119 (1996). []
  5. See Siegel, supra note 4, at 2119 (using the theory of “preservation through transformation” to explain the evolution of domestic assault law during the nineteenth century); Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1119 (1997) (using the theory of “preservation through transformation” to explain “the evolution of racial status law during the Reconstruction era”). []
Cite as: Courtney Cahill, On Marriage Equality and Transformation Through Preservation, JOTWELL (June 7, 2016) (reviewing Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016)),

Sex Discrimination: The Future of LGBT Rights?

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?”1

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.2 Unfortunately, it has not fared so well among judges. Although plaintiffs have been advancing this argument since the 1970s,3 only a handful of trial and appellate judges have endorsed it.4 Notwithstanding the Chief Justice’s remark at oral argument, the sex discrimination argument was not specifically addressed in Obergefell itself.5 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,6 Goldberg reminds us that “most judges are or have been married to different-sex partners.” (P. 2130.)7 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.8

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.9 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.10 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.11

  1. Transcript of Oral Argument at 62, Obergefell v. Hodges, 135 S.Ct. 2071 (2015) (No. 14-556). []
  2. See, e.g., Suzanne Pharr, Homophobia: A Weapon of Sexism (Chardon Press, expanded ed. 1997); Susan Frelich Appleton, Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate, 16 Stan. L. & Pol’y Rev. 98 (2005); Mary Anne Case, What Feminists Have to Lose in Same-Sex Marriage Litigation, 57 UCLA L. Rev. 1199 (2010); Mary Anne Case, Very Stereotype the Law Condemns: Constitutional Sex Discrimination Law As a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447 (2000); Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein, 49 UCLA L. Rev. 519 (2001); Andrew Koppelman, Note, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 Yale. L.J. 145 (1988); Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994); Sylvia Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 188 (1988); Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J. of L. & Gender 461, 479–87 (2007). []
  3. See, e.g., Singer v. Hara, 522 P.2d 1187, 1190 (Wash. Ct. App. 1974). []
  4. See Latta v. Otter, 771 F.3d 456, 496 (9th Cir. 2014) (Berzon, J., concurring); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206-07 (D. Utah 2013), aff’d, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 131 S. Ct. 265 (U.S. 2014); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996, 997 (N.D. Cal. 2008); Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (plurality op.); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 970-72 (Mass. 2003) (Greeney, J., concurring); Baker v. State, 744 A.2d 864, 898 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part). []
  5. To be more precise: In Obergefell, the Court did not specifically address whether laws against same-sex marriage were a form of discrimination based on sex, and therefore subject to heightened scrutiny under the Equal Protection Clause. The Court did, however, consider the history of sex discrimination in marriage laws—namely, the existence and abolition of coverture—to determine how broadly the “fundamental right to marry” would be construed. In this respect, the Court’s analysis in Obergefell closely tracked the analysis of Chief Judge Vaughn Walker in Perry v. Schwarzenegger. See Clifford Rosky, Perry v. Schwarzenegger and the Future of Same-Sex Marriage Law, 53 Ariz. L. Rev. 913, 933-942 (2011). []
  6. Mary Anne Case, What Feminists Have to Lose in Same-Sex Marriage Litigation, 57 UCLA L. Rev. 1199, 1232 (2010). []
  7. One might add that even today, most judges are male, heterosexual, and likely to identify as family breadwinners. To date, several of the judges who have embraced the sex discrimination argument are female. See, e.g., Latta v. Otter, at *15 (9th Cir. Oct. 7, 2014) (Berzon, J., concurring); Hernandez v. Robles, 855 N.E.2d 1, 29 (N.Y. 2006) (Kaye, C.J., dissenting); Baker v. State, 744 A.2d 864, 905 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part). Studies have consistently found that heterosexual men are more likely than heterosexual women to accept homophobic and heterosexist stereotypes. Clifford Rosky, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, 20 Yale J. L. & Feminism 257, 267-268 (2009). []
  8. Leah Libresco, Seven Other States Are Considering Restricting Bathrooms For Transgender People,, Apr. 6, 2016. []
  9. H.R. 3185, 114th Cong. (2015); S. 1858, 114th Cong. (2015). []
  10. See, e.g., G.G. v. Glouchester County School Board, No. 15-2056, 2016 WL 1567467 (4th Cir. Apr. 19, 2016); Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 (E.E.O.C. July 15, 2015); Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). []
  11. On the strategic tradeoffs involved in litigating and lobbying for LGBT-inclusive antidiscrimination protections, see Clifford Rosky, Still Not Equal: A Report from the Red States, in After Marriage Equality: The Future of LGBT Rights (Carlos Ball ed. NYU Press, forthcoming 2016); Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333 (2014). []
Cite as: Clifford Rosky, Sex Discrimination: The Future of LGBT Rights?, JOTWELL (May 23, 2016) (reviewing Suzanne Goldberg, Risky Arguments in Social-Justice Litigation: The Case of Sex Discrimination and Marriage Equality, 114 Colum. L. Rev. 2087 (2014)),

Shades of Discrimination Brought to Light

Nancy Leong, Negative Identity, 88 S. Cal. L. Rev. 1357 (2015).

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.1 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.

  1. See, e.g., Elizabeth F. Emens, Compulsory Sexuality, 66 Stan. L. Rev. 303 (2014) (asexuals); Nelson Tebbe, Nonbelievers, 97 Va. L. Rev. 1111 (2011) (atheists). []
Cite as: Kaiponanea Matsumura, Shades of Discrimination Brought to Light, JOTWELL (April 26, 2016) (reviewing Nancy Leong, Negative Identity, 88 S. Cal. L. Rev. 1357 (2015)),

Alternative Reproduction in the Age of Marriage Equality

Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015).

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.1 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.


  1. See Naomi Cahn, The New Kinship: Constructing Donor-Conceived Families 117, 129, 155 (2013). []
Cite as: Douglas NeJaime, Alternative Reproduction in the Age of Marriage Equality, JOTWELL (March 9, 2016) (reviewing Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015)),