Marriages, Contracts, and Deals

Martha M. Ertman, Marital Contracting in a Post-Windsor World, 42 Florida St. L. Rev. 479 (2015).

Henry Maine famously claimed that societies tend to move from status to contract.1 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.



  1. Maine wrote: “we may say that the movement of progressive societies has hitherto been a movement from Status to Contract.” Henry Summer Maine, Ancient Law, ch. 5 (1861). []
Cite as: Brian Bix, Marriages, Contracts, and Deals, JOTWELL (December 2, 2015) (reviewing Martha M. Ertman, Marital Contracting in a Post-Windsor World, 42 Florida St. L. Rev. 479 (2015)), https://family.jotwell.com/marriages-contracts-and-deals/.
 
 

A Different Kind of Marriage Equality

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.1 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.”2

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.3 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.4 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.5 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.



  1. McGuire v. McGuire, 59 N.W.2d 336 (1953). []
  2. Id. []
  3. Catherine Kenney, The Power of the Purse: Allocative Systems and Inequality in Couple Households, 20 Gender & Society 354 (2006). []
  4. See Naila Kabeer, Reversed Realities: Gender Hierarchies in Development Thought 101–15 (1994) (discussing economic fallacies about intrahousehold altruism and decision making); Bina Aggarwal, Bargaining and Gender Relations: Within and Beyond the Household, 3 Feminist Econ. 1, 14–20 (1997) (discussing intrahousehold gender dynamics and bargaining as they pertains to women’s role in the household). []
  5. United States Bureau of Labor Statistics, Women in the Labor Force: A Databook May 2014,(2014). []
Cite as: Cyra Choudhury, A Different Kind of Marriage Equality, JOTWELL (November 13, 2015) (reviewing Elizabeth R. Carter, The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality, 48 Ind. L. Rev. 853 (2015)), https://family.jotwell.com/a-different-kind-of-marriage-equality/.
 
 

Who’s Afraid of the Welfare Queen? Stigmatized Motherhood, Tropes and the Policing of the American Poor

Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C.J.L. & Soc. Just. 233 (2014).

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 Gilman1 to Kaaryn Gustafson,2 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.3

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 Hancock4 and Dorothy Roberts,5 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.



  1. The Return of the Welfare Queen, 22 A.U.J. Gender, Social Policy, & the Law 247 (2014). []
  2. Cheating Welfare: Public Assistance and the Criminalization of Poverty, (2011). []
  3. A video presentation of Cammett presenting her piece is available as part of the recent conference Reframing the Welfare Queen: Feminist and Critical Race Theory Alternatives to Existing Poverty Discourse. Conference proceedings will be published in 2015 in an upcoming issue of the USC Interdisciplinary Law Journal. []
  4. The Politics of Disgust and the Public Identity of the Welfare Queen, (2004). []
  5. Welfare Reform and Economic Freedom: Low-Income Mothers’ Decision about Work at Home and in the Market, 44 Santa Clara L. Rev. 1029 (2004). []
Cite as: Camille Gear Rich, Who’s Afraid of the Welfare Queen? Stigmatized Motherhood, Tropes and the Policing of the American Poor, JOTWELL (September 30, 2015) (reviewing Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C.J.L. & Soc. Just. 233 (2014)), https://family.jotwell.com/whos-afraid-of-the-welfare-queen-stigmatized-motherhood-tropes-and-the-policing-of-the-american-poor/.
 
 

How Families Gain Recognition

Elizabeth S. Scott & Robert E. Scott, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, 115 Colum. L. Rev. 293 (2015).

Family law scholarship features a significant amount of normative work arguing for greater recognition of diverse family forms. Careful descriptive work analyzing how such families gain recognition is far less common. Elizabeth Scott and Robert Scott’s insightful new article, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, forthcoming in the Columbia Law Review, critically mines this second vein. Scott and Scott shift the focus away from the question of why we should provide greater recognition to more family forms and toward the question of how the state comes to accept and recognize novel family arrangements.

Beginning from the premise that families with “the qualities of commitment, durability, and emotional and financial interdependence deserve legal recognition and support,” Scott and Scott elaborate an informal model by which new family forms demonstrate these qualities and gain state recognition.

First, as individuals engage in novel family formation, they face uncertainty over whether their family will in fact be characterized by emotional and economic interdependence. In this stage, family members themselves negotiate and define their roles and responsibilities. Next, because these novel families face social isolation, they must find other similar families to organize into what Scott and Scott describe as a “normative community.” With shared values and goals, families mobilize around a coherent identity. The public, in turn, begins to accept these families and to recognize their productive functions. Finally, these families face regulatory uncertainty as the state seeks to verify that the families function in ways that merit government recognition. In what Scott and Scott describe as an iterative process, the state extends rights and benefits to families in an incremental fashion that allows the government to verify the family’s bona fides. Because “qualities that characterize successful family groups . . . are not readily observable” and “are difficult to evaluate in the absence of express promises or reliable proxies,” it is critical that advocates—often lawyers—persuade the public and state decision makers that these families meet society’s expectations and serve the state’s regulatory objectives.

Scott and Scott test the explanatory power of their model against the divergent paths of same-sex and different-sex unmarried, cohabiting couples. Mapping these couples onto the model brings into view crucial differences that help to explain why LGBT advocacy successfully marched toward rights and recognition—and ultimately marriage—while different-sex cohabitants have been largely left behind.

The LGBT experience highlights the significance of the iterative process that Scott and Scott identify. Viewing the recognition of same-sex couples through Scott and Scott’s model suggests why and how domestic partnership led to marriage, rather than remained a stand-alone alternative to marriage. Same-sex couples’ success depended in part on their ability to map domestic partnership onto marital norms. Advocates convinced decision makers that domestic partners were like married couples and would exhibit the same levels of commitment. Slowly, government actors elaborated domestic partnership at the local and state levels. Ultimately, the recognition regime grew to replicate the rights and benefits of marriage, making the marital distinction appear arbitrary and discriminatory. Through Scott and Scott’s lens, domestic partnership’s role as a stepping stone to same-sex marriage has more to do with the success of same-sex couples’ campaign for family recognition than with the failure of a progressive coalition to marginalize marriage.

The model also helps explain the lack of (large scale) recognition of what Scott and Scott term “informally cohabiting couples.” As they demonstrate, the state is pushed to accommodate novel families when those families effectively mobilize, forming a coherent identity and persuading outsiders that their demands are legitimate. In this regard, the story of unmarried different-sex cohabitants stands in stark contrast to that of same-sex couples. Many different-sex cohabitants have little reason to mobilize for recognition; they either do not seek such recognition or can attain it through marriage. Accordingly, Scott and Scott conclude that the response to the exclusion of cohabitants from legal protections “has been relatively passive.”

The experience of different-sex couples with domestic partnership regimes underscores the consequences of this passivity. Some domestic partnership regimes that emerged in the 1980s and 1990s included both same-sex and different-sex cohabitants. While conventional wisdom holds that different-sex and same-sex couples were united by their shared nonmarital status, a careful review of the history suggests important points of differentiation. Some advocates for same-sex couples often distinguished their constituents from unmarried different-sex couples. In domestic partnership advocacy in California, for example, advocates at times framed same-sex couples as like married different-sex couples—willing to accept financial and emotional obligations—and unlike unmarried different-sex couples—who were seen to resist marriage’s responsibilities.

Moreover, while same-sex couples used domestic partnership to signal their marriage-like commitment, different-sex couples largely ignored this signaling feature. For example, when in 1996 San Francisco City Hall hosted a mass domestic partnership ceremony officiated by the mayor, only one different-sex couple participated, even though the law covered both same-sex and different-sex couples. “We’ve thought about [getting married],” the couple commented, “but one of us always chickens out.”1 For this different-sex couple, domestic partnership signaled not an acceptance of marriage’s obligations, but rather the affirmative avoidance of those obligations. This, Scott and Scott explain, is unlikely to form the normative basis on which to build a successful family recognition effort.

Through this lens, the more recent retraction of domestic partnership recognition—as same-sex marriage gains hold—appears to be less a story of conservative retrenchment and more the byproduct of same-sex couples’ successful drive for recognition. As alternative statuses incrementally came to replicate marriage, they appeared increasingly unnecessary if same-sex couples had access to marriage. Different-sex couples, who are eligible to marry and who register for comprehensive nonmarital relationship recognition in relatively low numbers, have had little incentive to preserve these nonmarital forms of recognition.

Scott and Scott also posit that the process of gaining recognition itself may shape shared understandings of family and marriage. Again, the movement on behalf of same-sex couples has much to offer. To the extent LGBT advocates emphasized same-sex couples’ similarity to married couples to gain rights and recognition, they focused on particular attributes (mutual emotional support and financial interdependence) and sidelined others (gender differentiation and biological reproduction). Through this process, not only did same-sex couples obtain rights, but they also contributed to contemporary understandings of marriage that may in turn influence the ability of other families to gain recognition. In other words, “the template that marriage provides” subtly changes over time, partly in response to claims made on it by novel families seeking to convince the public and the state that they deserve recognition.

With this in mind, Scott and Scott explain how families’ proximity to marriage helps account for their success in gaining public acceptance and state recognition. As they acknowledge, “families based on marriage likely will continue to enjoy broad public support and a privileged legal status, and to be viewed as embodying qualities associated with satisfactory family functioning.” Therefore, Scott and Scott “explore under what conditions and through what mechanisms other family categories that embody those qualities could attain a similar status.” In this way, their account is, subtly, also an account of marital supremacy. Even efforts once thought to unsettle marriage, such as the campaign on behalf of same-sex couples, operated in the shadow of marriage and ultimately aspired to marriage.

Yet marriage is not the goal across all of the contexts that Scott and Scott explore. They conclude their fascinating article by considering families that map less neatly onto the marital model: multigenerational families and voluntary kin groups. While we may understand the successes and failures of recognition efforts on behalf of same-sex couples, different-sex cohabitants, and polygamous families in light of such families’ relationship to marriage, how might we adapt Scott and Scott’s model to families that are not based on conjugality and to families that may seek rights and recognition that fall well short of marital status? Future work might profitably explore how the state comes to accord—or not accord—rights and recognition to these families.

In the end, Scott and Scott’s article offers a critical and refreshing intervention. While not framed as a corrective, the piece pushes against the common impulse to view the lack of more pluralistic family recognition as a failure in advocacy. Scott and Scott instead show us that the family law regime emerges from complex processes of social and legal change in which families, advocates, the public, and the state all play critical roles. The answers they supply to why and how we come to recognize new family forms should bear on family law scholars’ assessments of changes in family regulation and should influence prescriptive claims animated by those assessments.



  1. Richard C. Paddock, 165 Gay Couples Exchange Vows in S.F. Ceremony, L.A. Times, Mar. 26, 1996, at A1. []
Cite as: Douglas NeJaime, How Families Gain Recognition, JOTWELL (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/.
 
 

Legitimacy’s Uncertainties: Exploring the Presumption’s Premises

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,1 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).2 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.)3 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.)4 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.)5 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.6 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.)7 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.)8 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.)9 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.)



  1. Susan Frelich Appelton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 Boston L. Rev. 227, 228 (2006). []
  2. 491 U.S. 110. []
  3. Quoting In re Estate of Walker, 180 Cal. 478, 491 (1919). []
  4. Quoting Michael H. v. Gerald D., 491 U.S. 110, 125 (1989). []
  5. Quoting id. at 125 n.6. As Counter observes, Justices Kennedy and O’Connor specifically declined to join this footnote. (77). []
  6. Anne B. Goldstein, Homosexuality, History, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yale L.J. 1073 (1988). []
  7. Quoting Monsieur Parent at 2: 601. []
  8. Quoting Michael H. v. Gerald D., 491 U.S. 110, 113-114 (1989). []
  9. Quoting André Gide, Les Nourritures Terrestres (Paris: Gallimard, 2008) (1897), 67. []
Cite as: Clifford Rosky, Legitimacy’s Uncertainties: Exploring the Presumption’s Premises, JOTWELL (July 17, 2015) (reviewing Andrew J. Counter, Always Uncertain: The Presumption of Legitimacy in Two fins de siècle, 26 Law & Lit. 65 (2014)), https://family.jotwell.com/legitimacys-uncertainties-exploring-the-presumptions-premises/.
 
 

Gay Lib Goes to Court: The Marriage of Liberation and Rights

Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN.

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.

Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work,2  prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage.

As Boucai documents, the radicalism of this group of plaintiffs appears particularly foreign when viewed from a contemporary perspective. Unlike the rights perspective that guides many current debates, or even the queer perspective that arose in the 1990s to engage critical thought about rights,3  these early marriage cases, Boucai argues, reflect the gay liberation movement’s radical utopian foundations. As this movement began to seek rights, it drew on central political precepts such as the struggle against racism and, in particular, sexism. Gay liberationists drew on feminist efforts to rework societal sex roles, including an opposition to the patriarchal nuclear family. In this climate, coming out was viewed as a central political act, a gay variation of the feminist exhortation that “the personal is political.” Likewise, the embrace of sexuality was also central. During this period, when even married suburbanites hosted “swinging” key parties, gay men and lesbians also embraced a new eros, rushing to create what Michel Foucault called “laboratories of sexual experimentation.”4  Indeed, the name of the organization run by one of the early gay marriage plaintiffs, Jack Baker, Fight Repression of Erotic Expression (“FREE”), reflects the centrality of sexual liberation to the movement.

Within this historical context, Boucai locates the Baker, Jones, and Singer plaintiffs both as litigants and as movement participants. On this account, these cases were not simply bids to access marriage, but bold salvos against heteronormativity. As Boucai explains, these plaintiffs, perhaps guided by low expectations for success, were bold and innovative in crafting the legal arguments for marriage equality. Several arguments focused on the then-recent developments in sex-discrimination law to mine the radical potential for leveling all restrictions on sex including whom one can marry. This argument, when raised by Justice Roberts recently in Obergefell v. Hodges, still surfaces much controversy.5  Not surprisingly, courts dismissed the arguments—and these cases—out of hand. The creative arguments, brought by a variety of plaintiffs who explicitly embraced sexual liberation, provide a marked contrast with the deliberate and strategic methods of more recent marriage litigation.

Boucai also highlights intra-movement discord, specifically how the more conservative and closeted homosexuals opposed each of the cases. This radical-reformist divide in gay political efforts became apparent a decade later in Larry Kramer’s The Normal Heart.6  In response, the plaintiffs embraced the radical, not the reformist, stance. Given the small chances of success for the litigation, and the plaintiffs’ awareness that marriage was a target rather than a goal, the lawsuits functioned as vehicles for public protest. For example, the Baker plaintiff organized a “zap” protest action, with champagne and a wedding cake, to highlight the pending lawsuit and to come out in a highly visible and political fashion. The couples resisted social definitions of sex roles in their communication with the press, demanding a full-scale reappraisal of marriage and sexual relationships. Indeed, one of the couples had a relationship more akin to what we might call “friends with benefits,” and the suit did not seek to formalize their unorthodox relationship, but rather to render gay life and sexual liberty more visible. They sought to demonstrate that sexual exclusivity, monogamy, and even the sexual relationship itself were invidious elements of the marital relation – that anyone should be able to marry for any reason, including to flout the norms associated with the institution.

Even as he uncovers this lost history, Boucai does not linger on why it has been forgotten. The splits between gay and feminist movements, the retrenchment forced by AIDS, and the subsequent cultural visibility and the concomitant establishment of an increasingly legitimized minority all contributed to the loss of this history and the arguments that undergirded it. Rights-seeking activists, using less radical techniques, gradually took precedence within the gay rights movement (with ACT UP and Queer Nation as notable hybrid exceptions). I remember attending the planning council for the 1987 gay rights March on Washington at which Gay Men’s S/M Activists (GMSMA) held a seat on the planning committee. Such groups disappeared from national political efforts in the subsequent years. As the gay rights movement legitimized itself, organizers suppressed community elements that undermined mainstream acceptance.

Boucai’s methodological rigor, with its hint of nostalgia, renders the piece irresistibly alluring. His concerted and fascinating historical work reflects a broader curiosity about what gay liberation meant7  and marks many paths for future inquiry. Boucai’s renewed embrace of sexual liberation reminds us that the established LGBT-rights movement stands on top of a liberationist, anti-patriarchal agenda that would upend sex, gender, and sexual stereotypes. At a time when identitarianism continues to define lesbian and gay equality efforts, it is my hope that Boucai’s crucial intervention might revitalize moribund debates over the law’s direction with regard to sex and sexuality.

[Editor’s note: for a previous review see Elaine Craig, A Queer Story of Same Sex Marriage.]



  1. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), aff’d, 409 U.S. 810 (1972); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), appeal denied, 84 Wash.2d 1008 (1974). []
  2. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Harvard University Press, 2011). []
  3. For my own contribution to this debate, see, Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay “Victories,4 Law & Sexuality 83 (1994). []
  4. Sexual Choice, Sexual Act: An Interview of Michel Foucault, Salamagundi Magazine, Fall 1982-Winter 1983, reprinted in Foucault Live: Interviews, 1961-1984 225 (Sylvère Lotringer ed. & John Johnston trans. 1989). []
  5. Obergefell v. Hodges, 135 S. Ct. 1039 (2015); Adam Liptak, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage, N.Y. Times, Apr. 29, 2015, []
  6. Larry Kramer, The Normal Heart (1985). []
  7. Consider, for instance, two recent films about gay life in the 1970s. James Franco’s recent video project explores the 1970s leather bar scene, and reminds us that gay sex, then still criminalized, figured as a more central form of resistance to the discrimination homosexuals faced than it does now. Interior. Leather Bar. (James Franco, Vince Jolivette, et al. 2013). While Interior. Leather Bar focuses on sexual liberation, a new film, Limited Partnership, concentrates on a 1970s rights claim for a gay married couple seeking a green card. Limited Partnership (Tesseract Films Corporation, Treehouse Moving Images, LLC, et al. 2015). Both films, the former about liberation, the latter about rights, find the perfect accompaniment in Boucai’s article which artfully grapples with both. []
Cite as: Darren Rosenblum, Gay Lib Goes to Court: The Marriage of Liberation and Rights, JOTWELL (June 24, 2015) (reviewing Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN), https://family.jotwell.com/gay-lib-goes-to-court-the-marriage-of-liberation-and-rights/.
 
 

Reframing (and Reclaiming) Pregnancy and Abortion

Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013).

In recent years, anti-abortion advocates have argued that abortion harms not only a developing fetus, it also harms the woman who chooses to terminate her pregnancy. These arguments, which Reva Siegel has termed “woman-protective anti-abortion argumentation,” have made their way into abortion jurisprudence.1  In the 2007 case Carhart v. Gonzales,  a majority of the Supreme Court characterized abortion as “a difficult and painful moral decision” that may cause women profound psychological, physical, and emotional harm.2

In response to these arguments and the judicial decisions that entrench them as truths, pro-choice advocates have sought to recast abortion in a more positive light. Katha Pollit’s recent book, Pro: Reclaiming Abortion Rights, seeks to strip abortion of its stigma by reframing it as a common part of a woman’s reproductive life—one that may have positive implications for the woman, her family, and society. Similar themes have surfaced in popular culture. In the 2014 movie Obvious Child, Donna, a struggling twenty-something, becomes pregnant after a one-night stand and decides to have an abortion. Donna’s decision is utterly devoid of the usual angst and drama that attends television and film depictions of similar scenarios. Indeed, she is matter-of-fact about the decision, never contemplating the possibility of raising the child herself or giving it up for adoption. More radically, Donna is no worse for the wear after her abortion. Indeed, she is pleased with her decision, confident that it was the right choice for her.

Amidst these popular efforts to recast abortion in a more positive light comes Khiara Bridges’s excellent article, When Pregnancy is an Injury: Rape, Law, and Culture. In the piece, Bridges considers criminal sexual assault statutes that characterize a pregnancy that results from rape as an injury—beyond the rape itself—to the victim. As Bridges observes, these criminal statutes are notable not simply because they identify those circumstances in which the crime of rape is aggravated and subject to heightened penalties; but because they construct pregnancy as an injury to women. As Bridges explains, the construction of pregnancy as an injury “runs counter to positive constructions of pregnancy within culture.” But it is not just that these criminal statutes disrupt the conventional narrative of pregnancy as a beautiful and blessed experience; by reframing pregnancy as an injury, the criminal sexual assault statutes also provide us with an opportunity to reconceive abortion as “a healing modality, serving to heal a woman of her injury.”

There is much to admire about this article. Unlike much of reproductive rights scholarship, which often focuses on doctrinal developments in the law, the article takes an anthropological approach, documenting the interaction between law and culture in constructing the ways in which we understand pregnancy and abortion. In so doing, the article yields trenchant insights about the role that law may play in shaping our cultural understandings of abortion and pregnancy and vice versa. For example, in discussing the range of sexual assault statutes that provide for heightened penalties when a rape results in pregnancy, Bridges makes clear that the statutes are “somewhat exceptional because . . . [they] reflect subversive understandings of pregnancy” that are at odds with prevailing cultural and legal views, which celebrate pregnancy as a good thing for women, even in circumstances where pregnancy is unwanted and unplanned.

To underscore this point, Bridges canvasses a range of legal contexts where pregnancy, despite its risks and challenges, is almost always figured as a good thing. Consider cases of wrongful pregnancy or wrongful conception, where parents sue after a provider’s negligence results in an unwanted pregnancy. In these cases, courts do not “recognize that a woman who bears a pregnancy only because of the negligent provision of contraceptives or a negligently performed abortion or sterilization—that is, a woman who bears an unwanted pregnancy—experiences that pregnancy as an injury.” Instead, the injury that courts do recognize is the denial of one’s reproductive rights and the economic costs associated with pregnancy. Through this selective recognition, Bridges argues, law subtly asserts that “pregnancy itself is a good thing.” That is, even as it shifts the “monetary costs associated with pregnancy,” law stubbornly insists on framing pregnancy as a benefit to women. Certainly, it is a benefit that “may result in some burdens . . . . [b]ut it is not an injury.”

To be sure, there are contexts where pregnancy is framed more ambivalently or even negatively—the pregnancies of women on public assistance and the pregnancies of women employees, come to mind. But even in these contexts, the negative framing does not render a more accurate account of women’s experiences of pregnancy. In these contexts, Bridges explains, the injury of pregnancy is not an injury to the woman, but rather an injury to the body politic—the public or public resources. In this way, even these negative treatments of pregnancy underscore the larger cultural message that pregnancy is a positive experience for women.

And because pregnancy is framed as a positive experience, abortion is necessarily framed as a negative experience. It is the quintessential injury—one that not only harms the fetus, but also injures the woman herself. In this way, Bridges argues, law helps to shape a cultural narrative in which a woman’s interest in abortion is stigmatized and delegitimized.

On this account, the sexual assault statutes’s view of pregnancy as an injury is not just subversive in the way it reframes pregnancy; it also undermines the prevailing view of abortion. In stark contrast to Gonzales v. Carhart, where abortion is presented as a danger from which women must be protected, the reframing of pregnancy as an injury allows abortion to be recast as a means of healing the injury of pregnancy. In this regard, pregnancy as an injury has the radical potential to shift the nature of abortion discourse. If abortion is recast as a healing modality, then the procedure itself—and the woman’s desire for it—is not a much-regretted choice that causes profound anxiety and despair, but rather, is a legitimate choice that may be positively experienced. In this way, refocusing our discourse to accurately reflect the bitter and the sweet of pregnancy allows law to better understand and reflect women’s interest in, and experiences of, abortion.

But what is perhaps most interesting about this article is that it makes clear that the reframing of pregnancy and abortion that it champions is not necessarily new. As Bridges explains, early pro-choice advocacy explicitly characterized unwanted pregnancy as an injury and abortion as a means of healing that injury. However, as anti-abortion advocacy shifted from emphasizing abortion’s harm to the fetus toward emphasizing the perceived harms of abortion for women, this earlier understanding of pregnancy and abortion fell out of favor—and out of our collective memory. By unearthing this lost view of pregnancy in (of all places) sexual assault statutes, Bridges makes clear that these arguments were once a vibrant part of pro-choice advocacy—and that they could be once again.



  1. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694 (2008). []
  2. 550 U.S. 124, 128 (2007). []
Cite as: Melissa Murray, Reframing (and Reclaiming) Pregnancy and Abortion, JOTWELL (May 22, 2015) (reviewing Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013)), https://family.jotwell.com/reframing-and-reclaiming-pregnancy-and-abortion/.
 
 

Restructuring Family Law

Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.

In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families.

In contrast, when the law regulates the family intentionally, it often does so in what Huntington characterizes as a “reactive” mode. Families encounter the law when they are in crisis—for example, at divorce, or when a shared parenting arrangement has broken down, or when family bonds have been eroded by violence. The state then enters to solve—or, at least, adjudicate—the problem, and then disappears once a resolution appears to have been achieved. But by then this intervention may be too little, too late. Family relationships have become adversarial, and a litigation model of dispute resolution only exacerbates the breakdown in trust and communication that the family is already experiencing.

Huntington proposes a radically different model, one in which the state’s aim is not to intervene in crisis, but instead to assist families in flourishing from their inceptions to their breakdowns to their repair. Unlike traditional family law, under Huntington’s model the state might be purposefully involved in a family’s life during many phases of its existence. Huntington draws on positive psychology, a field that studies the conditions that lead to human flourishing, rather than focusing on disease and dysfunction. If we can figure out what makes families flourish, she argues, we can craft state interventions that support families rather than working to undermine them.

The proposals that Huntington develops using this model are varied and paradigm-shifting. Some of her interventions would happen early in the family formation process. She would, for example, involve the state in assisting new parents. Rather than waiting for an individual to fail (by, for example, committing child abuse or neglect) and then intervening to terminate the parent’s rights, the state would instead proactively assist a new parent, especially those most at risk of committing abuse or neglect, by providing education and hands-on assistance early in the child’s life. Just as a good diet and exercise can prevent long-term medical problems down the road, so can early intervention prevent family crisis. As a real-world example of this type of program, Huntington describes the Nurse-Family Partnership, a program now serving first-time mothers and their infants in forty-three states. The program provides at-risk mothers with in-home visits beginning in pregnancy and lasting through the first two years of the child’s life, parenting skills training, and counseling to assist mothers with educational and career planning.

Huntington also advocates for other methods of state involvement with an eye to fostering family strength. She is a particular fan of the “New Urbanism,” an architectural and planning movement that encourages the building of new communities, and revitalization of older ones, so that housing, schools, shopping, and parks are all located within a short walk of each other. Huntington calls this “shrinking the home, work and school triangle,” and the effects on families can be very positive. Walking outdoors leads to friendships with neighbors, which in turn leads to networks that can provide shared child care arrangements, support during difficult times, and increased neighborhood safety. Huntington also takes on the current impediments to the formation of long-term relationships, especially in poor communities, including the high incarceration rates of African-American men and marriage penalties built into means-tested government programs. Access to free contraception and education, she argues, can also help women to delay childrearing until they have found a stable partner. Finally, legal recognition of a broader range of families than the traditional nuclear family would lead to greater stability for those families.

Not all of Huntington’s proposals focus on early intervention. Instead, some of the reforms she espouses are aimed at changing the way the state intervenes when a family is in crisis. Huntington observes that the current system assumes a conflict and resolution, but that most divorce and custody disputes do not match this model. Again drawing on psychological research, she argues that the law circumvents a key step in the cycle of intimacy, which includes a period of guilt followed by repair. Courts focus more on assigning blame and creating a “clean break” to relationships. This emphasis can disrupt the natural cycle of repair and prevent a former couple from becoming effective co-parents. In any divorce or break-up where children are involved, the relationship between the parents does not actually end. Instead, it must be transformed into something new. Huntington urges that we pay more attention to the relationships that will continue to persist after legal action ends and to encourage the divorce and custody dispute process to be less adversarial, through reforms in family law teaching, legal practice, and the adoption of new approaches to dispute resolution, such as the collaborative lawyering movement.

Huntington recognizes that a primary objection to her proposals may be that it puts too much faith in the state at the expense of family autonomy. She counters this objection with the observation that the state already pervasively regulates families. The question, she argues, is not whether the state will be involved in family life—we can’t escape that—but instead how. Her goal is to “redirect the pervasive state so that it encourages strong, stable, positive relationships within the family.” Getting there will require extraordinary efforts on many fronts. Huntington’s book gives us the roadmap for how to begin.

Cite as: Kerry Abrams, Restructuring Family Law, JOTWELL (April 20, 2015) (reviewing Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014)), https://family.jotwell.com/restructuring-family-law/.
 
 

Can the Supportive State be Non-intrusive?

Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014).

Two truths that feminists hold to be self-evident are: (1) that this society requires a more pro-active, supportive state that recognizes the fact of dependency and assumes some responsibility for the needs that dependency creates; and (2) that when the state intervenes in the lives of poor, minority women, it discriminates against and penalizes those most in need of its support. Advocates of each proposition generally also adhere to the other as if the two propositions were completely compatible: Those making the case for a supportive state adopt as a principal goal the reduction of society’s profound inequalities,1 while critics of the state’s discriminatory intrusions into the lives of the poor take for granted the necessity for state interventions to address dependency.2

Wendy Bach’s article advances both propositions sympathetically—so sympathetically that the reader initially might understand the article to be primarily a celebration of the convergences in feminist insight. But read on. The work is, above all else, a caution. The case for a supportive state is a powerful one, she argues; yet current institutional realities mean that state-sponsored programs typically make women more vulnerable, not less. This is not inevitable, she argues, but to avoid it, reformers need to pay more attention to the specificity of the mechanisms the state employs. Otherwise, Bach argues, calls for a more supportive state may yield measures making it easier for middle-class women to work and raise children, but they won’t dismantle the punitive mechanisms that so acutely affect poor women and minorities. (P. 329).

Most of Bach’s article is aimed at deepening our understanding of the institutional realities of poor women’s lives. In furtherance of this goal, Bach identifies a phenomenon she calls “regulatory intersectionality,” which refers to the interlocking nature of state’s social welfare apparatus and its criminal justice process. These systems, she argues, act in concert. “[I]nformation that is deemed to indicate non-compliant and/or deviant conduct travels from the original social welfare system into other even more punitive systems,” where it functions “to impose ever-heightening penalties on the families that seek assistance.” (P. 337). The result is a network of hyperregulation that is highly targeted by class, race, and place.3

The examples Bach uses to establish the phenomenon of regulatory intersectionality are familiar ones—mandatory drug testing of pregnant women and referrals of women who test positive to the criminal justice system; child protection interventions that systematically penalize minority families for their poverty; and welfare conditions (including more drug testing) that invade the privacy rights and security of these same families. In each of these regulatory areas, she argues, the problem is not simply that a state committed to the principles of free market economics, autonomy and self-reliance wrong-headedly ignores dependency and vulnerability, but also that the state’s interventions typically expose women to “more and more . . . punishment and social control.” (P. 368).

Is it too much to expect a state to be both supportive and non-intrusive? Bach concludes that it is possible, and that if privileged women put themselves in the shoes of the poorest, most vulnerable women, it would be “not so difficult after all” to imagine what form that support should take. (P. 379). This imagining leads to Bach to favor programs that are more universal in scope, like the Earned Income Tax Credit, as well as “more privacy protections and higher bars on surveillance and monitoring,” “higher walls between support system and punishment systems,” and “significant caution in the face of calls for coordination and collaboration.” (P. 376).

Bach’s article is an important heads-up to family law reformers who view a more supportive state as the route to greater equity for women and families. Indeed, the challenge Bach poses is so daunting that it is not clear that the solutions she herself offers are sufficiently robust to address it. What this article reminds us, however, is that without greater sensitivity to the damage a “supportive state” can wreak, efforts in the name of the supportive state may end up doing more harm than good.



  1. See, e.g., Martha Fineman, The Autonomy Myth: A Theory of Dependency (2004); Maxine Eichner, The Supportive State: Families, Government and American’s Political Ideals (2010); Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014). []
  2. See, e.g., Dorothy Roberts, Welfare Reform and Economic Freedom: Low-Income Mothers’ Decision About Work At Home and in the Marketplace, 44 Santa Clara L. Rev. 1029 (2004); Shattered Bonds: The Color of Child Welfare (2002); Kaaryn Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (2011); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009). []
  3. Bach at 335-6, quoting Frank Rudy Cooper, Hyper-Incarceration as a Multidimensional Attack: Replying to Angela Harris Through the Wire, 37 Wash. U. J.L. & Pol’y 67, 68-69 (2011). []
Cite as: Katharine Bartlett, Can the Supportive State be Non-intrusive?, JOTWELL (March 24, 2015) (reviewing Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014)), https://family.jotwell.com/can-the-supportive-state-be-non-intrusive/.
 
 

The Limited Vision of Neoliberal Family Law

Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN.

The problem of economic inequality has become a staple of news, social media, and public commentary particularly since the aftermath of 2008 financial crisis. The growing gap between the one percent and the rest provided an issue around which public protests such as the Occupy movement could be organized. And while addressing the many effects of inequality is complicated in its particulars, the need for redistribution as a central legal and policy value has been evident to critical scholars. Redistribution in the form of better social safety nets, a more progressive taxation scheme, and the closing of loopholes all have become more commonplace policy prescriptions, although legislation on these issues has been slow to materialize. Family law scholars and activists have also suggested that reforming policies to ensure more support to families, such as paid family leave and assistance with child care, would also have beneficial effects for working parents and the country’s economic bottom line.1 Even as the United States lags behind all other industrial nations and many developing ones in providing these supports, legislating changes aimed at providing resources that “make family life possible” has been remarkably difficult. The question that lingers is why?

Anne Alstott’s essay, Neoliberalism in in U.S. Family Law, offers an answer. Alstott argues that neoliberalism, which she defines broadly as a commitment to free markets and laissez-faire economics coupled with a commitment to negative liberty and a minimal state, makes it nearly impossible to claim any positive rights and distribution of resources from the government. She explores the pervasiveness of neoliberalism in three areas of family law –federal constitutional law, state family law, and federal and state welfare law — deftly drawing connections among these discrete doctrinal fields to advance her central argument:

The entrenched neoliberalism of family law is frustrating for many reasons, not least because it blocks sustained consideration of a more appealing liberalism. Negative liberty, as important as it is, is insufficient for justice. We can imagine—indeed, other countries have adopted—constitutional interpretations that convey positive rights. We can also imagine—and again, other countries have enacted—law that looks beyond the minimalist task of settling private disputes and instead aims to correct market distributions and promote a family life open to all. (P. 26).

In other words, the law continues to maintain the view that families are best served with minimal regulation from the government and that private ordering or free market resource allocation is preferable to government-imposed redistribution. These two pillars of neoliberalism are reflected in the legal decisions and enactments that frame the family in the United States.

Part II of Alstott’s essay explores the minimal state and negative liberty in federal constitutional family law. She juxtaposes the numerous decisions that sound in negative liberty, which prevent the government from intruding upon familial privacy (Loving, Griswold, Roe v. Wade, and Lawrence), infringing parental rights (Meyers and Pierce), and allow it to deny any duty to protect vunerable individuals within families (DeShaney) with decisions denying rights to resources. She argues that while negative rights like privacy receive strict scrutiny, positive rights and distributive policies like welfare and taxation receive only rational basis review, nearly immunizing them from constitutional challenge. For instance, examining the welfare cases, Alstott demonstrates that there is no positive right to state support. The state can cap welfare benefits without regard to family size (Dandridge v. Williams), refuse to provide public housing or adequate schooling, and limit the amount of time a recipient can receive public assistance. Moreover, the state can deny benefits to children because of the actions of their parents. Even a landmark victory for welfare recipients such as Goldberg v. Kelly only guarantees a procedural right to be heard before the termination of welfare benefits—it does not assure a right to substantive benefits. Viewing the jurisprudence of negative liberty and welfare rights in tandem, Alstott argues that there is an “asymmetric pattern of federal constitutional protections for family life.” (P. 29). In other words, these two lines of decisions harmonize in such a way that even though one has a right to family, one has no right to the resources required to sustain that family. Indeed, there is no right to the resources needed “to marry, to divorce, or even to remain alive….” (P. 29).

Unfortunately, the family fares no better at the subconstitutional level. In Part III of the essay, Alstott demonstrates how state family law privileges private ordering by reinforcing market outcomes and forcing families to bear the costs of reproducing society and the next generation of Americans. Further, between spouses, the state has come to demand private negotiation and ordering as marriage has evolved from a status to contract. With the advent of no-fault divorce and legislation encouraging divorcing couples to reach agreement on matters of property, support and child custody, the state continues to place the onus on achieving justice at dissolution on private, supposedly bargained-for, settlements. While there are limits to what can be negotiated—for instance, a parent cannot bargain away a child’s right to support—on most other issues that arise in divorce settlements, the courts rubber-stamp agreements without much inquiry into the ultimate fairness or justice of the outcomes.

Alstott raises a number of critical questions that are prompted by the state’s preference for private ordering. As an initial matter, she challenges the pervasive assumption that most families have resources that can be allocated through negotiation. As she explains, most families have few material resources and struggle to support themselves, particularly in economically perilous times. At dissolution, with the loss of economies of scale, these difficulties are compounded. If spouses strike poor bargains for support, or are unable to secure any support because of poverty, they are left to shift for themselves and to subsist on inadequate government support. Even in these dire circumstances, neoliberal assumptions regarding individual choice and agency result in the forced internalization of consequences. The state requires parents who cannot afford to support their children to bear most of the costs of their poor choices or bad luck. Women who trade away support in order to gain child custody are left to support their children the best they can with minimal state intervention or assistance. Poverty becomes an individual moral failing that must be borne by the responsible party.

This depressing outlook makes clear that the family, rather than the state, has become the main institution responsible for the welfare of citizens. As Alstott points out, “welfare programs in the United States provide only minimal and grudging resources for family life.” (P. 38). No resources are constitutionally mandated and those that are provided come with erosions of privacy and increasingly onerous requirements like mandatory drug testing, employment, and lack of a criminal record. Poverty alleviation programs have been eroded over time and continue to reinforce the neoliberal vision of individual merit and industriousness as the best way out of difficult circumstances. Moreover, unemployment benefits and Social Security rewards those who have had on-the-books employment, thereby precluding from their ambit some of the most vulnerable people in our society. The recently enacted Affordable Care Act (ACA) continues this trend by balancing neoliberal ideas with expanding access for the poor. The ACA provides health care benefits to middle class workers “by relying on private-market insurance providers.” Those who are unemployed or otherwise ineligible for coverage through their employers are provided with government subsidies that allow them to purchase insurance coverage privately. In this way, although the program expands health care coverage, the provision of health care is secured through privatization, rather than the expansion of the public safety net. Likewise, public education, perhaps the cornerstone of what might be called a “welfare state,” has been critiqued for being unequal, increasingly racially divided, and inadequate.

Alstott argues that negative liberty, the free market, and the minimal state have not insured the wellbeing of families. In the absence of positive constitutional rights to state support, families are left to divide market earnings and courts are left to adjudicate claims among individuals in the family. The law will not “aim to correct market distributions and promote a family life open to all”. (P. 26). Without the space for a more expansive vision of the state’s role in the family and adequate provision of support for those who are economically underprivileged, the forced internalization of the costs of reproducing the next generation, the care of elders, and shifting of welfare functions to the family will result in continued increases in inequality and social stratification.2 Alstott’s critique is a welcome addition to a body of literature generated by material feminists and progressives outlining the inadequacies of negative liberty, formal equality, and the erosion of the welfare state. Critical race feminists have further argued that the lack of state support for families disproportionately impacts racial minorities and that inequality is widening along racial lines. Here, Alstott’s approach analyzes family and welfare jurisprudence and legislative developments in tandem to draw connections that reveal how the two fields maintain neoliberalism and prevent progressive attempts at redistribution. In so doing, she offers a valuable corrective to the isolated analyses that currently prevail. Elaborating the argument to include analysis of the structural impediments that minorities confront would complete the unfortunately dismal picture.

 

 



  1. See e.g., Anne L. Alstott, Private Tragedies? Family Law as Social Insurance, 4 Harv. L. & Pol’y Rev. 3 (2009). []
  2. See e.g., Bruce Western et al., Inequality Among American Families with Children, 1975-2005, available at http://scholar.harvard.edu/brucewestern/files/fqant08.pdf. []
Cite as: Cyra Choudhury, The Limited Vision of Neoliberal Family Law, JOTWELL (February 18, 2015) (reviewing Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN), https://family.jotwell.com/the-limited-vision-of-neoliberal-family-law/.