Category: LGBT

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Wedlocked or Wedlinked? Will Same-Sex Couples Remake Marriage or Will They Demonstrate Why Others Should Abandon it?

Katherine Franke’s Wedlocked is a model of critical scholarship.  The book’s motto is “be careful what you wish for” as it ponders the potential negative consequences of a newly granted ability to marry.  Written during the ten year period leading up to Obergefell, the book examines comparisons with the impact of legal marriage on freed slaves in the aftermath of the Civil War.  Franke has unearthed a largely untold story of the hardships African-Americans endured because of marriage, and because of the sudden imposition of a new system at odds with long established norms.  She carries the account into the twentieth-first century, noting the ways in which marriage legitimizes some families while it continues to disadvantage others, particularly in communities of color.  Throughout, Franke maintains her outsider stance as she chronicles wrenching stories of injustice, questions whether it is possible to overcome the legacy of racism and homophobia, and worries that the movements for sexual liberation and gender equality will be subsumed by the emphasis on marriage.  The result is a provocative and original account that in many ways is as interesting for what it leaves unsaid as for what it addresses directly.

 

The two best parts of the book are Franke’s reclamation of nineteenth century marriage cases and her musing at the book’s end about whether marriage is really well-suited for same-sex couples.  Franke has dug deeply into the archives, and come up with fascinating accounts of the legalization of slave marriages.  The most thoroughly documented material addresses the efforts of the Union Army, desperate for troops by 1864, to enlist African-Americans to join the fight.  The Emancipation Proclamation had freed only the slaves in the seceded states, and the Union promised emancipation for the slaves in the states, like Kentucky, that had not seceded.  When slaves left to join the military, however, their families faced often brutal retaliation from slave owners.  The families began to flee with the soldiers, but this, too, left them vulnerable, and when a Union Commandant evicted the families from Fort Nelson, Kentucky, in November 1864 without adequate food or clothing, many died of disease or exposure.  Congress, shocked into action by the images of children dying in their mothers’ arms (and the prospects of losing needed enlistments), voted to free not only the soldiers, but their wives and children, with compensation to the slave owners who were still part of the Union (p. 43-44).  While African-American slaves had not been able to marry, women who could establish that they were in a marriage-like relationship with an enlistee could obtain their freedom.  Franke reports, however, that marriage – and the freedom that went with it – exposed the women to new risks.  Even if their masters did not retaliate directly, they no longer had to support them, the Union Army provided little protection or assistance, and managing on their own was perilous.  Franke concludes with two contrasting paragraphs.  The first reflects her skepticism, as she emphasizes the “unintended harms” that can occur when the law gets too far ahead of social attitudes.  To confer a right to marry on people who previously could not marry, and to do so without “taking into account the underlying bigotry that caused their subordinate status, had the unfortunate result of leaving the newly favored group worse off than they were before they were recognized as rightsholders” (p. 49, emphasis in original) In short, marriage can be a problem rather a solution.  Yet, in the next paragraph, Franke acknowledges that the freed slaves did not necessarily see it that way.  While the law in effect adopted a form of common law marriage that tied legal significance to cohabitation, the former slaves were so eager to participate in marriage ceremonies that Kentucky military officials reported running out of marriage license forms.  Marriage was also a valued right for families who had been denied official recognition of their relationships.

 

The middle part of the book continues mining the historical records for marriage cases, and here Franke finds a tantalizing incomplete historical record.  In many parts of the South, prosecutions for bigamy, adultery and fornication were brought against African-Americans with no comparable cases against whites.  She assumes that these cases were part of an effort to use the criminal justice system to reacquire the labor of freed slaves, sending the men off to prisons that then leased out the prisoners’ labor under conditions often worse than slavery.  In other circumstances, however, African-American women brought actions against men who left them for other women.  Franke surmises that the women may have been using the legal system to identify a man responsible for support in an effort to protect their children from being seized and apprenticed to whites ready to put them to work in the fields.  Franke treats these cases as examples of the use of marriage as a trap for the unwary; she observes that the law that automatically legalized slave marriages was a “double-edged sword” (p. 132).  The mostly illiterate freed men and women did not necessarily realize that if one relationship ended and another began, they were guilty of the crime of bigamy.  Yet, many slaves did have multiple families as slaveowners had involuntarily separated couples and some of these couples wished to be reunited when slavery ended, setting up potentially painful confrontations.  Moreover, in the years afterward, freed men and women who wished to enter into new relationships were often not aware of the need to end an older union and, even if they knew about the law, did not necessarily have the resources (and often lacked the grounds) to get a formal divorce.  Franke uses these descriptions to draw parallels to gay and lesbian couples who married in the early adopter states such as Massachusetts only to find it difficult to divorce because of their home state’s refusal to recognize their marriage and their inability to meet the residency requirements for divorce anywhere else.  California couples found themselves in similar predicaments if they entered into domestic partnerships that were automatically converted to marriage as state laws changed, and the couples did not opt out (p. 146).  Franke observes that the “full implications of being automatically married were quite devastating for many black people” (p. 133) and she fears that same-sex couples may also find that marriage law may subject them to oppression from unsympathetic courts.  Her objection is that marriage is a “complicated vehicle through which to address the injustice of racism and homophobia” and that “the freedom to marry risks collapsing into a compulsion to marry” (p. 162).

 

This middle section of the book is less satisfying the initial and ending chapters.   Part of the reason is that while developments during the Civil War are well-documented, with newspaper accounts, congressional debates and letters from the participants providing some of the backstories, the court files after the war include no such details.  Franke is left to guess at the motivation of the parties and she cannot fill in the full context of the cases.  Moreover, as she recognizes, the parallels with the modern position of same-sex couples cannot be exact.  The problems that a lesbian doctor faces, if she is stuck in a marriage in Connecticut because of the civil union she entered in Vermont, are not really comparable to being shipped off to a chain gang and Franke says as much.   In both cases, the difficulties are partly ones of transition from an oppressive system to a not fully developed new one.  The real issue, which occupies the latter part of the book, is deciding what the new system should look like.

 

Franke’s final chapters are intriguing as an exploration of what happens now that marriage equality is at hand.  She acknowledges that the backlash has been less than she feared (though she documents numerous examples showing that it persists) and she notes the risk that same-sex couples’ marriage will be held up as further reason to disparage the less stable relationships of African-Americans and other marginalized groups.  Her accounts of gay and lesbian efforts to adapt marriage to their needs are insightful; she describes, for example, Fred and Melvin, who enlist a surrogate to have a child they intend to raise together.  They marry when the child is seven.  Fred is more interested in parenting than Melvin, however, and they enter into an agreement that if they divorce, Fred would have primary custody, and Melvin would have limited visitation and support equivalent to no more than 25 per cent of their combined responsibility for the child (pp. 220-21).  Such an agreement is almost certainly not enforceable in court and Franke wonders why couples who do not want the obligations associated with marriage are so eager to participate in the institution.  As with African-Americans, she acknowledges the importance of access to an institution that symbolizes full recognition and equal legal rights, but questions whether marriage can ever really address the needs of same-sex couples and, indeed, whether it should retain its ability to channel sexual activity for anyone.

 

This is the true subtext of the book.   Franke’s marriage skepticism pervades the volume; yet, it is couched in parables about unforeseen perils and the inability of a marriage-focused agenda to combat racism and homophobia.  The question her outsider account shies away from is a true insider one; what is marriage for?  Instead, her descriptions of marriage sometimes sound like they might have been authored by the Obergefell dissenters.

 

Franke, for example, tells the cautionary tale of Beth and Ruth.  Beth earned considerably more than Ruth.  During their cohabitation, Beth agreed to pay 80% of their combined expenses, while Ruth promised not to claim a right to Beth’s assets if they should split.  The two later married and divorced without signing a premarital agreement.  When they split, the judge, who had never before handled a case involving a same-sex couple, insisted on dividing not just their savings during the marriage, but their accumulation of assets during their cohabitation, a period that included time when Beth was married to someone else.  Franke objects to the judge viewing their relationship through a “heteronormative lens” and queries whether “this act of translation” does “violence to Beth and/or Ruth, or for that matter to lesbian relationships more generally?”  (P. 213)

 

One wonders, though, why Franke’s advice to Ruth isn’t to appeal and how exactly Franke would decide the appeal if she did.  The point of an appeal would be straightforward: the trial court applied a legal standard that does not apply to heterosexual spouses and is almost certainly wrong as a matter of law.  Courts ordinarily treat property accumulated before the marriage as separate property however long the parties lived together, and given that Ruth and Beth appear to have had an express agreement not to claim each other’s property as a result of the cohabitation, the appeal appears to be an open and shut matter.  Problems of transition, whether in the aftermath of slavery or the advent of marriage equality, are inevitable; it does not necessarily say much about what marriage should become in the new era.

 

Franke hints at, but does not fully engage the latter question (nor does she give many clues to how exactly she would write a decision in Ruth’s favor).   In calling the result “heteronormative,” she suggests that marriage still rests on the exchange between a man with assets and a woman made vulnerable by her assumption of domestic responsibilities, and that same-sex relationships do not necessarily rest on the same exchanges.   The question she does not ask is whether these assumptions are still appropriate for anyone’s relationships.   What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.  Kennedy’s majority opinion in Obergefell, whatever one thinks of his paean to marriage, acknowledges that the decision is possible only because of the dismantling of gender inequality.   The conservative dissenters, in contrast, opposed the result because of their insistence that marriage retain its intrinsically gendered nature as a way to deal with the consequences of human reproduction.  Marriage equality could command the support of a majority of the Supreme Court because of the rejection of that view.

 

Moreover, heterosexual couples are struggling, in ways not so different from same-sex couples, with the question of what marriage means in an era gender equality.  Let us go back to Beth (who flips homes and has two children from a prior marriage) and Ruth, a union electrician who cycles in and out of the labor market.  The two could easily be named Beth and Rick.  Franke’s insight that marriage is a bad deal for Beth, who in her account both earns the higher income and takes primary responsibility for the children in the home, is right and I have argued elsewhere (with Naomi Cahn in Marriage Markets) that this is an important reason why women like Beth are not marrying the fathers of their children.   Moreover, for Beth this is a second marriage where one of her most important concerns ought to be to preserve her assets for the children of the first marriage.  This is the classic type of case where a premarital agreement is appropriate, and one suspects that as same-sex marriages become normalized, so too will same-sex prenups.

 

The larger question, however, is what purpose (if any) marriage still serves for such couples and whether the conversation between same-sex and different sex couples working through the same issues will enrich or (as Franke seems to suggest) impoverish the discussion.  Franke is right that this conversation today is deeply gendered.  Rick, the electrician, for example, is likely to be seen as mooching off Beth, even if he cleans house and makes gourmet dinners, while the judge seemed to place Ruth in a housewife’s role whether or not she took on more than half of the couple’s domestic responsibilities.   Sociological studies of marriage seem to indicate that it works well for two career couples who can afford to hire domestic help and for traditionally gendered breadwinner, homemaker relationships; it does not seem to work well where one of the spouses is both the primary caretaker and the more reliable breadwinner.  Relationships like that between Beth and Ruth (or Beth and Rick) pose important challenges for society more generally.

 

At the end, therefore, while Franke’s volume offers a compelling critical account that addresses “the perils of marriage equality,” it does not really try to engage the question of what role marriage should play.  To be sure, Franke would dismantle much of it, particularly the insistence on monogamy and the restrictions on sexuality associated with the institution.  The harder issue is the association with children.  Here, Franke’s critical account is telling.  The real problem for African-American families gaining freedom in the Civil War era was the crushing impact of poverty and racism.  Franke rightly criticizes the failure of the Union, eager for the enlistees’ services, to provide for their vulnerable families.  Yet, for Franke, the Union obligation should not have rested on marriage; it should have rested on the need to address the poverty and racism that affected the entire group of freed and not yet freed slaves.  In the nineteenth century, however, the principle method of family provision depended on the combination of male wages and the identification of “legitimate” families entitled to share in these wages.   Progress for African-Americans accordingly depended either on their inclusion in the mainstream system, however much we might like to replace that system with something else, or development of a new, more racially appropriate system, that even if more consonant with the freed slaves own values, was likely to be stigmatized in accordance with the racism of the era.  In short, there were no good choices.

 

LGBT couples today are in a somewhat different position, in part, because marriage is no longer compulsory or universal for anyone.  It nonetheless remains a way of linking parents and responsibility for children and commanding community support for family undertakings.   Franke would prefer a system that does not depend as much on marriage and so would many of us.  She may be right, for example, that marriage promotion efforts stand in the way of greater recognition of the crushing poverty that has become a consequence of a more unequal society.    Encouraging the parents of these children to marry each other is likely to be as ineffective as it is misguided; directly addressing the racism that undermines these communities offers considerably more promise.   On the other hand, one thing that does separate married couples from cohabitants is shared (and legally enforceable) responsibilities to children.  Same-sex couples who adopt see themselves as two equal parents in their own eyes and before the law.  Similar couples, who take on parenting relationships without the formal sanction of either marriage or adoption, are more likely to disagree about their parenting status if the relationship ends.   Couples like Beth and Ruth will be more likely to manage their financial affairs through express agreements, whether inside or outside of marriage, as same-sex unions become more routine.  The much more telling question is the commitment couples like Fred and Melvin make to their children.  Marriage today has become an institution premised on formal equality.  Both spouses are held to equal rights and responsibilities for children born into the union even when, like Fred and Melvin, one parent takes on much more of the emotional and practical responsibility for children.  Adults should be free in the new era to design relationships of their choosing, much as Franke would have them do.  The question for the rest of us, however, is whether there is still a need that for institutions that guide the meaning of parenthood.  That question is not part of Franke’s inquiry.

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Our Precious Perversions

It’s a strange time to be a pervert in America. Donald Trump may well be elected the 45th president, running on a platform of protecting the traditional family by rolling back newly-won, sweeping marriage rights for gays and expanding the first amendment to protect outright anti-gay discrimination. At the same time, the New York Times ran a human-interest story last week about an interracial, sadomasochistic relationship involving a well-known musician and Columbia University professor, calling it, blandly, “A Composer and His Wife.”. Just a few years ago, both would have seemed equally improbable, perhaps even farcical. There’s something vertiginous about both the speed of the progress made by gay marriage advocates and the severity and far-reach of the backlash. How do we understand the simultaneous expansion of marriage regimes and the increasing public articulation of “alternative sexualities”? Are they, as many queer thinkers lament, impossible bedfellows? While public discourse about polyamory and kink is all but ubiquitous, we are still unbearably, insufferably held hostage to the marriage discourse. As Katherine Franke has so beautifully elaborated in her new book Wedlocked, marriage, particularly reproductive marriage, is increasingly the sole vehicle through which we can make space in public to talk about sex. That is one of the many unanticipated and vexing consequences of the push to legalize same-sex marriage. It used to be that marriage was “the place where sex goes to die,” but now I think marriage is just, somewhat disappointingly, where sex goes, period. But is that the end of the story?

As a “recovering” lawyer-turned-sociologist, I’ll focus here on some of the more general socio-legal claims in Franke’s book, which press us to approach the current moment with sobriety rather than celebration. As marriage expands its umbrella to shelter the dyadic, reproductive (“homonormative”) gay family, rights to marriage risk ossifying into obligations. Intermediate forms of relationship recognition, like domestic partnerships, begin to fall by the wayside, and a crag separating the legitimacy of the legal marital form for all other forms of kinship widens to a chasm.

Freedom has rules, Franke tells us, and they are not always the ones we might choose if we were in charge of our won freedom (3). History is instructive here. Attempts to force the plurality of kinship ties forged by newly freed slaves into legal, marital families required a series of arbitrary distinctions (for example, which of a succession of female partners would qualify for an emancipation or pension tied to one man’s military service). Coincident with the transfer of African American families from the “private control of owners to the public control of law” (5) was the political sentiment that any kinship tie outside of those marriages was either unimportant or the sign of social pathology. While we may think of marriage as a means of escaping the burden of social abjection (60), marriage regimes themselves produce that abjection. They are self-reinforcing. Communities with weblike, inventive kinship networks, which often serve protective functions for disadvantaged groups like racial minorities or sexual dissidents, are simultaneously invited into the dominant family form and told their existing affiliations are signposts of their unfitness.

I felt a familiar sense of hopelessness reading Wedlocked. As I’ve watched the gay movement rebrand itself from one focused on sexual and gender liberation to a “focus on the family,” I’ve wondered how we might recuperate some of the radical potential of queer kinship. And now, I’m left wondering how we might use marriage, since clearly it isn’t going anywhere, to assist in this project. In that spirit, I’d like to add a point to Franke’s “Progressive Call to Action for Married Queers,” for which I think we might take inspiration from Mollena Williams and Georg Friedrich Haas, the subjects of the Times story I described above.

It’s a rich story with a banal headline: world-famous composer and college professor finds love after three failed marriages—but this is not just any kind of love. Haas, a white Austrian, meets Williams, a black American, on a typical, bland dating site, and they commence a deep, negotiated power exchange, in which Williams submits to serving Haas, to making his life “as comfortable as possible.” Though the text of the Times story is less direct, this is a configuration familiar to those schooled in sexual diversity. Haas is a dominant; Williams is a submissive. He likely controls much of their joint life, and Williams derives satisfaction from being controlled. (This is not conjecture; Williams, a well-known sex educator, writes openly about her submission on her blog, The Perverted Negress.)

http://www.mollena.com

http://www.mollena.com

The rich layers of complexity in such a dynamic are, I’m sure, not lost on this readership: the juxtaposition of a feminist consciousness with female submission, the racialized power dynamics inherent in the configuration, the likely illegality of some of the sexual practices they admit to engaging in (when was the last time we saw the word “caning” in the New York Times?), the fact that such a relationship can also be, and indeed is, a marriage. Yet, while each of the dynamic concerns appears in a single sentence, the word marriage weaves its way through the narrative, the most dynamic portrayal being his failed previous marriages and his journey into this one.

But BDSM, a “compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism” often leans into and not away from the law. It is likely that Haas and Williams have both a marriage contract and an extra-legal bdsm contract detailing the terms of their Dominant/submissive dynamic. And perverts are not the only ones making such creative use of law. Martha Ertman’s new book, Love’s Promises, profiled in an earlier symposium on this blog, describes those used by a range of what she terms “Plan B” families to negotiate the terms of cohabitation and parenting in ways formal law fails to address.

If marriage “cleaves the sex out of homosexuality” (6), we certainly shouldn’t see marriages like this one in the popular press. But, increasingly, we do. And while gays have struggled mightily to distance ourselves from this type of depiction to preserve our standing as viable legal and political subjects, now that we have attained it, perhaps it’s time to let some of that abjection back in. In a context of legal and social exclusion, both racial minorities and non-heterosexual people form a variety of kinship structures that mediate relations of intimacy and of care and dependence. Think, for example, of the “army of ex-lovers” responsible for caring for the first sufferers of hiv/aids. What happens to forms of non-marital intimacy under a marriage regime? They risk disappearing. Perhaps one thing we might do is take a lesson from Haas and Williams and make sure we don’t lose our precious perversions to the marriage discourse.

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“What Have We Gotten Ourselves Into?”: Reflections on Katherine Franke’s Wedlocked

In 1989, Paula Ettelbrick, then legal director of Lambda Legal Defense and Education Fund, and her boss, Tom Stoddard, debated the importance of same-sex marriage for the struggle for lesbian and gay rights. Whereas Stoddard argued “the gay rights movement should aggressively seek full legal recognition for same-sex marriages,” (Thomas Stoddard, “Why Gay People Should Seek the Right to Marry,” Out/Look, Fall 1989, pp. 9-13), Ettelbrick, in contrast, argued that “marriage is not a path to … liberation” and that a more desirable and promising project was “providing true alternatives to marriage and … radically reordering society’s views of family.” (Paula Ettelbrick, “Since When Is Marriage a Path to Liberation?,” Out/Look, Fall 1989, pp. 14-17).

Katherine Franke’s powerful and engaging new book, Wedlocked: The Perils of Marriage Equality, is in the Ettlebrickian tradition of skepticism about the centrality of marriage to LGBT rights. But Franke’s project is different in at least two significant ways. First, Franke provides dramatic historical evidence on how gaining the right to marriage affected freed African-American slaves in the 1860s and thereafter. Franke argues that this historical evidence is deeply relevant to our thinking about same-sex marriage today. Second, unlike Ettelbrick, Franke writes after the stunning success of the quest for marriage equality for LGBT people. As readers of these words surely know, in Obergefell v. Hodges 135 S. Ct. 2584 [2015]), the Supreme Court, ruled that the U.S. Constitution requires states allow same-sex couples to marry. Franke’s project was conceived and mostly carried out before Obergefell, but the book has been recast as a cautionary tale about the risks of same-sex marriage both for individual LGBT people and for the LGBT rights movement. Or, as she nicely puts it, part of Franke’s project is to ask the LGBT community post-Obergefell “[w]hat [we have] gotten ourselves into” (209).

Some of Franke’s continued antipathy towards same-sex marriage stems from her concern that marriage will change LGBT people more than LGBT people will change marriage, in part, because marriage is designed for heterosexuals not for LGBT people. The thought is that when LGBT people marry, we are joining an institution that will constrain us, not empower us. No doubt there is some truth to this concern, but I think Franke overestimates the assimilationist impact marriage will have on LGBT people. There are other social forces besides marriage that have shaped and will continue to shape LGBT people (and heterosexuals, for that matter). Further, marriage is a much more supple and much less static institution than we assume it is. Even setting aside the speedy expansion of access to marriage for same-sex couples since the turn of the century, marriage has radically changed in the past fifty years. For example, it has gotten much easier to get divorced, most (although not all) gender asymmetries in family law have disappeared, cohabitation is now recognized for some legal purposes, procreation is no longer seen as a crucial aspect of marriage, and prenuptial (and postnuptial) agreements are now more common and courts are much more willing to enforce them.

Franke knows this but she remains concerned about marriage for LGBT people in particular because, she says, “as a legal matter, gaining marriage rights really boils down to surrendering the breakup of your relationship to governance by rules set by the state, rather than the ad hoc improvisations that same-sex couples used before they were able to marry” (209). She offers an example of two women in a serious but on-again/off-again relationship for over a decade or so. At one point, in an attempt to repair their relationship, the couple reached an agreement that they would not commingle their finances but that they would live together and contribute to their joint expenses in proportion to their abilities (specifically, the more-moneyed spouse would pay 80% of their household expenses). Subsequently, the couple married and, later, divorced. When the less-moneyed spouse sought equitable distribution of all the marital assets, the trial judge not only awarded her half of all of the couple’s assets, the judge also looked “backward,” past the date of marriage to when the couple started dating (because the couple had functioned as a married couple since that earlier time), and treated the assets over that long time period as subject to equal distribution (209-212).

For Franke, this is a disturbing story that exemplifies how “the pre-scripted roles of marriage—husband and wife—[are] mapped onto gay men and lesbians in ways that reproduce hetero-gendered subject positions” (20). I am much less troubled by this story than Franke is. The judge ignored the parties’ pre-marital oral agreement to keep their finances separate apparently, in part, because they subsequently married and, when they did, they didn’t memorialize their agreement in writing in the form of a prenuptial agreement. It seems reasonable, given this context, to apply the default rules of equitable distribution, that is, unless the parties explicitly contracted around these rules when the relationship was formalized. The same approach would be taken in the case of a similarly-situated heterosexual couple: the default rules of equitable distribution would be applied unless the parties contracted around them in the manner prescribed by the relevant state law. I think this is justified even though, as Franke points out, “[w]hen couples say ‘I do’ they are oblivious to the many legal rules that now govern their marriages…” (9) (This quote continues by saying that couples “can’t just pick and choose” (9) which rules to follow; to a great extent, however, couples can pick and choose, by opting for a pre- or post-nuptial agreement—although relatively few couples do this, especially if this is their first marriage.)

I am a bit more equivocal about the judge’s decision to “back date” the couple’s marriage. Note, however, in many instances, this sort of retroactivity is justifiably applauded by advocates of LGBT rights. Consider a state that didn’t recognize marriage between people of the same sex until Obergefell required it. Now imagine two women in that state who were a couple for decades and who would have gotten married there if they could have. Further, imagine that one of them tragically died the day before Obergefell was decided and that there was some important benefit that the surviving partner would have gotten had they married before the late partner’s death. Here, “back dating” this couple’s marriage seems quite appropriate if there is a plausible way to do so under the law. But doing so in this situations like this seems similar to doing so in the case Franke describes. For various reasons, I favor “back dating” in both cases over not doing so in either.

Returning to the broader themes, in contrast to Franke, I think that it is just as likely that marriage, rather than “heterosexualizing” same-sex couples, is “supple enough to accommodate a new cast of characters” even though they might “bust open marriage’s essentially heterosexual form” (20). Consider two differences between same-sex couples and different-sex couples. First, same-sex couples’ relationships are, on average, more egalitarian than those of different-sex couples in various respects including, most notably, the sharing of household duties and parenting responsibilities. Second, same-sex couples consisting of two men are significantly more likely to have “consensual non-monogamous” relationships, that is, relationships in which they agree on circumstances when it is permissible to have “extramarital” sex. For all we know, same-sex marriages might push the institution of marriage towards being more egalitarian and increase the likelihood that couples will discuss issues of sexual fidelity before either spouse has extramarital sex. Just as many of us of were surprised by the speed that the United States went from 0 to 50 in terms of the number of states that allowed same-sex marriage, so too we might be surprised by the impact this development has on the institution of marriage.

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The most vocal advocates for LGBT rights in the 1970s wanted more than equal treatment for LGBT people; gay liberationists wanted to change the very structure of society, to “liberate the homosexual in everyone.” With respect to marriage, gay liberationists saw it as a sexist and oppressive institution. As Ettelbrick put it, gay liberationists aimed to “transform our society from one that makes narrow, but dramatic, distinctions between those who are married and those who are not married to one that respects and encourages choice of relationships and family diversity.” Franke clearly regrets the loss of the liberationist aspect of the gay rights movement.

I share Franke and Ettelbrick’s view that the gay movement’s foundational liberationist tendencies are important, but I don’t believe the movement gave up on other forms of relationship recognition by seeking marriage through litigation, legislation and a campaign to change public opinion. In fact, recent scholarly work has shown that the quest for marriage equality and the quest for alternative modes of relationship recognition were synergistically intertwined. (See Michael Boucai, “Glorious Precedents: When Gay Marriage Was Radical,” Yale Journal of Law and Humanities, vol. 27, p. 1 [demonstrating the “liberationist” motivation behind early gay marriage litigation in the United States], and Douglas NeJaime, “Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage,” California Law Review, vol. 102, p. 87 [showing the “dialogical” relationship between LGBT rights advocacy for marriage, on the one hand, and advocacy for alternative modes of relationship recognition, on the other].) This complicated history makes me less worried that “[g]aining the right to marry [will create] the expectation that all in the community conform to traditional notions of coupling, and can have the unintended consequence of making the lives of lesbian and gay people who aren’t in traditional relationships more precarious, not less” (13).

That said, I share Franke’s concern that the alternative modes of relationship recognition developed over the past few decades are at risk of disappearing after Obergefell. To use the terminology used by William Eskridge, there is a question whether the non-marital modes of recognition will be “sedimentary,” namely, whether, when a new relationship form is opened up or created (e.g., marriage for same-sex couples) and more benefits are given to certain couples, the old relationship form that gave fewer benefits (e.g., domestic partnerships) will continue to exist. (The question, in other words, is whether the old relationship for will remains as “sediment.”) (See, William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights, p. 121 (2002].) According to Eskridge, sedimentation engenders pluralism about relationship recognition, and this should please advocates of alternative modes of relation recognition. However, Franke is concerned that sedimentation is not a robust phenomenon in the United States and her discussion in the latter part of Chapter 3 provides reasons to think she is right. That said, some jurisdictions have retained alternative forms of relationship recognition even after they have embraced civil unions or same-sex marriage. Colorado, for example, has retained its unique designated beneficiary law (which allows two unmarried people to give each other some or all of a limited set of legal rights, benefits, and protections to make certain decisions about each other’s health care and estate administration as well as treatment in medical emergencies, during incapacity, and at death) even after it passed civil unions and its still retains them after Obergefell. But now that same-sex couples can marry, there is a risk that many alternative forms of relationship recognition that have been created in the past three decades will disappear. And that would be a loss for all of us, not just LGBT people.

* * *

My comments thus far have mostly ignored the original historical research Franke did about the Civil War and Reconstructionist-era marriages of freed slaves. That history is both fascinating and deeply troubling, but I remain mostly unconvinced of its relevance to LGBT rights post-Obergefell. African-American slaves did not have the right to marry anyone. In contrast, lesbians and gay men in the United States, even before Massachusetts became the first state to solemnize same-sex marriages, did have the right to marry: importantly, though, we didn’t have the right to marry the people we wanted to (namely, people of the same sex). Perhaps bisexuals best illustrate the point I am making here. A bisexual could marry some of the people he or she wanted to marry (those of a different sex) but not others (those of the same sex). The contrast between the absolute prohibition on marriage for African-American slaves and the partial—albeit dramatic, immoral and unconstitutional—prohibition on marriage for LGBT people undercuts the analogy at the heart of Franke’s book. Instead, a better (although far from perfect) analogy is to antimiscegenation laws that were common throughout the United States for much of its history.

That said, I learned a great deal from Franke’s book, especially from her discussion of the archival research. Her attempts to connect this history to LGBT rights and explain the different receptions of the marriages of freedpeople in the 1860s and thereafter and the marriages of LGBT people in the 2000s and thereafter are insightful and provocative. I encourage you to read this fine book and to engage with it as I have tried to do here.

Edward Stein
Maurice Greenberg Visiting Professor of Law, Yale Law School
Professor of Law & Director, Gertrud Mainzer Program in Family Law, Policy, & Bioethics, Cardozo School of Law
email: Edward.Stein@yale.edu OR ed.stein@yu.edu

0

Wedlocked Book Symposium

We are delighted to introduce Professor Katherine Franke and the participants in our online symposium on Wedlocked: The Perils of Marriage Equality: How African American and Gay Mistakenly Thought the Right to Marry Would Set Them Free (NYU Press 2015). Franke’s important book explores the lessons that the contemporary marriage equality movement can learn from the experiences of African Americans who were finally able to enter into legal marriage at the end of the Civil War.  One groundbreaking aspect is its hybrid of legal history and critical theory to map the rebranding and legitimization of both African- American kinship and same-sex sexuality.  A crucial element of the story she tells is that today marriage remains, by and large, a site of perceived failure and source of real discipline for African Americans.  The juxtaposition of these two pivotal moments in U.S. civil rights history in which marriage played such a crucial role illustrates how the stain of homosexuality may have been easier to erase – for some lesbian and gay people – than has the badge of inferiority with which African Americans are burdened.  The book’s critical view of a right to marriage culls two decades of Katherine’s work charting the many, often racialized, meanings of sex, gender, sexuality and parenthood, providing balance to the discussion. At a minimum, Franke disputes many of the widely-touted benefits of the legitimacy that marriage brought to both former slaves and same-sex couples. A more expansive reading of Wedlocked, in contrast, builds on its radical re-thinking of what constitutes a legal “family.” First, the book implicitly challenges the current privatization of care responsibilities, suggesting a more individualist or perhaps government-funded responsibility for dependency. Second, Wedlocked seems to invite law and society to de-emphasize a couple’s promise to stay together “until death do us part” and the default rules of income and property-sharing upon death or divorce.

Wedlocked raises a host of fascinating and timely questions: What kind of a victory is the right to marriage? How does Franke’s innovative and careful examination of the familiar analogy between race and sexual orientation further our understandings of racial histories of marriage or the now-achieved battle for marriage equality for same-sex couples? If alternatives like Colorado’s reciprocal beneficiaries survive in an age of marriage equality, can and should these “marriage-lite” provisions be understood as normatively equivalent to marriage? If a promise of forever and property-sharing do not designate “us-ness,” what factors would trigger state and social recognition of an intimate affiliation? Does her eight-point “progressive call to action for married queers” provide a road map of social and legal practices that move toward legal and social treatment of a range of intimate affiliations as morally neutral alternatives? To consider these and many other issues, we have invited an all-star cast of thinkers and activists:  Rick Banks, June Carbone, Elizabeth Clement, Tey Meadow, Melissa Murray, Kimberly MutchersonEd Stein,  Jana SingerAllison Tait, and Michele Zavos.

We are excited for the discussion to begin!

 

11

Posner & Segall v. Scalia & Whelan

Many of you have probably already read Judge Posner and Eric Segall’s piece in the New York Times about Justice Scalia’s conception of the role of religion in regards to civil rights, particularly those of LGB Americans. Ed Whelan issued a response to the NYT piece here. I had not planned to blog about the discussion with too many deadlines today and tomorrow. However, my attempts to merely tweet a few thoughts escalated quickly:

Much like his tweet to me, Whelan’s attacks on Posner & Segall’s article are harsh and dismissive. Choice quotes include:

  •  “… just when I think that [Posner] can’t go any lower, he goes subterranean.”
  • “Posner resorts to the cheap debater’s trick of setting up and knocking down a bunch of straw men.”
  • “… no competent legal mind could fairly extract from Scalia’s dissent the proposition that Posner derives and attacks.”
  • “Posner’s observation is a smear and a distraction.”
  • “In sum: yet another contemptible performance by Posner.”

Given the things that Whelan wrote, I’m not sure whether Segall should be happy or upset about Whelan’s repeated omission of Segall’s name in describing the co-authored article.

My issue with Whelan’s piece, that I tweeted about, is that I don’t think he fairly represents Segall & Posner’s core argument (which is particularly notable when Whelan is calling them out for not “fairly present[ing] Scalia’s positions). Among Whelan’s several arguments, the one I find most problematic is:

In a recent speech, Scalia stated (according to this account) that “Saying that the Constitution requires [same-sex marriage], which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” Posner somehow extracts from this statement the “suggestion that the Constitution cannot override the religious beliefs of many American citizens,” and charges that Scalia holds a “political ideal [that] verges on majoritarian theocracy.” What nonsense. Like many unscripted remarks, Scalia’s statement is (at least in isolation from its fuller context) not a model of clarity. But his phrase “contrary to the religious beliefs of many of our citizens” is susceptible to either or both of two sensible readings. First, Scalia might be referring to the many “serious questions about religious liberty” that the Chief Justice’s dissent (which Scalia joined) explains that Obergefell creates. Second, he may be objecting to the Obergefell majority’s position that citizens with religious beliefs about marriage are somehow disentitled to support laws that accord with the moral propositions that their beliefs inform. By contrast, there is nothing in Scalia’s long record that remotely supports the notion that he believes that “the Constitution cannot override the religious beliefs of many American citizens.” Posner’s claim to the contrary—which is the centerpiece of his op-ed (which is why it’s titled “Justice Scalia’s Majoritarian Theocracy”)—is scurrilous.

But Whelan does not include all of the evidence that Segall & Posner cite to support their claim. From the original article (and at this point I should note how annoying the NYT website is at preventing cutting and pasting of text; thanks Lexis):

In Lawrence v. Texas… Justice Scalia complained that: ”Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ‘discrimination’ which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream.”’

Justice Scalia made these remarks 12 years ago — and predicted in his dissent that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision…. In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a ”deserving minority,” and added, ”nobody loves them.” Not content with throwing minorities under the bus, Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that ”a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy….

We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that he believes violate the First Amendment and various federalism provisions of the Constitution, as well as affirmative action measures that he thinks are in conflict with the 14th Amendment.

But who knows? Maybe he’ll now cease voting to strike down statutes under any provision of the Constitution, as otherwise he might be thought of as one of those ”unelected lawyers” who so threaten our democracy. Not only an unelected lawyer, but — a patrician. For he said in his Obergefell dissent that ”to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

For a newspaper editorial (with its inherent length limitations), I think Segall and Posner have provided substantial context for to support the argument that Scalia’s remarks were not merely unclear and unscripted statements that are not indicative of his greater views. Had they been writing in another forum, they could have also cited other portions of Scalia’s dissent in Lawrence:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding…. What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State….

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity….

The above quotes don’t even include Scalia’s strained argument that the Texas law was, for Equal Protection purposes, neutral because both gays/lesbians and heterosexuals were prohibited from homosexual conduct. Segall and Posner can point to other dissents and his continued positive references to the historically problematic Bowers opinion. Scalia’s continued invocation of examples like “child molesters” to justify morality-based restrictions on gay rights leads many to believe that his statement in his Lawrence dissent that “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means” rings hollow. Contrast Scalia’s dissent in Lawrence with this quote from Justice Thomas’s brief dissent in the same case:

I write separately to note that the law before the Court today “is … uncommonly silly.” If I were a member of the Texas Legislature, I would vote to repeal [criminal sodomy laws]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

I do not mean to say that Segall and Posner have made an ironclad case that Scalia supports some version of majoritarian theocracy (they even acknowledge that they “doubt that Justice Scalia would go that far” and cite contrary evidence). But their contention that Scalia is essentially appealing to religious majoritarianism in justifying the denial of civil rights to LGB Americans is a reasonable one and is based upon far more than one recent statement made by Scalia in a public forum.

9

Crisis of the Dissents Divided? — Disagreement among the Obergefell Four

imagesIn the various news feeds and pundit commentaries concerning the recent same-sex marriage case, the focus has been on the divide between the majority and dissenting opinions. Some side with the majority, others with the dissenters. Putting such differences aside for the moment, what is noteworthy is that while the Justices in the majority all spoke with one voice, the same was not true for the dissenters.

Though the judgment in Obergefell v. Hodges was 5-4, none of the four separate dissents garnered more than a total of three votes:

  • 3 votes: Chief Justice Roberts’ dissent — joined by Justices Scalia and Thomas
  • 3 votes: Justice Alito’s dissent — joined by Justices Scalia and Thomas
  • 2 votes: Justice Scalia’s dissent — joined by Justice Thomas
  • 2 votes: Justice Thomas’ dissent — joined by Justice Scalia

Notably, neither the Chief Justice nor Justice Alito signed onto any of the other dissents. Why?

The Scalia Dissent: Too confrontational?

UnknownWhile the Chief Justice and Justice Alito share many of the constitutional concerns stated by Justice Scalia (e.g., the need for judicial restraint, adherence to precedent, undermining the political process, and deference to the traditional roles of the states), they tend to be uneasy with the kind of in-your-face confrontational tone Justice Scalia employed in his unrestrained dissent.

It is a tried-and-true canon of civility: Attempt to avoid confrontational terms or phrases such as “hubris,” “egotistic,” “mummeries,” and “silly extravagances.” By that creed of civility it is unnecessarily vituperative to equate another Justice’s reasoning with “mystical aphorisms of the fortune cookie” or “pop-philosophy” or to refer to that Justice’s opinion as “judicial Putsch” – even if the seriousness of the latter is “not of immense personal importance” to you.

The Thomas Dissent: Too cabined or too natural law focused?

UnknownThe Chief Justice and Justice Alito also did not sign onto Justice Thomas’ dissent. Why? Though it is more difficult to answer this question, one explanation is a possible disagreement over the contours of due process as Justice Thomas offered it up. That is, his conservative colleagues may have been uncomfortable with Thomas’ reliance on Blackstonian notions of due process – notions perhaps too cabined for their constitutional tastes. Consider in this regard Professor Michael Dorf’s observation over at SCOTUSblog: “To the extent that Justice Thomas would allow any substantive due process, it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone.”

And then there is Justice Thomas’ invocation of natural law and natural rights. The debate over the use and relevance of natural law has been an ongoing one in conservative circles. On that score, Chief Justice Roberts’ former boss, William Rehnquist, once found himself in the crosshairs of controversy brought on by a defender of natural law. See Harry V. Jaffa, Storm over the Constitution (1999) and his Original Intent and the Framers of the Constitution: A Disputed Question (1994) and his article “Judicial Conscience and Natural Rights,” 11 U. Puget Sound L. Rev. 219 (1987).

The Alito Dissent: Reservations about the “further decay” of marriage argument?

(drawing by Arthur Lien: courtartist.com)

(drawing by Arthur Lien: courtartist.com)

While there is much similarity between the Roberts and Alito dissents on matters such as due process, equal protection, and the specter of vilifying people of faith, both nonetheless declined to affirm the other’s dissent. What might explain the Chief Justice’s unwillingness?

Did he have some reservations about the following?: “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.”

The Roberts Dissent: Too charitable?

(credit: WSJ)

(credit: WSJ)

If you believe (as Justice Alito seems to) that same-sex marriages may contribute to the “further decay” of marriage, then you are unlikely to be as generous of spirit as the Chief Justice was when he declared: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. . . .” By the same normative token, Justice Alito is not one who would appear to be inclined to say: “Many people will rejoice at [today’s] decision, and I begrudge none their celebration.”

Or what about this Roberts’ statement?: “The opinion describes the ‘transcendent importance’ of marriage and repeatedly insists that petitioners do not seek to ‘demean,’ ‘devalue,’ ‘denigrate,’ or ‘disrespect’ the institution. . . . Nobody disputes those points.” Nobody?

Here, too, speculation is more the measure than certainty.

Crisis of the Dissents Divided?

However close my speculations are to the mark, one thing is certain: there was no unanimity of thought strong enough to convince the four dissenting Justices to lend all of their names to a single opinion. Despite their strong differences with the majority opinion, they, too, had reservations about one another’s views of law and life and how those differences should be expressed.

* * * * 

(credit: NYT)

(credit: NYT)

On a related point: What are we to make of the fact that none of the four liberal Justices who signed onto Justice Kennedy’s majority opinion in Obergefell found it necessary, or desirable, to write separate concurrences? The same was true with Justices Stevens, Ginsburg and Breyer in Romer v. Evans (1996) and Lawrence v. Texas (2003), and later with Justices Ginsburg, Breyer, Sotomayor and Kagan in United States v. Windsor (2013).

One would think that these four Justices would push for a more protective conception of equal protection concerning discrimination against gays and lesbians. No? Then again, perhaps these four think the body of law tracing back to at least Romer will suffice.  And so far it has.

1

Race, Love, and Promise

Sheena and Tiara Yates

Martha Ertman’s wonderful new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, is a must read for anyone concerned about families or law. Ertman’s core argument is that “contracts and deals” can play a critical role in “helping people create and sustain families.” In advancing this claim, the book – which reads like a good novel even as it maps the complex, shifting landscape of modern family law – primarily relies on Ertman’s own, very compelling story of love and parenthood. Along the way, however, it also communicates the stories of other “Plan B” families, those that Ertman describes as being formed in “uncommon” ways. In doing so, it clears important space for lawyers and non-lawyers alike to consider the experiences of all families. 

Ertman persuasively makes the case that formal and informal “exchanges . . . [already] define family life” in a host of ways, and that greater reliance on such contracts could support the formation and functioning of Plan B families, as well as their more “common,” Plan A, counterparts. As a family law professor,I am deeply sympathetic to this view.  Even more, like so many others, my personal life is comprised of a patchwork of formal and informal contracts. On one hand there is my almost twelve-year legal marriage and the enforceable post-adoption contact agreement — something Ertman would call a “PACA” — that provides for annual visitation with my younger son’s birth mother. Then, on the other hand, sit the unenforceable, but nevertheless important “deals” that I have made with family members. These include the parenting norms that my spouse and I follow in raising our two children, and the mutual vows that we made before family and friends – such as “to love your body as it ages” and “to support you in the pursuit of your dreams.” These promises both help to define and affirm the contours of our loving commitment as a couple and a family.

Nevertheless, I often found myself seeking more from the story that Love’s Promises tells about the place of contract in family life. Like the students I teach, I have some nagging questions about how well contract can work for those who, for example, lack the money to hire a lawyer to draft or defend their cohabitation agreements, or who, because of past experience with the legal system, might never think about contract as a potentially liberating force in their lives. Moreover, I wanted a more complex narrative about the operation of race and contract in the family context than the book attempts to communicate.

To be clear, Love’s Promises does not ignore the subject of race. Indeed, Ertman deserves high marks for examining topics such as Whites’ exclusion of Blacks from marriage during slavery; the forced sterilization of African American women; and the concerns about transracial adoption articulated by organizations such as the National Association of Black Social Workers in the 1970s in crafting her vision of what the rules concerning contract and love should be. But, as important as this past history is, what I most craved was deeper engagement with what increased reliance on contract would mean for issues of race and family in the future.

Laws pertaining to family have historically structured families, but also race – how it is defined, understood, and experienced — in very consequential ways. Think, for example, about antimiscegenation laws that helped to give content to the very idea of race, determining who would be regarded as black or white, slave or free. I am thus very skeptical about the notion that, without more, we can expect that a norm which encourages greater reliance on agreements — especially those that would be more than mere “deals” and thus enforceable in court – will always have an equality-enhancing effect. A newspaper article that I recently read about the efforts of a black, lesbian couple (their picture appears at the outset of this post) to expand their family helps to explain why.

Sheena and Tiara Yates, fell in love and, after their 2011 New Jersey commitment ceremony, decided that they wanted a child. They successfully had one child and later tried to become parents again. As they had the first time around, Sheena and Tiara, who legally married in 2014, used in-home insemination to conceive. To formalize their family unit and intentions, they also entered into a written contract with the known donor whose sperm they utilized. Their agreement contemplated the donor’s relinquishment of all parental rights in the new baby, something designed to permit Sheena and Tiara to parent the child they’d longed for as a unit of two.

Despite the contract, the donor subsequently brought a custody suit to challenge the agreement’s terms and, at least preliminarily, succeeded in doing so. In a decision that the Yateses are now appealing, a judge granted him parental visitation rights. In cases involving insemination, New Jersey, where Sheena and Tiara reside with their family, courts will only recognize a non-biological parent’s rights if the insemination process was carried out by a physician. Although Sheena and Tiara, according to news sources, met with a doctor and were prescribed prenatal vitamins, the actual insemination process was performed at their home, without medical assistance. Significantly, this is the second custody suit that the Yateses have had to defend. The donor for their oldest child challenged the agreement that they had with him on similar grounds and now has visitation rights with that child as well.

Race, gender, and class intersect in troubling ways in the Yates case. Admittedly, it is not contract per se that produces the potential inequality. In fact, Sheena and Tiara clearly saw contract as an important tool in growing their family. But they entered into the donor contracts described within in a particular context, one in which the medical and legal costs that attend physician-assisted fertility treatments generally remain out of reach for low and even some middle-income families, a group in which African Americans — perhaps LGBTQ Blacks most of all — are disproportionately represented. It is not hard to imagine that health care costs figured into their decision to inseminate at home or, for that matter, to use a known donor rather than an anonymous donor affiliated with a sperm bank. Add to this the potential effects of other factors, such as fact that, given past history, many African Americans mistrust doctors and medical facilities, a phenomenon that Kimani Paul-Emile discusses in her work. All of this troubles the story of contract’s ability to advance the aspirations of all families equally.

Significantly, my lament is not simply that Love’s Promises passes up an opportunity to discuss how the realities of race and structural inequality in this country might diminish the power of contract for African Americans and other groups of color in the family context. Ertman’s book also misses a chance to say something about the particular advantages that contract could offer such groups. Despite my earlier argument, my sense is that there may be some places where contract could be very effectively deployed to disrupt the effects of racial stigma and inequality, especially if paired with other tools.

Consider the example of nonmarital black families, especially those with children. Today, African Americans are the most unmarried group in the country. While the U.S. has seen declines in marriage among all groups, they have been steepest among Blacks. Interestingly, African Americans place a higher value on marriage than many other groups. Studies suggest, however, that considerations regarding financial security and other related issues may prevent them from seeing marriage as a viable option for organizing their lives. In a recent law review article in the Hastings Law Journal, I make the argument that, instead of investing in marriage promotion programs that too often ignore the structural racial inequality (e.g., poverty, school drop out rates, housing and food insecurity, and high incarceration rates) that often creates a barrier to marriage, we should work to honor and better support nonmarital black families where they stand.

When it comes to cohabiting couples, Ertman concludes that they “should be recognized as an ‘us’ in relation to one another through property-sharing rules,” such those proposed by the American Law Institute. She stops short, however, of saying that cohabitants should “be treated as an ‘us’ when it comes to institutions outside the relationship, like the IRS and the Social Security Administration.” As Ertman notes in addressing proposals advanced by other law professors, a focus on cohabitants alone won’t do much for African America, a community in which black “women . . . are three times more likely than white women never to live with an intimate partner and more likely than white women to center their lives among extended kin.” But contract might be a more effective tool if extended to nonmarital families with children, whether the parents reside together or not. This might be especially true if combined with changes in tax policy and the structure of benefits that Ertman is less comfortable making in the absence of marriage.

For reasons already articulated, I do not think that adults in poor, nonmarital black families will or should run out to find lawyers who can draft binding contracts for them. But I can still imagine a world in which a contract-based norm works to destigmatize such families by making it plain that they have structures and “deals” like many others, not just the “tangle of pathology” described in the Moynihan Report issued fifty years ago.   In such a world, even informal contracts could assist the adults in “fragile” families in negotiating the many challenges that they face and serve to reduce conflict. Further, such agreements, to the extent that they help reveal the precise terms of the negotiations in which such families already engage, might uncover the reasons that fragile black families seem to be able to navigate co-parenting better than their counterparts. They might also disrupt stereotypes about the contributions that fathers, in particular, make to such families. Despite the racialized trope of the “dead beat” dad, studies show that nonmarital African American fathers tend to be more involved with their children than nonmarital White fathers, and regularly contribute diapers and other goods as a way of providing support, even when dramatically reduced job opportunities make money scarce.

Love’s Promises helps us see the current realities of both “Plan A” and “Plan B” families, and to imagine what the future could and should be as a normative matter. I’m very grateful to Martha, the symposium organizers, and my fellow participants for helping me to think even more about the possibilities of contract in the family law context, especially where families of color are concerned. On this day, especially, when the U.S. Supreme Court has affirmed that LGBT couples are “Plan A” families in the eyes of the Constitution, I only hope that Ertman decides to write another book that builds on the important foundation that she has set.

 

1

When Love’s Promises Are Fulfilled By the U.S. Supreme Court

Today, in a 5-4 decision, the United States Supreme recognized the fundamental nature of love’s promises. In Obergefell et al. v. Hodges, the Court held,  “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”  Referring to marriage as a “keystone” of the U.S.’s “social order,” Justice Kennedy declared same-sex marriage bans unconstitutional. Importantly, the case makes clear that forcing gay couples to go across state lines to marry only to deny them the franchise after returning home undermines fundamental principles of liberty.

It’s no surprise that Professor Martha Ertman’s powerful book: Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families on which she copiously and beautifully toiled while rearing her son debuts the summer that equality in marriage becomes a fundamental right for gay men and women. Nor should anyone be surprised if the book, along with the decision itself, becomes a central text at universities and beyond. In what David Corn calls a “love letter to marriage,” from the pen of Justice Kennedy, the Court reasoned:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.“

With that, the Supreme Court overruled the prior judgement of the Court of Appeals for the Sixth Circuit and set in gear the reversal of centuries’ worth of stigma, shame and inequality, which may not erase overnight, but overtime will ease. Professor Ertman might also suggest that by the decision, the Court resituates contracts too. That is to say, if viewed from the lens of contracts, which serves as the core, theoretical foundation of Love’s Promises, this decision recognizes a fundamental right in contract for gay men and women. Further, the case expands the “contract” franchise to include gay women and men.

Some scholars approach gay marriage primarily from the constitutional liberties encapsulated in the 14th Amendment, upholding equal protection for U.S. citizens regardless of their status, others approach the issue as a matter of privacy. For Professor Ertman, contracts offer an additional lens and much to deliberate about on matters of marriage, parenting, and familial intimacy. Professor Ertman’s writings on contract (The Business of Intimacy,  What’s Wrong With a Parenthood Market?, and Reconstructing Marriage to name a few) precede the book, and presaged its birth.

Here for example, in a passage from Chapter Eight, she explains that “[i]t takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we call “mush.” From what started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement.” She tells readers, “On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she too feels that signing all those dotted lines brought a family into being every bit as much as vows of forever that we plan to recite…” As she explains, “if you scratch the surface of marriage—straight or gay—you’ll find contracts there, too.”

Professor Ertman urges us to remember time and again that what builds relationships and sustains them are the formal and informal contracting that take place daily in marriage; they establish the foundation for marriage and what comes after. She works diligently in the book to demonstrate love too undergirds contracts. That is to say, she wants readers to reimagine contracts—not as the products of cold, calculated bargaining or business arrangements—though one must acknowledge contracts can be that too—even in marriage.  Often marriage is the product of love, intimacy, and warm innocence.  At other times, it is the product of business arrangements.  It was that too in the U.S. chattel system: contracts that gave legal sufficiency to the buying, selling, bartering, and even destroying of slaves, including children (among them the Black biological offspring of slave owners). In light of that history yet to be fully explored and appreciated in law, it is a formidable task to resituate or reintroduce contract in the space of families and intimacy. However, Professor Ertman rises to that challenge.

Like it or not, contracts pervade marriage and suffuse premarital agreements. Sometimes contracting in this regard attempts to resituate power and status expost marriage, providing the economically weaker spouse economic stability after the breakup. Martha highlights cases from that of Catherine Simeone who received a “raw deal,” to those of celebrities, including Michael Douglas and Beyonce. Who knew that Beyonce would receive $5 million for “each of their children,” if she and Shawn Carter (otherwise known as Jay-Z) divorced? Professor Ertman might argue that despite the businesslike nature of contracts, these legal arrangements and agreements make most matters clearer for everybody. Professor Ertman explains that contracts and even verbal agreements provide information, they can provide context, and they offer choice.

In Ertman’s life, it was a contract that bestowed her wife, Karen, parenthood of their child—not something biological, legislative, or derived from courts. And she offers multiple reasons for readers to consider the salience of contracts in intimacy, including voluntariness, reciprocal promises, and equal status. She offers an additional reason: love’s promises.

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What Makes a Stranger Not So Strange

Most of the literature on trust among strangers comes from game theorists. Scholars perform simulations of so-called “trust games” to suggest that “impersonal trust” can develop under this or that circumstance. This literature is voluminous (the previous link is just one of many hits from a JSTOR search). The mere fact that trust among repeat actors can be seen in repeated evolutionary games should, at the very least, complicate a legal doctrine that necessarily extinguishes privacy upon disclosures. But you don’t have to understand (or agree) with game theorists to see the problem with such a bright line rule.

Over the last year, I observed different types of support group meetings, including Alcoholics Anonymous, Narcotics Anonymous, and an HIV-positive support group. I interviewed several members, though many members declined to be interviewed, as I expected. These support groups thrive on privacy and anonymity. The very characteristic that made me want to study them was the very thing that would make it hard: members of such groups tend to know everything about a specific area of each other’s lives (their addiction), but often know precious little about a participant’s life and identity outside of what brought him to the group in the first place. In many cases, outside of the sponsor-recovering relationship, even last names remain unknown. And yet they share a secret that, unfortunately, retains a significant stigma in greater society.

This knowledge asymmetry is not always the case, I must admit. But for now, let’s accept the scenario: Participants are veritable strangers, except they know this one big secret about each other. This was in fact the story for most of the people I interviewed. And although this type of ethnography must always be a dubious source for grand conclusions about wide populations, we can still ask: Why do recovering addicts share their stigmatizing secret with strangers?

My research suggests it is because they all share the same stigmatizing secret. It is not simply that everyone shares the same secret or the same identity. People who are all Libras or all white males or all like Maroon5 do not necessarily feel a comfort level with those who were born at the same time, look the way they do, and listen to the same music, respectively. Rather, the shibboleth of a willingness to open up among strangers in this context is that everyone shares a stigmatizing identity. They trust each other not because they know them but because they know what they’ve been through in the greater world. And this is entirely reasonable.

I think this trust exists in other areas of life and not just in the unique support group environment. If it does, if trust develops among individuals who share a stigmatizing identity, then trust among so-called strangers can exist such that individuals would not be assuming the risk of further disclosure of a secret revealed to such a stranger.

I have designed a study to test this, using accepting/declining “friend” requests from strangers as a proxy. It is an imperfect proxy, but trust is hard to measure. But if we can control for other factors and see that friend requests from strangers are accepted more frequently by individuals who share a defining, stigmatizing characteristic — sexual minority status, is just one example — then we may have found a social determinant of trust among strangers.

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Pro-Marriage Deregulation of Conjugal Unions and Marriage Equality: Two Sides of the Same Coin

I am delighted to be guest-blogging for Concurring Opinions this month. It is an honor to be part of this community!  Throughout February, I will be sharing my thoughts on how certain narratives are used in the Law to subjugate various groups based mainly on their gender and sexual identities, and how, in turn, such groups use or can use the law in their pursuit toward equality. My primary focus will be on Family Law, although in some instances I will explore its intersection with evidentiary and criminal law issues as well as with legal theory.

Without further introductions, I would like to begin discussing marriage equality, an issue that seems to intensify every day as courts and legislatures take action on the matter.  Throughout the history of the United States, marriage has been a divisive subject. States have used its regulation to sustain patriarchal, racial, religious and heteronormative compliance. At every proposed change to its structure (from the role/rights of a particular spouse to who is actually eligible to reap the legal privileges of marriage), different constituencies have reacted strongly. For example, let’s think back on the reactions to challenges to anti-miscegenation statutes, reforms to treat women as chattel, and marital rape. Undoubtedly, the controversy has always stemmed from the fixation of our legal system on using marriage as a proxy to grant rights and privileges, and, most importantly, as a mechanism to segregate and stratify citizens.

The preferred strategy to challenge this caste system has been to fight for inclusion under the rubric of a conjugal union. However, we should question whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or just a quick fix that serves some and leaves others behind; or even worse, a strategy that would create such a backlash that would leave a large group of people vulnerable.

The recent gay-marriage controversy in Oklahoma epitomizes this disjunction. On January 14, a federal judge ruled that Oklahoma’s ban on gay marriage is unconstitutional.  A couple of days later, Republican lawmaker Mike Turner announced that his party would look into the possibility of abolishing marriage as a way to circumvent the Court’s decision and safeguard the “traditional” notion of marriage.

Proposals to disengage the state from the business of regulating marriage are not new. In fact, I have been one of its most fervent proponents. Yet, there are many reasons for believing in marriage deregulation. I do, because I firmly maintain that true deregulation would be the appropriate solution for attaining a more egalitarian society, as it would result in what Professors Alice Ristroph and Melissa Murray have denominated familial disestablishment (the state recognizing the existence of diverse family arrangements and abstaining from favoring one type of family over others).

Other proponents, like Rep. Turner, advocate deregulating marriage on a “pro-marriage” basis. The ultimate goal of these proposals is to preserve the institution for the heterosexual couple. Turner does not wish to deny or take away from heterosexual couples the privileges that they have been enjoying for so many centuries.  Rather, he seeks to preserve the label of “spouse” as one exclusive to heterosexual couples.

What I suspect Turner has in mind is a scheme that does not truly disengage the State from regulating marriage, but that would regulate marriage indirectly through the regulation of the family. Abolishing marriage requires amending a considerable amount of statutes and regulations. For instance, in the federal system alone there are more than a 1,000 laws that use marriage as a proxy in one way or another to grant privileges/rights or impose obligations upon the spouses. If you are not willing to give up those legal benefits but do not wish to have the State granting marriage licenses, there are basically two ways in which it can be done: 1. replacing the marriage proxy with new proxies that resemble the heterosexual couple; or 2. granting benefits to marriages officiated by a particular religious or civil body other than the State.

In any case, that system would not guarantee that gay couples would be denied access to the same benefits that heterosexual couples currently do. If the second option is chosen, gay couples would only have to find a religious or civil body that would celebrate their marriage. On the other hand, if the first option is the preferred one, gay couples would still have access to “marital benefits”.

Even though courts, for the most part, have been avoiding the question of whether gays should be a protected class, they have found that under the rational basis test, treating gays and heterosexuals differently is unconstitutional as it does not further any legitimate governmental  interest. Therefore, those new proxies cannot be based on sexuality. They could, however, be based on having kids and being in a committed long-term relationship.

A lot of gay couples fit this bill.  Thus, the State would not be able to deny them benefits under that scheme. Yet, that would mean that gay and straight couples without children would not be able to enjoy those privileges.  At the same time, it could disincentive some gay couples from marrying since they might not be able to enjoy the traditional benefits of marriage because they do not want children or simply cannot afford them, or because the added social value of being recognized by the State as a “couple” would be completely lost.

A proposal like this would constitutionally leave vulnerable more people than our current scheme. Moreover, this type of reaction unmasks what is really behind the regulation of marriage: the fact that we still adhere to an unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children. The law is a mere tool to channel people into this euroheteropatriarchal behavior.

A perfect example of this channeling function of the law is how the queer movement changed its narrative from embracing diversity and celebrating queerness to the commonplace slogan of we are just like you. This strategy has been highly criticized within the queer community for prioritizing marriage equality over other pressing issues, for advancing an agenda that only benefits a small group of the community (the one that complies with societal norms except for their sexuality), and for channeling people into a heterosexual model of living and experiencing romantic-sexual relationships. Furthermore, it has been condemned inside and outside the queer community for not advocating for legal recognition and access to government support programs for a wide range of relationships, households and families regardless of kinship, conjugal status or citizenship, and for failing to advocate true separation of church and state in matters including regulation and recognition of relationships, households, families, sexual lives and gender choices. Then again, even under the “marriage equality” agenda a lot of people are left vulnerable. Even worse, they are invisibilized.

The only way to truly achieve a more egalitarian society is a complete obliteration of the marital institution. Doing so will force us to re-examine all the laws that make reference to marriage and scrutinize the real purposes for which the laws were supposedly enacted. Furthermore, it would require us to make sure that such purposes are finally followed by granting protections to all types of families/households/relationships. Only then would we be able to recognize the plurality within our society and allow people to live their romantic-sexual lives without the fear of being subjected to a regulatory scheme that ostracizes them or channels them into something that they are not based on inane beliefs about human nature.