Tagged: Family Law

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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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A Practitioner’s Reflections on Wedlocked

A Practitioner’s Reflections on Wedlocked

Reading Katherine Franke’s book really got me thinking about marriage and what it has meant and means to the LGBT community.  It was very helpful to contrast the experience of our community today to what took place 150 years ago in the community that obtained freedom from slavery.  Franke uses the hope of “freedom” to discuss the drive for marriage in both communities.  But in reviewing her work, and my experiences as a lesbian activist attorney representing individuals in the LGBT community for the last 35 years, I would characterize this notion of freedom instead as the freedom to “belong.”

When I came out in 1971, the possibility of marriage equality was not even a concept that was discussed in my political circles of lesbian feminists.  If marriage was a topic of political discourse, it was only to name it as the “great Satan,” a scheme to force women to be part of the patriarchy, with no real benefits to wives and mothers.  However, my friends and I talked endlessly of our families, how to come out, how to be authentic, how to be recognized as ourselves, and whether any of this was really possible.

Later, I went to law school, and eventually went into private practice, working mostly in the LGBT community in the Washington DC metropolitan area.  I also taught as an adjunct professor in the graduate program of Women’s Studies at George Washington University and at the Washington College of Law at American University, teaching courses on Women and the Law, AIDS and the Law and Sexual Orientation and the Law.  Currently I teach Legal Ethics as an adjunct at WCL, and am a founding partner at Zavos Juncker Law Group, PLLC , which practices family law in the Washington DC metropolitan area.

I look back at the AIDS crisis in the late 80’s and the early 90’s and the clients I represented then – going into hospitals, trying to get partners in to be with dying men, keeping families of origin from taking bodies back to places my clients had fled long ago.  I wrote estate planning documents that tried to insure that partners and friends could make medical decisions instead of parents, that possessions, whatever they might be, would go to someone’s chosen survivors.  Survivors questioned why they were not recognized for who they were to the men who died.

Then came the Sharon Kowalski case.  Her partner, Karen Thompson, was prevented by Sharon’s family of origin from seeing and caring for Sharon after a horrible accident that left Sharon totally incapacitated.  A book was published – Why Can’t Sharon Come Home – that turned Sharon’s case into a rallying cry in the lesbian activist community for “family” rights for Karen, and by extension, all of us in the LGBT community.  We began to understand that our families were important, that we had a right to legal protections for them, and most crucial, that we had a right to have them.

At the 1987 March on Washington political activism in the LGBT community exploded.  Legal organizations focused on establishing rights for lesbians and gay men.  Around the same time lesbians began having children as lesbians, and looked for ways to protect their familial relationships, most of which centered on creating legal relationships between a non-biological mother and the couple’s children, and preventing a donor of semen from exerting parental rights.

The issue of creating marriage equality began to be discussed, with lesbian activists declining to support the “great Satan,” and gay men enthusiastically embracing the idea.  (Obviously I am talking in broad sweeps here.)  See the discussion between  Paula Ettelbrick and Tom Stoppard while they were both at Lambda Legal.  Eventually this new way of looking at our families morphed into Evan Wolfson’s focus on establishing marriage equality, even with little initial support from many LGBT groups.  Soon, there was great enthusiasm for marriage equality in most parts of the LGBT community in the United States.

Before Windsor and Obergefell, my clients were interested in doing their estate planning, their second-parent adoptions, and anything else I could recommend that would protect their families.  Those families consisted almost always of a couple and sometimes children at first, and now almost always children.  Many of those couples had had a “commitment ceremony” that mimicked a wedding.  Then they often entered into a civil union in Vermont.  Once marriage became available in Massachusetts, many went there to be married even though their marriages were not recognized in their home jurisdictions or on the federal level.  They just wanted to be married.

Why?  I don’t think it’s about freedom exactly.  I think it’s the freedom to be like everyone else  I think it is about belonging.  Most of my clients, and many of my friends, wanted to have weddings.  I still don’t completely understand it, but there it is.  Hundreds of guests, bridal gowns and/or tuxes, in a church or synagogue, the imprimatur of acceptance by society.  Even very close friends of mine, long-time activists, had a religious ceremony after marriage equality came to the District of Columbia.  My partner and I got married in a three person wedding (think benefits) – us and the judge I clerked for – and after my mother heard about it she was incensed that she wasn’t there.  This after Ellen and I had been together for 17 years!

What is all of this about?  To some extent I liken this to my clients who had children together, then went through a second-parent adoption.  After the adoption was finalized, many of them would say “now I am a real parent.”  Not a legal parent, but a real parent.  There was something about that legal process that made them feel that they belonged.  A chosen family was not enough.  Love was not enough.  Intention was not enough. They needed a court, part of our social structure, to say they were real parents.

I think it is the same with marriage.  No matter what structures we create, nothing is the same as marriage.  Marriage is in the fabric of our society – our laws, our distribution of benefits, our legitimacy as families.  I am not saying that I agree with this structure, but that is what I see.  For most people, that is fine.  They want to be part of it.  They want their families to be legitimate.  They want to belong.

Franke’s comparison of marriage equality now to people coming out of slavery is interesting.  I think she is absolutely right about race being a fault line.  Leaders in the fight for marriage equality were mostly white gay men.  Most activist lesbians were not interested in that fight because, as women, there were many other issues they wanted to address.  After sodomy was decriminalized in Lawrence v. Texas, white gay men turned to inclusion in the military and then to marriage equality as the next big issues.  The military?  Marriage?  More belonging.

The advantages of marriage equality were seen as far greater for them than women.  Franke shows that the same was true for newly freed Black people.  There were so many issues for that community to struggle with, why would obtaining marriage really change its position after slavery?  Particularly for lesbians and Black people after the Civil War, marriage was not the answer to most of the discrimination those communities faced.

And yet, people get married when they have the opportunity.  Perhaps it’s the distinction between public and private, or between micro and macro.  From what I hear from my clients, it’s not about the benefits, or legal protections, although those are nice, it’s about the ring, it’s about the wedding, it’s about the pictures, it’s about the family.  So couples marry when they can, and most people long to get married, now, even LGBT couples, and before, people coming out of slavery.  Franke says we should be careful what we ask for.  I think most LGBT couples got just what they asked for – they want to belong.  Marriage equality has given them that opportunity.

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Is Marriage Equality A Zero-Sum Game?

Katherine Franke’s Wedlocked offers a provocative and cautionary tale about marriage.  Drawing on the decidedly mixed experiences of African-Americans who gained the right to marry following the Civil War, Franke argues that, for gays and lesbians, pursuing freedom and equality through marriage is risky business. Access to marriage, Franke suggests, is likely to be a zero sum game, and achieving it may do more harm than good — both for the lesbians and gay men who embrace it and for those it leaves behind.

The historical chapters of Franke’s book are original and compelling. She shows how the intertwining of marriage and emancipation unleashed a racist backlash during and after the Civil War – a backlash that increased the vulnerability of African American women and children, and conscripted many women into gendered roles that they had little interest in inhabiting.  Franke also shows how the right to marry facilitated coercive state intervention in the intimate lives of the newly emancipated citizens  through aggressive enforcement of bigamy, fornication and adultery laws.  As Franke explains: “Once married, many freed people learned the hard way that marriage and rules and that breaking those rules could be very costly, if not deadly.”  That these interventions were often initiated by other members of the African-American community only exacerbated their negative impact.  Franke’s rich historical analysis demonstrates convincingly that, for African-Americans after the Civil War, the right to marry was a Faustian bargain.

Franke’s efforts to apply this history to the contemporary marriage equality movement are somewhat less convincing. To begin with, those efforts are complicated by the significant and rapid developments that took place during the time it took to write the book. To her credit, Franke acknowledges that the lesson she initially intended to draw – that the success of the marriage equality movement would unleash a backlash of homophobia similar to the post-Civil War backlash against African-Americans — has not come to pass.  Instead, the views of the public on same-sex marriage — like the views of President Obama – have evolved.  The Supreme Court’s Obergefell decision (handed down after the publication of Franke’s book) both reflects and is likely to accelerate this evolution.

So Franke focuses on several other lessons. First, she argues that marriage may have negative consequences for the gay and lesbian couples who opt into it. Second, she claims that marriage may have negative consequences for those members of the gay and lesbian community who choose not to marry and, more generally, for gay identity as a whole.  Third, Franke suggests that the success of the marriage equality movement may have come at the expense of other subordinated groups, particularly African-Americans.  Although Franke has interesting things to say about all three claims, I find her second and third lessons more compelling than her first.

Franke’s first claim is that marriage harbors disadvantages for the same sex couples who succumb to its lure. She argues that marriage provides a gendered script that fits poorly with the realities of same-sex relationships. In particular, she claims that the financial sharing rules that govern the formation and, more importantly, the dissolution of marital relationships are at odds with the expectations of many gay couples, and that efforts by gay spouses to “opt out” of these sharing rules may have negative consequences for women in more traditional, heterosexual marriages.

As a family law professor, I find these concerns unconvincing for several reasons. For one thing, they appear to be based on an outdated understanding of the laws that govern marriage and divorce.  Under the current no-fault divorce regime, the sharing obligations that accompany the dissolution of a marriage are quite thin.  Post-divorce financial sharing (via alimony or spousal support) is the exception, rather than the rule, and long-term support is extremely rare.  And while divorce statutes in almost all states provide for the equitable (but not necessarily equal) distribution of marital property, this generally applies only to property acquired during the marriage and it does not include professional degrees or other human capital assets.  As a result, most divorcing couples have little property to divide.  The most robust family sharing rules today are those that require parents to support their children financially, and those obligations are no longer tied to marriage in any meaningful way.

Perhaps more important, the sharing obligations that are tied to marriage operate as default rules, and couples are generally free to contract around them, either at the time they enter into marriage or at the time a marriage ends. Franke is correct to point out that some states require such opt-out agreements to be in writing (as is true for other types of important contracts), but Franke mischaracterizes the current legal regime when she suggests that gaining marriage rights entails “surrendering the breakup of your relationship to the governance of rules set by the state rather than the ad hoc improvisation that same-sex couples used before they were able to marry.”  Both same-sex and opposite-sex couples are free to negotiate and to improvise, whether or not they decide to marry. To be sure, these negotiations take place in the “shadow” of the law’s default rules.  And what marriage does is switch the default position – from the absence of any financial sharing unless a couple specifically opts to share, to some time-limited sharing, unless a couple expressly agrees otherwise.  To this extent, marriage may improve the bargaining position of a financially dependent spouse at the time a relationships ends, but that is not the same thing as being tied to a gendered script or surrendering the terms of your break-up to the state.

I am similarly unconvinced by Franke’s suggestion that allowing gay men and lesbians to contract out of the default rules of equitable distribution and support “would threaten to undo decades of feminist reform of the law of marriage.” While some feminists have pushed for greater sharing of the financial gains and losses associated with marriage, these efforts have not fundamentally altered the “clean break” philosophy of modern divorce law, and they have generally been accompanied by a healthy respect for the role of voluntary agreements.  Moreover, this argument sounds disturbing similar to claims made by opponents of same-sex marriage that allowing gay couples to marry would somehow undermine their own, heterosexual unions.  In both contexts, the argument seems misplaced.

More convincing is Franke’s second argument that the availability of marriage will disadvantage gay men and lesbians who choose other forms of intimate relationships. As she puts it:  “Gaining the right to marry risks bringing with it 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.”  This is an important concern, and while Franke is not the first to raise it, her historical analysis adds a powerful dimension to the argument.  For example, she shows how, in the aftermath of the Civil War, the newly-won right to marry morphed into a duty to do so, and African Americans who remained in less formal, or more fluid intimate relationships often paid a steep price. Franke suggests a disturbing parallel in recent, post-marriage equality efforts by some jurisdictions to automatically convert existing domestic partnerships into marriages and by some employers to eliminate or limit to married couples benefits they previously extended to non-marital partners.

Franke also suggests that gaining marriage rights may threaten the gay community’s own history and identity. In particular, she claims that marriage threatens “to pull the sex out of homosexuality” and to drive a wedge between acceptable and unacceptable gay lifestyles.  Marriage, she fears, risks shifting “a badge of inferiority from decent same-sex couples – many of whom are portrayed in the media and in legal papers as wanting dignity for themselves and their children that only marriage can confer – to indecent others whose intimate attachments don’t or won’t march politely down the aisle.”  Justice Kennedy’s majority opinion in Obergefell — which contrasts the “dignity” and “integrity” of marriage with the “loneliness” of other family forms — certainly validates these concerns.

Even more provocatively, Franke suggests that the success of the marriage equality movement may have come at the expense of other stigmatized groups, particularly African Americans. She claims that homosexuality in general and the marriage equality movement in particular “enjoy a kind of racial privilege” that has contributed to its success.  “For better or for worse, in some circumstances winning marriage equality has been a zero sum game that has entailed shifting the stigma same-sex couples have endured to other already stigmatized groups, particularly poor African American women and their families.”  These claims are troubling and worth taking seriously. To some extent, they parallel the critique leveled by feminists of color who pointed out that efforts by privileged (white) women to achieve equality in the professional and corporate sphere often depended on the less visible and poorly compensated domestic work of poor women of color.

But access to marriage need not be a zero sum game, and Justice Kennedy does not speak for all supporters of marriage equality. Indeed, as Franke suggests in the Appendix that she captions  “A Progressive Call To Action for Married Queers,” there is much that both gay and straight supporters of marriage equality can do to ensure that marriage remains a right, rather than a duty, and that it augments, rather than displaces, other forms of intimate relationships.  Supporters can resist the repeal of domestic partner benefits programs; they can avoid arguments that disparage non-marital families and non-reproductive sexual activity; and they can link strategies to fight homophobia to other causes such as anti-racist organizing or defending reproductive rights.  Such efforts are made easier by constitutional and family law doctrines that limit the state’s ability to regulate intimate conduct and that protect a far broader range of family and relationship choices than was the case a century (or even a generation) ago. These developments suggest that opening marriage to same-sex couples may have positive, as well as negative externalities, and that both gay and straight progressives have the opportunity (and perhaps the obligation) to help bring about those positive externalities.  In this respect Wedlocked may be as much a call to action as it is a cautionary tale.

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Queering the Family in an Age of Marriage Equality

It was a pleasure to read Katherine Professor Franke’s provocative book, Wedlocked, and an even greater pleasure to be able to engage in this on-line discussion about Professor Professor Franke’s long simmering work. As a lesbian of African descent raising bi-racial children with a Latina co-parent, I came to this book with personal and professional relationships to many of the topics about which Professor Franke writes so eloquently. I left the experience of reading her book with numerous thoughts and questions to which I cannot do justice in a blog post. So, recognizing that I cannot do it all, I’ll use my space to reflect on one piece of Professor Franke’s narrative that resonated strongly with me, which is contemplating how families with children created by lgbt people do or do not radically, or even modestly in some cases, actually queer the idea of family. By this I mean, as I’ll explain in more detail below, just as is true in the context of marriage, being queer and creating a family does not always mean that you have queered the family. In that case, then, I wonder what it means to queer the family in our modern context and, perhaps more importantly, what we gain or lose by couching the narrative of change in the idea of queerness rather than using other language to describe and understand the end of the hegemony of the nuclear family.

My scholarly work exists at the intersection of family law, bioethics, and reproductive justice, with a particular focus on assisted reproduction and how non-coital forms of baby creation can, but don’t always, challenge traditional notions of family and belonging. Consequently, one piece of Professor Franke’s book that deeply resonated with me was her discussion of the ways in which same sex couples engage in a process of queering the family by virtue of how they create families with children. Professor Franke gives 3 such examples, one involving a very open open adoption of an infant by two African-American lesbians who, it appears, have been significantly integrated into the birth family of their child; one involving two white gay men who hired a gestational surrogate with whom they continue to have contact long after their child’s birth (In the interest of full disclosure, like Professor Franke, I am friends with the two men about whom she writes and am thrilled about the family that they were able to create); and another involving a male couple and a female couple who created biological children together and raised those children with the lesbians as primary parents and the men as loved family figures who are not social parents.

Professor Franke offers up these stories to illustrate how gay people, like African Americans (and, of course, these groups are not mutually exclusive), have played with, rejected, and, in some cases, transformed the traditional/nuclear family. She explains, “These three stories are typical of the ‘queerness’ of many families being formed by lesbians and gay men who want children in their lives.” I’m unsure what to make of the quotation marks that she uses around the word queerness, but it is the use of that word that is especially striking to me. I am happy to praise and celebrate the ways in which these families got created with care and deliberation. I also think, though, that it’s critical to recognize the ways in which they might not be all that queer depending on how that word is being deployed. If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional. If we mean something more specific by using the term queer, perhaps requiring parents who identify as lgbt, then all of the families that Professor Franke describes surely qualify, but at that point the designation of queer sweeps in huge numbers of families that are almost identical to traditional family structures save for sex or gender identity. So, what makes two white gay men with financial privilege hiring a surrogate to carry a child for them and maintaining a relationship with that surrogate radically different from a white man and white woman (married or in a serious long-term relationship) making the same decisions? And when I think of the lesbians who are clearly committed to creating a family structure for their daughter that allows her to maintain close ties to her birth mother and her extended family of origin, I read that story not as a queer story per se, or certainly not only a queer story, but as an example of the kinds of extended networks of kin, caring, and community that have so long been a deep part of African American familial traditions extending to those families created by same-sex couples. The story, then, is best told as an intersectional one about how multiple identities shape the families that we create.

That I’ve opted to focus on what perhaps appears to be such a small part of Professor Franke’s broad and exciting narrative may seem out of place or out of touch, but I am fascinated by this question of how we understand what it means to dismantle dominant family structures and conquer familial hierarchies. I share Professor Franke’s concerns about how some of the legal strategies used in marriage equality litigation may actually have damaged those who create what I tend to describe in my work as outsider or marginalized families, rather than queer families. For me, the important dividing line in how families exist in our world is the distinction between families that can be formed by law and protected by law versus those that are treated as anomalous, or inferior, or even thought to be dangerous by some conservative politicians and policymakers. These outsider families are not necessarily radically upending notions of family and thus may not fall neatly into how some think about what it means to queer family. In fact, they may be much more closely aligned with traditional notions of family in many ways, but they are not granted legal legitimacy because they do not wholly track what has long been deemed the norm.

I am deeply mindful of the critical ways in which outsider families can create impacts beyond the circumstances of the individual family members such as in Moore v. City of East Cleveland in which the Supreme Court struck down a statute that excluded certain non-nuclear family units from living together in the City of East Cleveland (in that case, the offending family consisted of a grandmother, her son, and two grandsons) or consider how same sex couples are pushing some family courts and state legislatures to acknowledge more than a two parent dyad for any one child either through legislation or through case law. These are changes that matter and that make it harder to claim that there is one family structure that rules above all others. But, as we push the boundaries of family, as Professor Franke warns in the context of her history of marriage for freed slaves and for lgbt people in our present world, we should be careful what we wish for. We do not want to reinforce familial hierarchies by forcing people into specific family arrangements in order to warrant recognition (2 parents only), nor do we want to fetishize outsider families such that those who do not fit that model are denigrated for their choices (i.e., the adoptive parents who choose a closed adoption or the birth mother who opts for such an adoption thus perhaps not being queer enough in their choices). In thinking about the ways in which reproductive justice calls for us to respect the right to have a child, not have a child, or parent that child in a safe and healthy environment, the upshot for me is that the reproductive justice paradigm does not demand that outsider families conform to some particular form in order to help dismantle hierarchy. The end goal, or at least one end goal, is to recognize that most orthodoxy about how people choose to wrap themselves in the webs of dependence and intertwinement that family connotes are deeply personal (though not necessarily private) and the job of our laws and policies is to facilitate these personal choices without unjustifiable bias or prejudice. And as the demand for equitable law and policy continues, as Professor Franke makes clear, those demands for protection and acknowledgment can help to de-center marriage in family life, which is almost certainly a good thing for many people.

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A Historian’s Comments on Katherine Franke’s Wedlocked

In Wedlocked: The Perils of Marriage Equality legal scholar Katherine Franke compares the African American experience with marriage in the wake of the Civil War, with the quest for marriage equality for queers. Relying on a wide variety of archival sources and the experiences of lawyers specializing in queer family law, Franke details the problems that African Americans faced in their first encounters with marriage, drawing vital conclusions about the care queer people should take when we consider the implications of our newly won right to marry. As Franke so astutely asks, why should queers, who only recently gained the right to be free of state criminalization of our sexual lives in Lawrence v. Texas (2003), immediately invite the state to regulate those newly gained sexual freedoms through the institution of marriage? This question seems especially important given the profoundly gendered nature of Anglo-American marriage. Why would a people, who, by the very nature of our desires, trouble the gender binary, sign up for an institution that has historically been premised on it? Marriage, as Franke states, has “its own well-entrenched agenda” and thus “is a particularly value-laden institution within which to lodge claims for full citizenship.” (143)

Franke frames each chapter with a discussion of African Americans initial experiences with marriage, and thus, with the state. Rather than freeing black families to organize their families as they pleased, she finds that marriage instead opened them up to new forms of white violence, domination and control. For example, in the wake of the Civil War, Franke demonstrates that many states automatically married African Americans who lived in relationships that appeared “marriage-like” without their consent, or at times, even knowledge. People who had been living together in a variety of arrangements suddenly found themselves actually married. This preemptory state move did have some positive effects. After all, marriage licenses cost money– money that most couples in desperately impoverished African American community did not have. However, this also resulted in couples who had no intention of marrying, or any knowledge of the legal requirements of marriage, ending up married.

These automatic marriages opened African Americans to state discipline when they violated the laws governing marriage, such as monogamy and the need for divorce when ending relationships. This proved particularly devastating when the state, often at the instigation of jilted partners, began to prosecute African Americans for crimes directly related to their status as married or unmarried people—bigamy, adultery and fornication. Franke speculates that southern state governments bent on maintaining white supremacy, might have deliberately used violations of marriage law to deprive African American men of the vote, as many states then and now, had laws that disfranchised felons. Even more pernicious, she also wonders if states may have been motivated to prosecute African American men to pull them into the convict lease system. Convict lease, the use of convicts as unpaid laborers for either private or state projects, became a virulently exploitative form of labor discipline directed against African Americans well into the twentieth century.

Franke’s second major point revolves around the formation of alternative structures of family in both the African American and queer communities. Slave law (which traced descent through the mother) combined with traditions brought from West Africa, made slave families broadly matrilineal and matrilocal. Furthermore, the pressures of slavery, particularly the need for abroad marriages (husbands and wives who lived on separate plantations) and forced separation through sale, produced both polygamy (also found in West Africa) and serial monogamy. Finally, the disruptions of slavery encouraged a commitment to much broader family ties among slaves than among whites in the antebellum period. Slave communities relied both on extended kin, particularly aunts and grandmothers, and on what anthropologists call “chosen kin,” people with no blood ties who nevertheless take on family responsibilities. Historians have argued that this diversity of family forms encouraged resiliency among both individuals and the broader African American community.

While feminist historians have rightly cast these differences in a positive light (feminist evolutionary biologists point out that matrilineality produces better child outcomes than other systems), Franke demonstrates how whites (then and now) used diversity in family forms as proof of African American’s racial inferiority. Because they did not or could not always follow the “ideal” nuclear family form with a breadwinning husband and an economically dependent wife, whites consistently denied African American humanity. Denigrating them as inherently “immoral” people who had disorganized and dysfunctional families, whites in the 19th century argued against African American claims for citizenship rights.

Like African Americans, queers have developed a variety of family forms and embrace a much broader definition of family membership. Historically, queer couples, particularly men, have negotiated rather than assumed monogamy, even in long term relationships. Queers also rely extensively on “chosen families” made up of friends and ex-lovers. Finally, when they have children, queers deploy a number of strategies that, Franke points out, stretch the boundaries of legal definitions of families. In addition to the more “homonormative” (to borrow Lisa Duggan’s apt term) choices like couples adopting children, or having a child through ART, some queer folk create families with more than two parents. A lesbian couple, for example, who ask a gay male friend to provide sperm, might also ask him to be a “duncle” (donor uncle) who maintains a relationship with the child that, while not like a father, still provides important support and love. There are a myriad of ways in which queer families strain the traditional legal definitions of family with alternative models that, like strategies among African American, increase our resiliency.

Given these shared characteristics, Franke cautions queers about the dangers that marriage may pose to these much broader family ties. First, she points out, marriage would not protect any of these relationships. The fact that a lesbian couple could marry, for example, would do little to solidify their gay donor’s relationship to their child, much less, say, that of his siblings who may well be functioning as a third set of aunts and uncles. Second, Franke points out that the marriage equality movement itself has cast families not based on marriage as inferior and dysfunctional in order to emphasize the harm produced by policies that restrict marriage to one man and one woman. In their attempts to win marriage equality, she argues, proponents for marriage equality have thrown the rest of our family forms under the married nuclear family bus.

Finally, the granting of marriage equality has, in many states, actually damaged the ability of people to protect family members through means other than marriage.   In many states that have granted gay marriage, legislatures and private institutions have eliminated with domestic partnership registries or benefits. This denies all couples the right to choose between marriage and other kinds of relationships. As Franke points out, some couples may not be interested in the full set of responsibilities contained in marriage, but may still want the more limited set of benefits that derive from domestic partnership. Among other things, while marriage is easy, divorce can be difficult and expensive. Many couples may want to be recognized as partners, but might not be ready for marriage and the attendant risk of spending a lot of money should they break up. All in all, Franke is absolutely right that marriage does not solve all of our complex family problems, and in fact, when not thought through carefully, it may increase them. She argues persuasively for more choices in our family forms, rather than fewer.

Since I have been brought on board as the pet historian, I do feel I must add a little historical context to Franke’s text. Her arguments about the dangers of marriage are apt, but she provides little explanation, beyond a desire for “equality,” as to why the queer community turned to marriage. This leaves the reader wondering why in the world we would pursue such clearly problematic strategy, especially since, as Franke rightly indicates, gay liberation and feminist activists of the 1970s rejected marriage as an oppressive institution. The answer, of course, lies in the very real family crises the queer community confronted in the 1980s. As historian George Chauncey argues, both the lesbian baby boom and the AIDS epidemic forced the queer community to confront the problems attendant to having no easy way to legally acknowledge our family ties. Issues of custody, medical decision making, benefits and inheritance compelled us to turn to marriage as a one-stop-shopping for family rights in the context of the life and death decisions we confronted. In fact, had U.S. law not attached so many rights and benefits to marriage, it seems unlikely queers would have pursued marriage as a goal. (Chauncey, Why Marriage, 87-136))

To me, the most interesting part of Franke’s argument lies in the discontinuities rather than continuities between African American experience in the wake of the Civil War, and contemporary queer experience. She expected, for example, that queers, like African Americans, would experience an upsurge in discrimination and hostile attention from the state upon marriage. But this has, she freely admits, largely failed to happen. Similar to African Americans who brought their spouses before the courts for adultery, some queers have used the rules of marriage (and particularly the assumption of monogamy) to disadvantage ex-partners in matters of child custody and property settlement. She also has found a revival of interest among conservative lawmakers to strengthen (rather than doing away with) state laws against sex crimes like fornication and adultery, which are rarely enforced but remain on the books. However, Franke did not find that states used these laws disproportionately against queer people in the wake of queer marriage victories, as states did against African Americans in the 19th century.

Franke attributes this difference to the way gayness, and by extension, marriage equality, have broadly been seen as white, even if, in fact, many people of color identify as queer. She points out that most of leadership of “big gay” organizations are white and middle class, as have been the majority of plaintiffs in gay marriage cases. This perceived whiteness has increased the respectability of the movement, perhaps to the detriment of African American families, who have been unable, as hard as they try, to shed racist stereotypes of family disorganization and dysfunction.

Second, Franke argues that seeking civil rights through marriage itself represents a “traditional,” perhaps even conservative path. Marriage equality advocates have argued that they should be allowed to participate in marriage as it is currently defined. They have not, for example, pointed out the myriad of ways having two men, or two women, marry might challenge the deeply gendered nature of the institution itself. As she explains, “when the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.” (203). Gay marriage, she argues, has allowed gays to take the “sex” out of “homosexuality.” It has allowed us to make homosexuality about family, intimacy and caregiving, rather than various kinds of stigmatized sexual activities, which, she and I both agree, continue to be fun, and worthy of championing.

Franke then raises, but does not answer, the essential question of why blackness has continued to carry such negative valences, even as queers have been able to “rebrand” homosexuality as family friendly, all-American and not really about sex at all. Here, my work on the relationships between gays and family in the post-war period may provide us an answer. Very broadly, I argue that the gay community’s strategy for gaining social acceptance put family bonds to the work of destigmatizing homosexuality.

“Coming out,” first popularized with gay liberation in the early 1970s, asked queer people to tell family and friends about their sexual orientation. The idea was that this would liberate them as individuals, but that it would also liberate the community by challenging heterosexual family members to rethink long held negative stereotypes about homosexuality. Furthermore, once out, the lived experience of queers in America exposes our kin to the depth of hostility and discrimination we face. However, the intense racial segregation of most American cities, ensures that we continue to live, work, and go to school with our own racial groups. U.S. public policy in the 20th century, particularly the Federal Housing Authority, actively promoted segregation, denying both whites and racial minorities the opportunity to live and go to school together, and therefore to know each other in intimate and productive ways. This is one of the many forms of systemic racism white Americans continue to ignore. Deploying kin and the bonds of love in the service of liberation has been a tremendously successful strategy for queers, and it explains why we, as Americans have come so far in such a short period of time on issues of sexual diversity, but have, at the same time, failed to make much progress addressing race, racism, and profound racial disparities.

Franke’s text is a reminder to the queer community that we are at a political and moral crossroads. While we still face some forms of discrimination, particularly the violence directed at trans folk, the fortunes of gender normative queer people have risen substantially. Having engaged in so much creative work around family, equality, and liberty over the last fifty years, we must now choose whether to retreat with our (now) homonormative families to the white suburbs, or to continue the fight for greater equality for all Americans. We know the vicious sting of discrimination, and we know what it’s like to fight desperately for our families as we define them. The question is, will we take those lessons into the fights against poverty and racism? History will judge us in the alliances we make, and the battles we bring. Like Franke, I would like to see us to continue in our queer battle to support all families, not just the ones we can defend through marriage.

 

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Call for Papers: Leading From The South: Politics Of Gender, Sex And Sexualities

The South-North Exchange on Theory, Culture and Law (SNX) – LatCrit invite you to submit proposals to participate from its 2016 Conference: Leading From The South: Politics Of Gender, Sex And Sexualities to be celebrated in Santo Domingo, República Dominicana from May 19-21, 2016.

To be considered for participation, please send an abstract (500-600 words) and your contact info by February 15, 2016 to: snx.latcrit@gmail.com. Decisions will be announced February 29, 2016.

We invite papers across disciplinary boundaries and from all constituencies, on how the global South has been leading current shifts in the politics of gender, sex and sexualities. Specifically, we seek to examine and explore past and present South-North relations regarding the legal treatment of subjects in terms of their sex, gender and sexual identities. We seek to establish a fruitful interdisciplinary dialogue that would proffer a holistic perspective on how certain policies have shaped and will shape the social and legal regulation of subjects based on their gender, their bodies and their desires. For that reason we seek papers on: Marriage, Families, Adoption, Labor, Violence, Child Rearing, Children’s Rights, Reproductive Rights, Poverty, Immigration, Discrimination, State Protections, State Criminalizing Practice, Emerging fields of State Regulation, and Health (among others).

The conference’s proceedings will be held in Spanish and English (with simultaneous translation). For more detail see the official Call for Papers attached.

Follow us on Facebook! (www.facebook.com/snxlatcrit)

If you have any questions, email Prof. Aníbal Rosario Lebrón at: arosario-lebron@law.howard.edu.CFP

 

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Weiner’s Response to Comments about the Parent-Partner Status

Introduction

As the date for this symposium drew near, I grew both excited and terrified. The excitement stemmed from the fact that seven insightful and well-respected family law scholars were going to read and comment on my book. Not only would my book have an audience, but the audience would be composed of people whom I knew and respected! That excited me. The terror came from my fear that those readers might hate the book.   I confessed to one of my Oregon law colleagues that the fear kept me up at night. He reminded me that academics are supposed to be critical, test ideas, and engage in discussion. He warned me that no blog post would simply say, “I completely agree with the book.” While I knew this fact even before he spoke, his words brought me some peace of mind. Our job is to discuss and to question.  In fact, I myself had critiqued some of my co-participants’ work in my book.

When the blog posts started emerging (and the first four appeared quickly in succession on Monday), I felt a great sense of appreciation that the participants had taken the time to read my book, and had shared their thoughts about it with the world.  I, of course, was also relieved that people found the book interesting and provocative. The participants did not always agree with me, but I found each blog post fascinating, cogent, and deserving of a response. The symposium had instantly achieved my own personal goal of providing a starting point for a conversation.

After reading and pondering all of the blog posts, I was struck as much by what the commentators did not say, as what they did say. While I will engage with each of the author’s comments later, it is notable that no one took issue with the idea that a status might offer great benefits for children and society. No one disputed that too many children are disadvantaged because of suboptimal parental relationships, including a failure of the parents to work together as a team for their children’s benefit. No one disagreed with my claim that it was unfair that society had not given a name to the relationship of so many children’s parents, let alone a structure that might foster supportive behavior between the parents. No one questioned the law’s ability to create a social role, and the effect that a new social role might have on ill-advised reproductive behavior and detrimental parental behavior. The reviewers also left untouched the claim that the status might foster love and civic virtue.

I don’t want to read too much into the silence surrounding these and other topics, for the reviewers understandably focused on the issues that most concerned them. Their silence may not signal agreement with my analysis. Nonetheless, I am going to take it as a positive sign that the book’s basic argument was not challenged. Instead people mostly raised questions about various obligations (e.g., was the content of relationship work appropriate) and potential disadvantages to specific obligations (e.g., would the obligation to give care or share disproportionately impact low-income or minority communities). People’s comments also suggested that they were receptive to the general idea. One participant thought the book “makes a persuasive case for seriously considering the adoption of such a status,” another said the status “is clearly promising enough to be worth a state experiment, or two or three or four,” a third participant concluded, “I fully support Weiner’s larger project of inculcating a stronger tie between parents to promote the well-being of children,” another stated, “I have no problem with three of the five duties,” and yet another indicated that the book was “compelling…on why we need to create a new legal status.” As I said at the end of Chapter 8, “[T]he legal obligations are just the details and details about which we might reasonably disagree. They should not detract from the conclusion that flows from the foregoing analysis: a parent-partner status is warranted.” (p. 318). It seems as if my co-participants might agree; if so, we should work together in the future to identify other inter se obligations that might better constitute the status than those that they disliked. Of course, this future project might become unnecessary if I can convince them here that all of the obligations are warranted.

Before I address each participant’s comments, I want to thank the organizer of this wonderful symposium, Solangel Maldonado. Professor Maldonado has written with great insight about the discrimination that nonmarital children still face as well as the importance of the relationship between divorced fathers and their children, among other things. I feel honored that she chose my book as the centerpiece for a conversation about the future direction of family law. If it weren’t for Professor Maldonado’s initiative and organizational skills (e.g., identifying participants, getting materials out in a timely fashion, and instructing us how to blog), this symposium would not have happened. So, thank you, Professor Maldonado. I have enjoyed the symposium immensely and have learned a lot from my co-participants.

Read More

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What’s Law Got to Do with It? Reflections on Martha Ertman’s “Love’s Promises”

Western political thought has viewed love as something that can exist only in the absence of law. Law is for the public sphere. In the private sphere the language of law should not be spoken, because it can only contaminate relationships, injecting terminology of rights and obligations where the language should be that of love, trust and caring. Accordingly, a nineteenth century common law doctrine deemed contracts between spouses as unenforceable. Not surprisingly, it benefitted those who were in control of the family’s assets, the men. Husbands who promised to pay their wives for their work at home could easily avoid enforcement of their promises arguing that a husband and a wife cannot, by definition, enter a legally binding promise with each other.

This doctrine lived well into the twentieth century. Beginning in the 1970s Feminist critique of this doctrine has called attention to its fallacies. Susan Moller Okin argued in “Justice, Gender, and the Family” that the notion of unenforceability of agreements between spouses magnifies the vulnerability of women within the family and servers the interests of men. Contracts and legal commitments not only will not poison marital relationships but will promote and ensure more justice and equality for women.

Similarly, Patricia Williams has powerfully demonstrated how important it is for one’s sense of personhood to be considered legally competent to become a party to an enforceable contract; her now classical 1987 article “Alchemical Notes” discussed the importance of contracts to African Americans, who had been, as slaves, subjects of contracts, but never parties to them. Now “Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families” joins this important lineage of scholarly paradigm-shifting works on the importance of contracts for minorities and disenfranchised individuals and communities, showing the inherent connection between family law, contact law, and the recognition in the full humanity of LGBTs and other individuals who want to create the families of their choice. Read More

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Love and Contracts, and Fairness Too

It is not an easy thing to keep the concepts of love and contracts in the same mental frame, but Martha Ertman in Love’s Promises comes as close as any legal scholar ever has in showing the affinities between the two. Indeed, the case she makes for the positive role that enforceable contracts and unenforceable deals play in structuring and protecting what she calls (in a nonjudgmental way) Plan B families is compelling. (Examples of Plan B families are cohabiting households and those led by adoptive parents or parents who have used reproductive technologies.) I am particularly struck by how persuasive the book is in presenting negotiation processes (between cohabitants; prospective spouses; donors and recipients of gametes; and birth and adoptive parents) as generally salutary and beneficial, quite independently of the specific contracts and deals that might arise from them.

We know from experience that almost all family relationships are constructed around informal negotiations, compromises, and arrangements, the details of which are usually implicit and assumed. At the end of the day, Martha is encouraging all of us, regardless of our familial, sexual, and parental predilections, to make the bargaining and the deal-making more explicit. Martha’s book makes a compelling case for why Plan B families can benefit considerably from embracing agreements of all sorts.

Martha’s love affair with contracts, of course, fits nicely with our pervasive twenty-first century capitalist ethos that prioritizes choice, autonomy, and self-determination. Sometimes it seems as if all (or almost all) of us in this country are libertarians of some stripe or another, with some of us emphasizing autonomy in personal and sexual matters and others of us emphasizing economic freedom. On the other side of both sets of debates stands the intermeddling government (if we are feeling polite) or evil bureaucrats (if we are feeling less polite).

Martha is undoubtedly correct that when the government, for example, regulates the use of reproductive technologies (as several European countries have done), it tends to do so at the expense of Plan B families. Nonetheless, it is important to avoid simple dichotomies that present the private as the “good” and the public as the “bad” or “problematic.” Ultimately, I do not believe we can have a fair and normatively appealing contract-based regime in family law without significant involvement by the state. This is because the relationships that Martha writes about are often characterized by significant power and economic disparities. A regime of “pure contract law” (note the scare quotes) can exacerbate rather than mitigate the effects of those disparities.

As Martha recognizes, for example, there are usually considerable power and economic disparities between birth and adoptive parents. In order for Post-Adoption Contract Agreements (PACAs) to protect the interests of birth parents effectively and fairly, it may be necessary not only for courts to interpret them in ways that are favorable to birth parents, but for the government more generally to inform them of the PACA option, educate them about their advisability, and guide them through their enforcement.

There can also be significant power and economic disparities within married and unmarried relationships. When it comes to the former, we need to make sure, through government policies, educational campaigns, and judicial enforcement mechanisms, that a contract regime of prenuptial agreements does not unduly favor wealthier prospective spouses who might be able, if left entirely to their own devices, to set the terms of one-sided contracts. As for unmarried partners, we need to make sure that the more economically powerful parties in cohabiting relationships are not able to dance around contractual obligations after those relationships end in ways that are unfair to the less powerful partners (usually those who work more inside the home).

To her credit, Martha does not allow her passion for contracts to blind her to economic and social realities as reflected in power imbalances within many family relationships. As a result, while the descriptive parts of the book celebrate stories of love and contracts, the normative parts are infused with calls for thoughtful enforcement mechanisms aimed at promoting not only freedom of choice, also but fairness for homemakers (of all genders, sexual orientations, and economic classes). Although the contract aspects of Love’s Promises may get most of the attention (as reflected, for example, in Judge Richard Posner’s blurb on the book’s back cover celebrating “free choice” and “private contractual arrangements”), they are only one part of the story that Martha tells.

It would be a mistake, then, to view Love’s Promises as a simple clarion call for the private ordering of family law. Yes, Martha has great faith in the power of agreements to clarify, structure, and protect families of all kinds. But to accomplish those objectives in fair and just ways, she makes clear that we need laws and policies that are highly attuned to disparities in power imbalances and social biases that harm those who, for reasons of choice, gender, or relative powerlessness, are more involved in homemaking than in moneymaking. To me that is as an important takeaway from Love’s Promises as is its fusion of love and families on the one hand and contracts and deals on the other. The contracts may be the sexy part, but the guaranteeing fairness is the hard one.

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Understanding the Relationship Between Plan A and Plan B

I’m honored to be part of the symposium celebrating Martha Ertman’s important new book, Love’s Promises. Ertman writes in an accessible, engaging style and weaves in her own deeply moving—and encouraging—family story. Even as Ertman provides a text for a general audience, she makes a substantial intervention in ongoing debates among family law scholars. By showing how contracts and deals shape family life, Ertman debunks the conventional wisdom that intimacy and childrearing are incompatible with the cold language of bargain and exchange. And, as importantly, she shows how contract actually facilitates a freedom in family formation that we should celebrate. As Ertman argues, “society and people individually are better off when we can choose when, how, and with whom to have a family.” (p. xiv)

Ertman focuses on what she calls Plan B families. She means Plan B to convey “exceptions to the general rule instead of unnatural or inferior.” (p. xiv) Plan A “is what’s common: more than nine out of ten kids are raised by their genetic parents, marriage is the most common family form, and most people are straight.” (Id.) Plan B, on the other hand, “covers a wide variety of uncommon families, from repro tech and adoption to cohabitation.” (Id.) As Ertman explains, “‘common’ is not the same as better.” (Id.) The Plan A/Plan B dichotomy translates into legal frameworks. The law, Ertman explains, devises “a general rule for the most common state of affairs”—Plan A—but “[w]hen something unusual happens, like repro tech, adoption, or cohabitation”—Plan B—“the law carves out exceptions to fit that situation.” (p. xv)

In this post, I rely on Ertman’s Plan A/Plan B distinction to say more about the relationship between the two, conceptually and legally. The Plan A/Plan B distinction is unstable, and that is partly what makes it so illuminating. As Ertman’s examples throughout the book demonstrate, families can be Plan A along some dimensions and Plan B along others—a married same-sex couple, or a different-sex couple using reproductive technology. And so Plan A rules may fit the mold in some ways and yet fail to fit in others. Because of this blurriness, the legal regulation of families may use different justifications to apply the same rule in different circumstances; a Plan A rule may be interpreted to apply to a Plan B family. And as rules are devised and principles articulated for Plan B families, Plan B concepts and rationales may seep into Plan A rules and reasons. My main point is that as the law grapples with and recognizes Plan B families, the logic it employs—in Ertman’s terms, a contractual one—reverberates across family law’s regulation of all families.

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