The slippery relationship between status and conduct has preoccupied scholars, activists, and courts for many years. At various points, state and private actors have avoided claims of unlawful discrimination by disaggregating status from conduct—claiming that they have singled out individuals for unfavorable treatment based not on protected identity but rather on objectionable and unprotected acts. In Intimate Liberties and Antidiscrimination Law, Deborah Widiss uncovers the extensive reach of this status-conduct argument, persuasively urges actors in the legal system to abandon it, and elaborates the implications of that abandonment for current conflicts over the scope of antidiscrimination law.
Perhaps nowhere has the status-conduct distinction been more prominent than in the realm of sexual orientation. In Bowers v. Hardwick, the 1986 decision upholding anti-sodomy laws against constitutional challenge, the U.S. Supreme Court refused to identify “homosexual conduct” as a protected liberty. After Bowers, LGBT rights advocates attempted to disaggregate conduct from status, even though they understood same-sex sex as inextricably linked to lesbian and gay identity. Advocates would contend that even though the government could criminalize the underlying conduct, it should not be permitted to discriminate against people based on their status as lesbian or gay. This strategy yielded mixed results. As the D.C. Circuit reasoned in 1987, “If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious.”
In 2003, in Lawrence v. Texas, the Court repudiated Bowers and its status-conduct distinction, as it ruled that same-sex sex is a liberty protected by the Fourteenth Amendment’s Due Process Clause. Writing for the Court, Justice Kennedy explained how the prohibition on conduct produced substantial status-based harms: “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” In a concurring opinion rooted in equal protection principles, Justice O’Connor rejected the status-conduct distinction that had hampered LGBT rights claims for many years: Because “the conduct targeted by this law is conduct that is closely correlated with being homosexual . . . , Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.” In its 2010 decision in Christian Legal Society v. Martinez, the Court summed up how far it had traveled, explaining that its recent decisions “have declined to distinguish between status and conduct in this context.”
While this record suggests that the status-conduct distinction that blocked LGBT progress has been relegated to the dustbin of history, Widiss’s article reveals that the status-conduct argument—with its power to disarm claims to equality—persists. Consider claims to religious exemption arising in the context of same-sex marriage. The religious claimant, Widiss shows, articulates an objection to conduct—same-sex marriage—and not status. Indeed, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, currently pending before the Supreme Court, Jack Phillips argues that he does not discriminate based on sexual orientation; indeed, he would happily serve lesbian and gay individuals. It is same-sex marriage to which he objects.
This distinction between lesbian and gay identity, on one hand, and same-sex marriage, on the other hand, is in important ways an updated version of the status-conduct distinction that pervaded the era of anti-sodomy laws. As I have documented, many of the objections that have been characterized as objections to same-sex marriage have in fact included general objections to same-sex relationships, whether marital or not. From this perspective, we can understand same-sex marriages as merely a subset of same-sex relationships. And same-sex relationships represent the very enactment of lesbian or gay identity. Through this lens, the same-sex marriage objection is properly understood as an objection to status, not simply to conduct.
Widiss shows us that the status-conduct distinction that has emerged in the same-sex marriage context pervades antidiscrimination law. Indeed, she notes how the arguments in Masterpiece Cakeshop are underwritten by earlier decisions on marital status discrimination. In the closing decades of the twentieth century, some state courts “held that landlords could refuse to rent to cohabiting couples because that decision simply reflected disapproval of ‘conduct’ (i.e., non-marital intimacy), rather than impermissible marital status discrimination.” (P. 2087.) More recently, “courts have similarly reasoned that discrimination on the basis of pregnancy is illegal sex discrimination, but discrimination against a pregnant woman premised on her having engaged in non-marital sex is permissible.” (P. 2087.)
Widiss persuasively attacks the status-conduct distinction on both conceptual and doctrinal grounds. Just as “[s]exual orientation is defined by actual or desired partners for sexual intimacy,” “[m]arital status is defined by choices regarding whether and when to marry. And pregnancy, including non-marital pregnancy, is the physical manifestation of sexual intimacy and choices regarding procreation and contraception.” (P. 2088.) Not only does the status-conduct distinction miss the deep connection between identity and acts in these settings, it reads into the relevant nondiscrimination statutes an unnecessary and harmful limit. Here, Widiss argues that modern constitutional law is relevant to the interpretation and application of private antidiscrimination law. Decisions on abortion, contraception, and same-sex sex demonstrate how conduct protected as fundamental for due process purposes is deeply connected to identity. And, whereas Lawrence demonstrates that criminalization of intimate conduct can fuel private discrimination, Widiss asserts that “permitting private discrimination can undermine individuals’ freedom to exercise fundamental liberties.” (P. 2089.)
The connection between protected conduct in constitutional law and protected status in antidiscrimination law is relevant not only to interpretive considerations but also to the weight of the interest the government seeks to vindicate through the nondiscrimination mandate’s enforcement. On Widiss’s account, given that fundamental rights are at stake, shielding from discrimination those who exercise such rights should be deemed a compelling governmental interest.
These insights, in Widiss’s framework, guide resolution of contemporary claims to religious exemption from antidiscrimination law. First, courts should understand the religious objection against same-sex marriage, unmarried cohabitation, and non-marital pregnancy as a status-based objection covered by antidiscrimination mandates that include sexual orientation, marital status, and pregnancy. Second, courts should understand unencumbered enforcement of the law as necessary to further the compelling governmental interest in preventing discrimination.
In all, Intimate Liberties and Antidiscrimination Law presents both an insightful conceptual argument and a convincing doctrinal intervention. Widiss disarms the status-conduct arguments that for too long have obscured discrimination based on sexual orientation, marital status, and pregnancy. And she tightly connects the constitutional principles that animate the Court’s protection of intimate conduct to questions of interpretation and enforcement in antidiscrimination law.
Domenico Starnone, Ties
(translated by Jhumpa Lahiri, 2017).
“Happy families are all alike; every unhappy family is unhappy in its own way.”
(Come on, you know who said this)
Family law, in the limited way we have construed it over the last eighty years or so, deals almost entirely in unhappy families. When the law comes in it is separation, divorce, or restraining order time, custody determination, child support, abuse and neglect time. Happy memories are in the past, and the only thing that remains is an accounting, whose apparent aim is to make possible a—legally—bearable life in the future.
Yet family law tries to defy Tolstoy’s observations about unhappy families. It attempts to categorize and systematize types of unhappiness, put them in boxes to make them manageable by judicial or administrative fiat. The attempt, no matter how necessary, often proves to be just that, an attempt, incomplete and even incoherent. The messy incommensurability of intimate relations often forces family law to crack at the doctrinal seams, allowing infinite variations of family unhappiness to burst out without much hope of systematic categorization or containment. How else can we grapple with the “best interests of the child” standard, for example, with its grand gesture towards certainty and a concurrent knowing wink about the impossibility of predicting the future? Even the past, theoretically more knowable than the future, flickers in and out of focus in doctrinal vehicles as mysterious as “irretrievable breakdown,” which—inevitably—become the equivalent to a judicial rubber stamp on a decision already made, rather than a coherent description of a set of events in the world.
Ties, a short novel by Domenico Starnone translated from the Italian by Jhumpa Lahiri, delves deeply into the world of a seemingly irretrievable breakdown. It provides a field trip away from what sometimes feels like the fictional world of doctrine and into the real world of fiction, where the human characters of marital breakups and reconciliations reside. It challenges family law scholars to reflect upon the gap between the messy humanity entailed in private lives and the Sisyphean legal task of imposing order through doctrine. It challenges us to reflect upon the role that law plays and could be playing in the messy human process of building, destroying and rebuilding intimacies.
The story begins with a marital breakup, narrated in the first part of the novel in the powerful and commanding voice of the abandoned wife: “In case it’s slipped your mind, Dear Sir, let me remind you: I am your wife.” (P. 23.) It is the voice of a 34-year-old wife and mother of two, writing a series of letters to her philandering husband in the wake of his abandonment. The year is 1974, the place is Naples, Italy. Aldo, the 32-year-old husband has fallen in love and run off with a much younger woman and the fantasy of reinvention that she represents, leaving his wife, Vanda, alone to fend for herself and the children. Her voice grabs the reader from the very first page, the seeming victim in a crime of the heart that strikes as unnecessarily cruel in the details of its execution.
The letters, nine in total and spanning four years in time, pulse with anger, grief, vindictiveness, resignation, calculation, sadism, fear. Here she pleads: “as soon as you read this letter, come home” and “have you forgotten that I don’t have a job?”; there she threatens: “Aldo be careful. If I start to lose it, I’ll make you pay”; and further she goes for the jugular, aiming at Aldo’s faltering sense of ego: “you’ll never be what you want, just what happens by chance.” Vanda’s voice occupies the first of three short books in the novel. It is the shortest one, yet her anguish and pain reverberate through the entire novel, echoing inside the remaining two books, which are the first-person narratives of Aldo and Anna, the traumatized daughter, by the time of her intervention a struggling adult.
At the end of the first book, Vanda’s letters have left us with an indelible impression of an “irretrievable breakdown,” a wound so deep that it would by unimaginable for healing to have taken place. And yet, Aldo, in the second book, takes us through the story of the couple’s eventual reconciliation. It is a story of guilt and remorse, especially for the destruction wrought upon his children. This is not so much an openly agreed upon reconciliation, as a gradual, almost stealthy return to the architecture of marriage, which has legally remained standing despite the actual separation.
The new relationship is built on solid ground. It is not the solid ground of love or happiness, but the eventually explosive building blocks of attrition and penance, mistrust and vindictiveness. Vanda, short-tempered and impatient, can barely stand to hear from Aldo; anything he says, anything he does, provokes her and her temper explodes. Her words are packed with bitterness and resentment, her actions echoes of the pained and angry voice at the beginning of the novel. Aldo, on his part, moves like an animal in retreat, tail between his legs, running for cover at the slightest indication of trouble. Theirs is a carefully curated relationship—one that must make room for the wife’s injured ego, and exclude certain things from view, such as Aldo’s continuing love for the lover he eventually leaves behind, or Vanda’s own lack of love for the husband she has now managed to reclaim. “From the crisis of many years ago we have both learned that we need to hide a great deal from each other, and tell each other even less. It’s worked.”
The image we have of the marriage changes yet again, Rashomon like, as we hear from Anna and Sandro, the couple’s children and the two innocent bystanders who are in turn instrumentalized and made complicit in their parents’ primordial battle. “The only ties that counted for our parents were the ones they’ve tortured each other with their whole lives”, Anna hurls at her brother with a vehemence reminiscent of Vanda’s own anger. It is a brief, heartbreaking part of the novel, a glimpse into the lasting effects of trauma and the depressingly repetitive nature of learned behavior, with some redemptive glimmers of hope shining through for the two adult children.
Law makes only a few direct appearances in the book. It remains always in the background, never the center of this battle for survival, and yet provides what seems to be an important backdrop in the context of the marriage. In 1970, the Italian Parliament passed a law allowing divorce, in a move that was understood as an assault on the Catholic Church’s position in Italy. The grounds were mostly fault based, with one exception: a legal separation that lasted five years could also provide a valid basis for a final divorce. This is an option that Aldo and Vanda seem uninterested in. However, after four years, Vanda finally sues Aldo for full custody of their children, an option that was also created for the first time by the 1970 law. She wins without a problem or even a fight from him. But she lacks any independent sources of income and can’t get him to pay up regularly for the support of the children. Here we are left to wonder whether the newly established provision on maintenance is not truly enforced properly, or whether Vanda is making an emphatic choice not to use the option given to her by the 1970 divorce statute. Instead, guilt-tripping Aldo is the means she deploys to the maximum. The fact that Aldo has been allowed to get away with impoverishing his family eventually weighs heavily on his conscience. It is one of the factors that, in his own recounting, lead him back to the marriage. In this regard, the background architecture of marriage—the expectation of support for vulnerable members of the family—which has not been jettisoned, even as the couple has physically separated, provides the stage that can house a return, without open discussion of the terms, only a gradual slipping back into the fold.
How would this story have turned out if the legal landscape were different? The sweeping changes in attitude highlighted by the pro-divorce movement in Italy of the time certainly seem to influence how Aldo initially feels about leaving his unhappy marriage. Would guilt and penance, two of the protagonists in this story, have managed such a central place in a legal universe of relatively easy exit and wage garnishing? Despite the change in legal rules, it is still a relatively difficult and costly way to the marital exit. Would guilt be so prominent in a legal universe of no fault divorce? Would reconciliation have managed to garner such power in the minds of these two unhappy spouses, if it weren’t backed by the symbolic power of the legal system for which it remained the preferred happy outcome? Or would these two have chosen an entirely different script for their story? One in which they each go their own way rather than attempt to reconstruct something from the pieces of their broken relationship?
These are such compelling questions for me that I am tempted to assign the novel for class discussion at the very beginning of my family law class as a challenge and an invitation to think about the role of law in shaping intimate experience. I am even tempted to go one step further and use the storyline and characters for my regular divorce negotiation exercise. How does Vanda fare under a no-fault regime vs. a fault based one? How does Aldo fare? How does changing the background legal rules change the students’ understanding of what their “clients” might possibly want out of a potential divorce or separation negotiation? How does the world of the legally possible influence the world of the intimately felt?
Ties is a short but compelling invitation from the world of literature to contemplate the contours as well as the limits of law in shaping intimate experience.
Understood etymologically simply as “well born,” the term “eugenics” has over time evolved to take on different meanings in legal and bioethical debates surrounding reproduction. Eugenics originally referred to the set of practices that controlled—and grossly limited—reproduction during late-nineteenth and early-twentieth-century America. (Pp. 28-53.) More recently, eugenics has described the use of embryonic screening technologies by prospective parents purportedly driven by a desire to master nature and perfect procreation. (Pp. 184-93.) Historically, our understanding of eugenics focused mostly on the state’s coercive power over its citizens’ reproductive choices through nefarious practices like mandatory sterilization. By contrast, the more recent appeal to eugenics, known as “liberal eugenics” or “neoeugenics,” captured instead private procreative decision-making in a world of rapidly advancing alternative reproductive technology (ART). (P. 185.)
In The New Eugenics: Selective Breeding in an Era of Reproductive Technologies, Judith Daar argues for a different understanding of eugenics, one which, as Daar’s title suggests, she calls the “new eugenics.” The new eugenics, Daar argues, comprises the contemporary state and private practices that either actually or effectively exclude certain populations from accessing—and therefore forming families through—alternative reproductive technologies like in vitro fertilization, alternative insemination, and surrogacy. Daar’s “new eugenics” exhibits some of the aspects of the early eugenics program in the United States, representing as it does a set of practices that are “fueled” by concerns relating to science, tradition, and economics—concerns that often are “celebratory of majoritarian values, messaging that minority populations and their offspring are less deserving of access to fertility care.” (P. 52.) Moreover, Daar is careful to distinguish her conception of the “new eugenics” from neoeugenics. Critics of neoeugenics, she says, equate the voluntary procreative decision-making of prospective parents today with the coercive reproductive programs of former times. (P.185.) ((See, e.g., Michael J. Sandel, The Case Against Perfection: Ethics in the Age of Genetic Engineering 70 (2007) (arguing that “even where no coercion is involved, there is something wrong with the ambition, be it individual or collective, to determine the genetic characteristics of our progeny by deliberate design”).)) In so doing, she contends, these critics miss “the true eugenic nature of modern reproductive technologies,” namely, “the inability of a significant number of would-be parents” to access them and thereby “achieve parenthood.” (P. 185, note 1.) (Emphasis added.)
After discussing the alternative “reproductive revolution” in chapter 1 (Pp. 1-27) and situating it briefly within “our eugenics past” in chapter 2 (P. 28-53), Daar proceeds in the next four chapters of her book to catalogue and elaborate on the contemporary barriers that curtail reproductive access and that together amount to a “new eugenics” comprised of acts both state and private, formal and informal, intentional and unintentional. (P. 26.) She starts in chapter 3 with perhaps the most significant barrier to reproductive access: the cost barrier, or what she calls “the eugenics of cost.”(P. 70.) Resulting in “stratifying access to ART along socioeconomic lines,” (P. 70) the ART cost barrier is the result of state action (very few states mandate health insurance for fertility treatment, and those that do include in their laws a number of exclusions and conditions that screen many individuals out (Pp. 63-70) no less than private action (ART providers routinely turn away patients “who derive some or all of their income from public sources,” (P. 71) and some surrogacy agencies will not accept women receiving state assistance as eligible surrogates (P. 73)). The three succeeding chapters turn to formal and informal barriers to ART access that result in stratification by race and ethnicity, by marital status and sexual orientation, and by disability, respectively. Together, these forms of exclusion harm individuals as well as society more generally, depriving the former of constitutionally-guaranteed procreative liberty (Pp. 52-60) and degrading the latter by reflecting and reproducing a system that is “dangerously reminiscent of our eugenics past.” (P. 180.)
In addition to providing a comprehensive taxonomy of the myriad forms that exclusionary reproductive practices assume, Daar’s book nicely develops a eugenics lens or “trope” that helps bring into focus precisely why certain alternative reproductive regulation is harmful: because such regulation attempts to perfect procreation by restricting reproductive liberty. (P. 180.) Such a lens is useful in critiquing laws requiring intended parents in surrogacy contracts to be married, (P. 129) as those laws subject alternative procreators to a procreative ideal—marital reproduction—from which sexual procreators are exempt. ((That is, no state requires sexual procreators to be married in order to procreate—nor punishes them for procreating outside of marriage when they do.)) It is also an important vantage point for assessing fertility clinic practices that exclude same-sex couples from reproductive services, as such practices subject alternative procreators to a procreative and parenting ideal of dual-gender parenthood. Indeed, such a lens is helpful in critiquing the critique of contemporary ART as neoeugenic, as it allows us to see that arguments denouncing alternative reproduction for attempting to perfect procreation in eugenic ways themselves rest on a particular vision of what procreation ought to look like: (somewhat) random and fully accepting of the “unbidden.” ((Sandel, supra note 1, at P. 46.))
As scholars increasingly uncover the extent which traditional family norms and ideals constitute the basis for contemporary (alternative) reproductive regulation, ((See, e.g., Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. (forthcoming 2017); Melissa Murray, Family Law’s Doctrines, 163 U. Pa. L. Rev. 1985 (2015); Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015).)) Daar’s eugenics trope offers an illuminating way to appraise that regulation’s ethical and constitutional infirmities. Laws that restrict surrogacy to married couples, or fertility practices and state insurance laws that screen out individuals on the basis of cost, disability, marital status, and/or sexual orientation, raise serious ethical and constitutional concern in an era of sexual orientation equality, familial pluralism, and robust reproductive liberty—norms that emerge from recent constitutional and family law jurisprudence relating to intimate and family life. Much scholarly appraisal of alternative reproduction has criticized it for attempting to perfect procreation through technologies and practices like preimplantation genetic diagnosis, rigorous sperm and egg donor selection, and gene editing. Daar’s framework offers us a promising opportunity to shift the focus in that debate by centering on the regulation, actual and proposed, of alternative reproduction—regulation that burdens alternative procreators, and only alternative procreators, with an ambition to perfect procreation and the parent/child relationship in ways and for reasons that are uncomfortably suggestive of our nominally repudiated “eugenics past.”
Barbara A. Atwood, The New UFLAA: Providing Needed Standards for Efficiency and Fairness
, 39(4) Family Advocate
38 (2017), available at SSRN
In July 2016, the Uniform Law Commission gave final approval to the Uniform Family Law Arbitration Act (UFLAA). Barbara Atwood was the drafting committee’s Chair and Linda Elrod was its Reporter. In The New UFLAA: Providing Needed Standards for Efficiency and Fairness, Professor Atwood offers an overview of the UFLAA’s history, the problems to which it responds, and the hard choices that had to be made in its drafting.
Arbitration has a bad reputation in large segments of the legal profession and legal academy. It is associated with provisions in consumer and employment agreements—mandatory arbitration with class action waivers meant to make challenges to improper behavior both private and impractical, and there are documented instances of the process being run by private arbitration companies with suspiciously one-sided win rates for the business or employer. It is also associated with Supreme Court decisions that have read the Federal Arbitration Act in controversially broad ways, in the process making it very hard to challenge arbitration provisions in court on grounds of unconscionability, lack of consent, or related grounds. Arbitration was also recently in the news when the Republican Congress and the current President combined to overturn a Consumer Financial Protection Bureau rule that would have limited use of such provisions in financial documents. Why would anyone want to have that unpopular mess in family law?
Atwood provides a compelling explanation to the naysayers. As she explains, just as family law agreements are distinct from commercial agreements, arbitration in the family law context is different from arbitration in the commercial context. Unlike commercial arbitration, which typically arises from mass-produced, take-it-or-leave it standardized forms (the boilerplate agreements that are part and parcel of credit card applications, cell phone contracts, and low-level corporate employment), family law arbitration generally emerges out of negotiations preceding separation or divorce, or as a term in a premarital, marital, or separation agreement. There is a hope that in the family law context, arbitration can offer the advantages frequently advertised on its behalf, without the problems that have arisen in (commercial) practice.
As Atwood notes, the non-public nature of arbitration might be especially attractive to disputing couples, and the process is often quicker and cheaper than litigation. At the same time, as Atwood points out, there is at least a tension, and perhaps a distinct misfit, between arbitration and family law. Typically, arbitration is accompanied by the absence of a record and very limited opportunities for judicial review. Understandably, family courts are reluctant to follow these typical arbitration procedures—at least for decisions affecting children (custody, relocation, child support), where the courts claim a strong parens patriae power and responsibility. While some might argue that arbitration could simply be modified to suit the particularities of the family law context, this too raises questions. Under the Supreme Court’s robust reading of the Federal Arbitration Act, it is unclear whether any modification of arbitration for family law purposes will be allowed.
Nevertheless, the UFLAA is intended to address these concerns in order to reap the benefits of arbitration in the family law context. As the article indicates, under the UFLAA, pre-dispute agreements to arbitrate child-related conflicts would generally need to be reaffirmed after the dispute arises to be valid; an arbitrator is required to request a verbatim recording of the parts of an arbitration hearing concerning child-related disputes; and arbitrators in family law cases would have the power to make temporary orders or awards. For most purposes, though, the UFLAA is meant to incorporate, or at least be consistent with existing state and federal arbitration procedures and standards.
The Article provides a clear description of this emerging development in family law. Also, as Atwood observes, the growing use and recognition of arbitration in family law should be seen alongside other developments in family law processes: including greater use of mediation and new experiments in many states with “collaborative law.” And the growing pluralism in family law procedure is even more evident when one adds in the distinction between secular and religious arbitration, and a seeming increase of the use of choice of law and choice of forum provisions in premarital, marital, and separation agreements. Professor Atwood’s article offers a useful overview of a new uniform law, as well as a good introduction to the alternative dispute resolution methods that are becoming ever more important in family law.
Scholars studying assisted reproductive technologies (ART) have long recognized its power to both challenge and reinscribe norms around reproduction and the family. In-vitro fertilization and surrogacy, for example, reveal that motherhood is not an inherently unitary construct, but is instead comprised of genetic, gestational, and affective ties. Scientific breakthroughs make it likely that, not too far in the future, technicians will be able to derive eggs and sperm from induced pluripotent stem cells, allowing them to create eggs from men and sperm from women. By decoupling sexual intercourse (and potentially biological sex itself) from reproduction, these past and future developments challenge foundational assumptions about the relationship between sex and the family. They have also expanded parenthood to people outside the traditional heterosexual dyad. But at the same time, ART fulfills the specific desire to create a genetic or biological parent-child relationship. It can therefore reinforce the mainstream ideologies of biogeneticism—belief in the importance, and even superiority, of biology and genetics in creating relationships and maintaining one’s identity—and repronormativity—the conceptualization of procreation as a biological imperative rather than a cultural preference.
It is this back edge of ART’s sword that Michael Boucai focuses on in his thoughtful article, Is Assisted Procreation an LGBT Right?. Boucai sheds light on the fact that in recent years, LGBT rights advocates have consistently argued that access to ART is an LGBT rights issue. The basic premise of argument is that LGBT individuals face special forms of infertility, whether hormonal/anatomical, or due to the nature of their intimate relationships. Barriers to ART, such as bans on remunerative surrogacy, therefore disproportionately burden the LGBT population, preventing full LGBT equality in parenthood. This embrace of ART troubles Boucai for several related reasons. First, advocates have largely ignored similar structural barriers to adoption facing members of the LGBT community. Second, arguments deployed in ART-focused advocacy tend to reify biological parenthood’s inordinate prestige by presuming that biological procreation is coextensive with family formation. The narrow focus on a fundamental right to procreate “carr[ies] a constant risk of glorifying biological reproduction at the expense of adoption,” while “invite[ing] judges to ensconce a preference for biological relationships in our family law and constitutional jurisprudence.” (Pp. 1123-1124).
Given that these critiques apply equally to non-LGBT, unassisted reproduction, what justifies the focus on LGBT parenting? After all, LGBT and non-LGBT people report similar motives for using ART, including a desire to “reproduce,” have a child of “one’s own flesh and blood,” to carry on their “ancestral line,” or to strengthen their intimate relationships by “mak[ing] a baby together.” Indeed, some reasons—like a desire for companionship in old age; to fit into extended family networks (for example, by providing a grandchild for Mom and Dad); or to attain parenthood’s promise of maturity, respectability, normalcy, and acceptance—may have even greater salience for people who have experienced exclusion from valued social institutions.
Boucai answers that the LGBT community has more to lose. From its beginnings, the modern gay rights movement emphasized a different model of kinship, one that was social and functionalist as opposed to biological and essentialist. In Boucai’s beautifully rendered conceptual and historical account, this queer kinship had its roots in LGBT people’s alienation from their genetic families and/or their “exclusion from patterns of love, marriage, and children upon which the dominant culture rests.” This dissociation from the traditional family provoked intellectual and political critiques of the reproductive family, and the development of social practices focused on one’s “chosen” family. Queer kinship arrangements united friends, lovers, and children in various combinations through “symbolic demonstrations of love, shared history, material or emotional assistance, and other signs of enduring solidarity.” LGBT adults formed informal relationships with children as honorary aunts and uncles, godparents, or mentors. When they adopted, they were more likely to pursue open adoptions, pushing back against the “as-if-genealogical” secrecy of closed adoptions. And they were more likely to adopt or foster “hard to place” children: those who are older, experiencing psychological or physical issues, or not the same race as the adoptive parents. Boucai argues that this ethic—that “love does not need blood to make a family”—was not “mere acquiescence to circumstance,” but a product of “a rich history of queer resistance, both personal and political, to the ideology of biogenetic kinship.” (P. 1106).
Framed in this way, the threat ART’s biogeneticism poses to queer kinship becomes manifest. Boucai proposes two interventions to mitigate the conflict. First, he argues that the LGBT movement’s pursuit of substantive equality in parenthood must expand its current focus on biogenetic parenthood to include adoption and alternative parenting arrangements. Boucai provides a litigation roadmap for bringing a disparate impact claim, identifying various reasons that LGBT people must depend more heavily on adoption to become parents, and the numerous structural impediments to adoption that disparately impact access. Second, he argues that attempts to secure a fundamental right to procreate through ART must avoid demeaning non-biological forms of parenting. Arguments based on the “heartrending image of a couple with but one ‘hope of procreating’ inevitably trades on a preference for biological children that most readers can be presumed to share. Most judges too.” (P. 1122).
These are thoughtful and practical interventions, and advocates ought to take notice. But one wonders, after reading his account, whether ART’s biogeneticism poses merely a conditional threat to queer kinship, or if it is in fact more existential. Boucai’s proposals would go some way to achieving the laudable goal of “correct[ing] the procreation/adoption hierarchy” without “invert[ing] it.” But what is the likelihood, without abandoning pro-ART advocacy entirely, that the LGBT movement will be able to resist biogeneticism’s normative pull? Although Boucai points to studies demonstrating that LGBT people are more enthusiastic about adoption than their straight counterparts, will access to privileged forms of reproduction eventually undercut that ethic?
In raising these questions, Boucai’s wonderful article contributes to a long-running discussion within the LGBT community. Can queer kinship survive queer respectability, or will it go the way of the gay bar, the gay bookstore, and the gayborhood itself? I suspect that Boucai himself has his doubts: the sunset of dissolution illuminates his account of the queer family with the aura of nostalgia. Predictions aside, Boucai makes a compelling argument that the least we can do is try.
Editor’s note: for an earlier review, see Douglas NeJaime, Biological and Social Approaches to the LGBT Family, JOTWELL (April 26, 2017).
On the first day of my Family Law class, when discussing my goals for the semester, I tell students that even if they do not practice in the area of family law, the class will be helpful for them because of how directly family law impacts everyday life. The impact of other areas of law is typically more attenuated, and of the legal fields that also operate directly upon individuals—tax and criminal law come to mind—family law is the topic that is both omnipresent and often joyfully applicable, as when a couple marries.
Beyond the direct interventions in our relationships, however, family law sends implicit messages about society’s expectations for familial relationships. These messages can be difficult to uncover and even more complex to address. Holning Lau’s article Shaping Expectations About Dads as Caregivers: Toward an Ecological Approach is a refreshingly clear contribution, drawing upon his experiences as a new father as a springboard for legal reform.
Lau and his husband recently adopted a baby girl, and his article begins by describing a number of experiences undercutting Lau’s role as an engaged, caregiving parent. He notes that he was lucky to be able to take advantage of a generous family leave policy, an option not available to most parents regardless of their gender. But during his time on leave from teaching responsibilities, Lau faced myriad small but direct messages that assumed caregiving parents were all female. When outside of his home, he faced difficulty finding men’s bathrooms with changing tables—when out to a meal to celebrate Father’s Day, a restaurant owner apologized and offered to let Lau use the women’s bathroom changing table instead. Looking for activities for his daughter, Lau noted most of the classes intended for infants were called “Mommy and Me,” rather than a gender neutral term. This was in keeping with the vast majority of baby product advertisements, which targeted mothers rather than all parents. Conversely, when Lau wasn’t being ignored as a parent, he was being singled out as doing something unusual, as when he and his husband were complimented by strangers for “babysitting” when they ran errands with their daughter.
After chronicling some of his experiences, Lau outlines the broader effects of such microaggressions. Caregiving fathers feel alienated as they are constantly singled out as different. Fathers or potential fathers deciding whether to take on significant caregiving work are nudged away from doing so. Just as men are pushed away from caregiving, women are pushed towards taking on the caregiving work. Societal expectations and individual choices become a self-fulfilling cycle: because more women are the primary caregiver, we assume all primary caregivers are women, which pressures new parents towards fulfilling the stereotype.
One reason Lau’s article is so persuasive is because of the personal narrative he includes in explaining the problem he seeks to address. I have written about the cultural messages sent to caregiving fathers as have Beth Burkstrand-Reid and Nancy Dowd among many others. But for reasons likely made obvious by our first names, we cannot provide first-hand examples of the broader phenomenon. Lau demonstrates the utility of personal narrative in legal scholarship through a few well-chosen anecdotes, a technique notably used by Darren Rosenblum in his 2012 article Unsex Mothering: Toward a New Culture of Parenting. By using such an effective narrative, Lau persuasively argues that fathers are tangibly affected by gender stereotypes even before he began his analysis.
After sketching out the problem of gender stereotypes in parental roles, Lau outlines existing proposals to encourage more caregiving by fathers in the context of workplace policies, principally expanding paid parental leave and setting aside a portion of the leave solely for use by fathers, on the theory that an early incentive to take some time early in a child’s life as the primary caregiver will make fathers more likely to continue sharing caregiving work. Supporters of such a “daddy quota” of parental leave often point to Scandinavian countries as demonstrations of the success of such policies. Lau points out, however, that the broader culture of Norway and Sweden was significantly different than American expectations about parenting even before the daddy quotas were created, and calls upon scholars to “expand our conversation beyond workplace policies” toward ecological reform.
By ecological reform, Lau means a broad inquiry into how the state can generally encourage caregiving by fathers. He provides three examples to spark discussion: physical infrastructure, such as equal access to changing tables in public bathrooms; the targeted audience for community events, requiring classes currently labeled “Mommy and Me” to use gender-neutral names by tying the name change to funding for public buildings where such classes often take place; and media campaigns to encourage paternal caregiving.
What I found most helpful about Lau’s final proposals is how they are simultaneously large- and small-scale. On the one hand, Lau has persuasively outlined how pervasive gender stereotypes are, and his call to think of ecological reform broadens the field of potential changes well outside of workplace leave policies alone. On the other hand, Lau’s starting points are quite narrow in focus: how to require some “Mommy and Me” classes to change their names to be more inclusive, for example.
Lau does not have specific proposals to reform family law itself, although obviously his piece is easily identified as about the family. I write about gender stereotypes in parenting, and specifically about caregiving fathers, but have typically focused upon relatively large-scale questions of how to define legal parents in statutory language. Lau’s call to open the field of reform to relatively small interventions, but multiple interventions across different areas and types of laws, reminds us that combating gender stereotypes must be as far-reaching as the stereotypes themselves.
Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Janet Halley, What is Family Law?: A Genealogy, Part I, 23 Yale J. L. & Human. 1 (2011) and Janet Halley, What is Family Law?: A Genealogy, Part II, 23 Yale J. L. & Human.189 (2011). Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what did happen with this issue or that in the transformative-yet-reactionary 19th Century?
But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours. Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1988); Hendrik Hartog, Some Day All This Will Be Yours: A History of Inheritance and Old Age (2012). But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!
The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths. For example, rather than presenting them as disconnected and separate historical moments, Chused and Williams frame the eventual success of the Suffrage and Prohibition Amendments as inextricably intertwined. Their chapter on women’s campaigns for temperance and moral purity is followed by a chapter detailing the suffrage effort from the middle years of the Civil War to its eventual success in 1919-20. Together, the two chapters reveal a single, long, immensely complex story of progressive change fostered not only by feminist leftist radicals but also by feminist appeals to profoundly conservative values.
Equally rich are the materials on feminist efforts to emancipate wives, mothers, and widows in family law. As Chused and Williams show, contemporary divorce law rests, to an unrecognized degree, on the very partial success of 19th Century feminists in reforming the common-law rules governing property relations between husband and wife. The Married Women’s Property Acts (MWPAs) and the partial emancipation of wives to contract and to sue and be sued had complex ramifications, giving wives and widows some of the powers and some of the liabilities associated with participation in an increasingly wage- and commodity-based economy, while according them some of the burdens and some of the advantages of joint property rules. Chused and Williams’ chapter makes this complex “law in action” story lucid.
The rise of divorce, the rise of a best-interests-based legal motive for bestowing custody on separated and divorced mothers, turbulent conflicts between feminists and moral conservatives over abortion and birth control, are all detailed in expansive chapters that vividly present important historical social conflicts over family law and family roles that undergirded these questions today. Moreover, each chapter is richly documented, with amazing intensity and minute details, in terms that will be eerily familiar to readers who follow American post-war repositioning of all these issues.
Though many chapters – most notably the ones in the MWPAs and on suffrage – repeatedly exemplify the possibility of convergence and conflict over the relative posture of racial and female emancipation, the chapter devoted to this divisive comparative justice process is a major single accomplishment in its own right and well worth the price of admission. Chused and Williams note that the “domestic relations” included both the law of husband and wife and master and servant, and they provide a comparison of the law of justified and unjustified violence against wives and both enslaved and free blacks that demonstrates how deeply linked the institutions of marriage and slavery were to 19th Century jurists and political players, including feminists. They also explain how differently the two bodies of law were structured and applied. Their comparison of the rise of Jim Crow with the feminist denunciation of women’s retro social status as “Jane Crow” focuses on the co-evolution of segregated transportation facilities for women and for blacks, and almost graphically shows how the regulation of intimate relations (marriage and, specifically, racial intermarriage) and the law governing train cars were imbricated. The gradual obsolescence of the “ladies car” was, they suggest, made possible by the cementing of racial segregation in the social and legal order that culminated in Plessy v. Ferguson, suggesting that racial segregation of what we would now call public transportation was in part a way of managing white women’s increasing social mobility while protecting and preserving their stature as paragons of moral virtue.
The book ends with two fascinating chapters that point directly to modern relevancies. A chapter on protective labor legislation is a case study in the tension in gender equality law (and aspiration) between equal and “special” treatment. The next and last chapter, which focuses on the uses of history in the notorious Equal Employment Opportunity Commission v. Sears Roebuck and Company litigation, shows how sharply this issue can divide contemporary feminists, and also how images of gendered law in the 19th Century can become consequential rhetorical tools in modern political struggles. See Vicki Schultz, Life’s Work, 100 Colum. L. Rev. 1881 (2000).
One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.
For decades, same-sex couples have made claims—in both politics and law—to parenthood. Many of these claims relate to the regulation of assisted reproductive technologies (ART), as same-sex couples pursue modes of family formation made possible by ART and seek legal recognition of the parental ties that grow out of their use of ART. These claims have only grown more potent in the wake of Obergefell v. Hodges, the 2015 Supreme Court decision granting same-sex couples access to marriage on both due process and equal protection grounds. The centrality of ART in contemporary claims to LGBT equality leads Michael Boucai to ask in a timely and fascinating new article, Is Assisted Procreation an LGBT Right?
In resisting the turn to ART as an LGBT political project, Boucai contrasts the primacy of biogenetic ties in organizing around ART with the role of nonbiological forms of kinship in the history and ethics of LGBT life. ART’s “appeal to American society’s pervasive biogeneticism, its deep-seated faith in the priority and superiority of biogenetic forms of relationship and identity,” Boucai asserts, runs against the LGBT community’s longstanding commitment to “a social and functionalist … conception of familial relationships.”
To illustrate the significance of social kinship in the LGBT community, Boucai points to work around adoption. As he notes, LGBT people fought for decades to win rights to form foster and adoptive parent-child bonds. “LGBT people’s uncommonly warm embrace of adoption,” Boucai argues, should not be interpreted as “mere acquiescence to circumstance,” but constitutes “queer resistance, both personal and political, to the ideology of biogenetic kinship.”
In contrast, Boucai argues, same-sex couples’ claims on ART shore up the importance of biogenetic kinship. Of course, a same-sex couple will ordinarily feature at least one parent without a legally cognizable biological tie to the child. But, as Boucai notes, the choice of gamete donors often reflects an interest in replicating the nonbiological parent’s physical features and racial or ethnic identity. Moreover, some may even enlist relatives to serve as gamete donors or gestational surrogates. Same-sex couples, through this lens, seek to replicate the biological family. To be clear, Boucai aims his criticism less at the personal pursuits of LGBT people and more at the biological focus “in the politics of LGBT parenthood.”
Boucai’s intervention alerts us to the ways in which claims on ART can reproduce normative models of family that historically have justified the exclusion of LGBT people. Reflecting critiques of the push for same-sex marriage, Boucai warns of the assimilationist thrust of LGBT arguments for biogenetic parentage. Yet, at the same time, other work—as Boucai acknowledges—identifies the capacity of ART to disrupt the biological, gender-differentiated, and heterosexual family. It is this doubleness, which runs throughout Boucai’s article, that makes ART so fascinating and yet so fraught.
Same-sex couples, unlike many of their different-sex counterparts, use ART in ways that produce nonbiological parent-child bonds and lead to parental recognition without reference to biological ties. Viewed from this perspective, Boucai’s attention to adoption as a model of social parenthood can be seen as connected to fights over ART. For same-sex couples, ART represents a pathway not only to biological but also to nonbiological parent-child relationships. Just as same-sex couples staked out the primacy of social, over biological, bonds in their push for adoption, same-sex couples again ask law to credit social bonds over biological connections in the domain of ART.
Given the complicated relationship between LGBT claims on ART and the historically rich LGBT ethic of social parenthood, how might the LGBT community navigate the terrain of ART, family formation, and parenthood? Boucai’s critical intervention points in two related directions.
On one hand, Boucai highlights the need to build out claims in the adoption arena. LGBT people, Boucai shows, have distinctive investments in the adoption regime. As Williams Institute research has shown, same-sex couples are much more likely than their different-sex counterparts to be raising foster or adopted children, and LGBT youth are much more likely than their non-LGBT counterparts to enter the foster care system. In this way, LGBT individuals are overrepresented both in the community of adoptive parents and in the pool of children available for adoption. These features lead Boucai to urge the LGBT community to devote greater attention to adoption law and policy—and specifically to the vindication of social parenthood models. Drawing on Elizabeth Bartholet’s foundational work, Boucai shows how the adoption regime is regulated in ways that continue to express skepticism of nonbiological bonds. Embracing a functional model of family more fully could reshape the adoption regime in ways that render it not only more normatively attractive but also more effective in promoting children’s welfare.
On the other hand, Boucai urges the LGBT community to pull back from some claims in conflicts over ART. Claims that sound in the fundamental right to procreate, Boucai warns, reiterate the centrality of the traditional, biogenetic family and marginalize the adoptive family. To be sure, some proponents of the ART-focused fundamental right to procreate argue that the right should include the creation of nonbiological parent-child relationships. But it is easy to see how these arguments may situate such rights as merely derivative of rights to parental recognition based on biological connection.
Boucai also expresses skepticism about equality-based arguments in the ART arena. Certainly, laws that restrict access to ART may disproportionately affect LGBT people. But, for Boucai, equality-based challenges to these laws falter on both doctrinal and normative grounds. Not only do these arguments face the ordinary obstacles that disparate-impact analysis currently entails; but, according to Boucai, they also prioritize biogenetic parenthood over other kinds of parental bonds.
Here, though, is where the doubleness of ART is particularly illuminating. Perhaps equality-based claims offer more transformative potential than Boucai admits. By attending to the law’s social meaning, rather than focusing simply on questions of classification or discriminatory purpose, courts might appreciate the harms inflicted by a parentage regime anchored in biological connection. For same-sex couples to be treated as fully belonging, the law must recognize the nonbiological parental ties that LGBT people form through ART. Accordingly, claims to equality entail a challenge to the primacy of biogenetic ties. On this view, same-sex couples using ART have the capacity to remake the law and politics of parenthood, even as in their personal lives they may reiterate the salience of biological ties.
Why are employees who sue to obtain workplace leave under the Family Medical Leave Act of 1993 (FMLA) almost twice as likely to win their cases as those who bring discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII)? The title of Kate Webber’s intriguing article reflects an intuition many feminists and family law scholars already bring to the table: courts find women more sympathetic when they make claims that conform to their appropriate gender roles (as they do when they ask for family leaves) than when they challenge those norms in the workplace (as they do when they make a claim that the workplace is discriminatory). Webber unpacks this intuition, first by identifying differences in the statutory schemes that might help to explain the gap in success rates between the two statutes, and then by examining the ways in which the content of the legal protections each statute provides might understandably trigger different ideological and cognitive responses by judges. The analysis is both cautious and compelling. It is also surprisingly optimistic, concluding that family leave laws provide a legislative model that may actually be more effective than Title VII in reducing institutional workplace inequality.
Other scholars have noted the differences between Title VII and the FMLA. The most important of these differences for Webber’s purposes is that the FMLA, though motivated by the desire to relieve work-family conflicts especially among women, is a gender-neutral employee benefit, much like minimum wage laws and OSHA regulation. To win an FMLA claim, a claimant need only show that she was entitled to the benefit and did not get it. In contrast, Title VII creates a civil right available on the basis of membership in a protected class. A Title VII claimant must show both that she experienced an adverse employment action and that this action was caused or motivated by the claimant’s sex, race, religion, or other protected characteristic. The difference is structural: the former defines the status quo; the latter challenges it.
Webber explores various attitudinal and strategic models of judicial behavior as well as theories of cultural cognition, suggesting that while these theories do not conclusively prove judicial bias, they help to explain the different win rates under the two statutes. Building on the insights of Katie Eyer, Joan Williams, and others, Webber explains that the FMLA does not threaten existing meritocratic norms and employer prerogatives in the workplace and instead appeals to a broader range of family values. As a result, she argues, the FMLA is less challenging to judicial worldviews than Title VII and thus generates less ideological and psychological resistance. Deciding in favor of an FMLA claimant, Webber explains, requires only that one believe that the employer denied a benefit defined by that statute. Deciding in favor of a Title VII claimant requires acceptance of an altogether more contentious narrative, built on suppositions that certain groups are especially vulnerable in the workplace; that protecting those vulnerable people does not constitute favoritism; and that discrimination by people and institutions is not rare and is not always conscious or rooted in animus. Tellingly, Webber points out, in those FMLA cases based on discriminatory retaliation for filing a claim—cases more like Title VII claims than FMLA interference claims in what it asks decisionmakers to believe—the win rate goes down.
From a Title VII standpoint, Webber’s analysis of the ideological and psychological barriers to determinations of discrimination is discouraging, for these barriers are not easily overcome. Drawing on the work of Catherine Albiston, however, Webber finds a silver lining: the greater potential of the FMLA “direct benefit” model to weaken aspects of institutional workplace inequality. FMLA claims are not only more winnable, Webber argues, but the FMLA more radically abandons the norm of full-time work availability, which Title VII leaves intact, and substitutes a norm that requires workplace adaptation to some family circumstances. For Webber, the relative success of FMLA cases should encourage legislators to press for more family-friendly, gender-neutral statutory benefits as an alternative to anti-discrimination laws based on “comparative status based equity” (p. 180). She favors, in particular, the Pregnant Workers’ Fairness Act, which would require employers to provide reasonable accommodations to pregnant workers as long as these accommodations do not impose an undue hardship on the employer.
Families are More Popular Than Feminism has the quality of a picture that conveys two alternative images—like the famous Rubin vase/profile illusion. For dominance feminists, perhaps enticed to read the article by its title, the piece confirms the shortcomings of a judicial system that cannot reliably recognize the workplace discrimination that women face unless they present themselves as caretakers. For those with fewer preconceptions, the article is a hopeful account of a gender-neutral wedge that might have the leverage to change workplace institutions. Both seem plausible to me—different sides of the same coin, as it were. Webber acknowledges, correctly, that a benefits approach will fall short of the fuller range of civil rights protections that Title VII promises, and she does not ask us to abandon these protections. But in explaining what works about family leave laws, Webber reminds us that sometimes less is more.
Cite as: Katharine Bartlett, When Less is More
(March 27, 2017) (reviewing Kate Webber, Families are More Popular Than Feminism: Exploring the Greater Judicial Success of Family and Medical Leave Laws, 32 Colum. J. Gender & Law
145 (2016)), https://family.jotwell.com/when-less-is-more/
Should the definition of “marriage” be federal? What about the definitions of “parent” and “child”? Courtney Joslin’s carefully written article, Federalism and Family Status, traces the history of how the law has treated family status determinations and sets forth a framework, grounded in the federalism literature, on when family status should be determined on a state-by-state basis or as a federal matter.
Joslin’s article was written before two major events that have changed the family law landscape—the Supreme Court’s 2015 decision in Obergefell v. Hodges and the presidential election of 2016. In Obergefell, the Supreme Court struck down state bans on same-sex marriage, thus essentially federalizing the definition of marriage in one important respect. In the election, Donald J. Trump prevailed, and with him came fears that he will to appoint conservative justices who might overturn Obergefell. At this particular historical moment, Joslin’s article is worth rereading with an eye to applying her theory to this drastically changed landscape.
Joslin’s article begins by debunking the theory that all family status determinations are made at the state level. She acknowledges the extant scholarship on “federal family law” by scholars such as Jill Hasday, Kristin Collins, and Reva Siegel that has already dismantled the notion that all family regulation is state-based, but then identifies one “core” of family law that most scholars still assume cannot be federal—family status determinations. These determinations—who is married, who is a parent—are still widely understood to be governed by state law. Joslin deftly shows how the federal government has nevertheless affected the law of family status determination in several ways. First, Congress has often crafted its own definition of “child” for determining eligibility for federal programs such as Social Security regardless of how a “child” would be defined by state family law. Likewise, federal courts have also adopted independent federal definitions of family status when they interpret federal law. In both instances, the justification has usually been that uniformity is necessary to achieve fairness in the implementation of the federal program or benefit.
So far, the instances Joslin identifies seem completely understandable—in order to administer a federal scheme, the government must have eligibility requirements, and these requirements should not vary depending on the state of one’s residence or domicile. She observes, however, that Congress has also been remarkably active in its attempts to coerce states into adopting family status rules that conform to federal ideals, even where no benefits scheme is involved. For example, Congress has conditioned state receipt of welfare funds on a state’s willingness to assign legal parentage to genetic fathers of nonmarital children, often through the creation and adoption of voluntary acknowledgment of paternity (VAP) programs. On this account, many of the definitions of parentage that appear to be voluntarily adopted by states have actually been shaped by federal intervention.
Once Joslin identifies the ways in which Congress and federal courts have shaped family status rules, she develops a normative framework for when this type of lawmaking is appropriate. This is the part of the paper that is the most interesting now, with the trajectory of family law up for grabs. Joslin looks to the massive literature of federalism to derive principles of when state or federal control over an area is desirable. State control, she observes, produces decentralized experimentation and can foster innovation. States, too, she observes, as closer to the people, so state action promotes “community buy-in.” When government is closer to the people, it can act as a check on national power, prevent tyranny, and promote liberty.
At the same time, Joslin notes, uniformity is sometimes important to ensure fairness and equality. Special interests can capture local governments, and the federal government may have to intervene to correct for market failure.
Applying these competing principles to family law, Joslin advocates for a system in which experimentation is encouraged in the early stages of change and the federal government intervenes once there has been “sufficient airing of the issue and a general consensus or trend has emerged.” This balance, she argues, will respect the “dynamic” nature of family law and the need for “law to adapt to fit” new realities. It is desirable, she argues, in areas such as the law of gestational surrogacy and the legal status of posthumously born children that the states experiment with different approaches. Because we cannot know with certainty what the “right” direction is in uncharted territory, a state-by-state approach is both safer and more likely to guide us to the right result.
In contrast, there are some areas in which there is enough of an emerging national consensus that the need for uniformity overrides the need for experimentation. Joslin suggests that family law may be a place in which this need for uniformity is particularly acute. Because family members are dependent on one another, both financially for emotionally, “there is something deeply unsettling about a world in which one is considered a child or a parent for some purposes and in some places but not others.” Same-sex marriage provides a perfect example of Joslin here; with the majority of states in the U.S. recognizing same-sex marriage, the need for uniformity is fast outstripping the need of states to experiment.
Joslin’s nuanced approach calls for federal restraint when attempting to shape state definitions. In situations invoking constitutional rights, she argues, “there may be times when early federal intervention is not only helpful, but indeed, may be necessary.” In most circumstances, however, Joslin suggests that “aggressive” federal intervention is likely to be a mistake, resulting in lost opportunities for experimentation and a lack of community buy-in.
So, what to make of Joslin’s arguments today? Now that Obergefell has been decided, we have—for the time being—a requirement imposed by federal constitutional law that any definition of marriage must include same-sex couples. We still, however, have wide variation across states on questions of parentage, especially those involving alternative reproductive technologies (ART). In this landscape, Joslin’s article offers to reasons for hope. First, the article confirms the rightness of Obergefell. Although the majority opinion has serious flaws, under Joslin’s rubric, the big-picture take-away is that society has moved enough in the direction of recognition of same-sex marriage that federal recognition is both timely and appropriate. Could a different Supreme Court overrule this opinion? Certainly yes. But the inexorable trend has been for younger generations to embrace marriage equality and, even if the Court were to undo its work, marriage equality has won the hearts and mind of millennial voters. As for the myriad state-level parentage recognition schemes, Joslin’s article counsels us not to worry so much. Experimentation can be good. California’s recent statutory adoption of up to three legal parents, for example, seems a welcome experimentation but one that is not ripe for adoption on a national scale. Finally, the benefits of federalism come to the fore when a nation changes its federal leadership so drastically, so quickly. Uniformity can be good, but only when we have a collective consensus on what the “right” answer is. After a national election in which the electors and the popular vote split and the nation is almost evenly divided, it may be time to celebrate the local.