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.

1

Promising Loves, Loving Promises

Martha Ertman has always been an original — in the way she crafts her legal scholarship and the way she lives her life. Love’s Promises brings the two together in compelling fashion. It starts with Martha’s visit to a fertility clinic in (of all places) Salt Lake City, where she and Victor arrange for artificial insemination and plan for the child they will have together — as a gay man and a lesbian. Over the course of the book, they enter into new relationships and Martha eventually marries Karen all while she and Victor reaffirm their commitment to the child. Their story is a fascinating read in itself — how will they do it, what happens when each enters into new partnerships, how will they reconcile their family with Martha’s Unitarian traditions, Victor’s Southern Christian roots, and Karen’s Jewish heritage, and how do they manage to raise a child together with a father who lives in Texas, two mothers in Washington, D.C., teaching stints in Seattle and summers in Provincetown? It can’t possibly work, can it? And even if a talented trio such as Martha, Victor and Karen pull it off, what does it have to do with the law?

The book’s answer is that it says a lot about the law — about the use of both formal contracts and what Martha calls unenforceable “deals” to structure family life. It also explores the law’s limits, but in ways that still makes contracts — and other individually negotiated arrangements — central to emerging definitions of family life.
The book’s publication, the month before the much-anticipated Supreme Court opinion, shows how far we have come in creating and recognizing many different kinds of families. And Love’s Promises gives important validation not just to different kinds of families, but to different kinds of arrangements within families that reflect how adults choose to live their lives. The how-to manual aspects of the book really provide a useful template that should foster more reflection as people enter and seek to preserve intimate relationships. Encouraging people to sign off on their mutual understandings at the get-go (Martha uses lots of idioms in the book, part of what give the book its wonderfully approachable flavor) should help them down the road when those mutual understandings falter. Read More

2

In Praise of Love’s Promises

I just returned from an AALS Workshop on “Shifting Foundations in Family Law,” where Martha Ertman read from and presented the ideas in Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families.  The reception was enthusiastic and admiring — exactly my reaction to her wonderful new book.  Martha seamlessly blends memoir, case stories and legal analysis to create a compelling and provocative narrative that beautifully illustrates her central point — that love and contracts are not opposites, but  complementary, and that exchanges — both big and small, formal and informal —  create and sustain families, both the conventional type that she calls Plan A and the less common (but equally valuable) varities that she dubs Plan B.

One of the book’s most impressive features is its combination of personal memoir and legal analysis.  Often seen as incompatible, particularly in the academic world, these two genres reinforce and enrich each other in Martha’s book.  While Martha has described the snippets of memoir at the beginning of each chapter as the “sweet coating that makes the legal medicine easier to swallow,” the juxtaposition does much more than that.  Although Martha may not have intended this, her decision to combine memoir with serious legal analysis is another example of how things sometimes thought of as incompatible not only co-exist, but enhance each other’s power.  Small wonder that, after reading the first 30 pages of the book,  my husband exclaimed that “This ought to be a movie!”

Martha’s legal analysis covers an immense amount of ground — touching on almost every area of family law.  Given that breadth, and the fact that she is writing for both a lay and a legal audience, she does an impressive job of describing and explaining the law.  Still, there are a few things that I wish the book had done more thoroughly or more convincingly.  One is to delineate more clearly which type of family agreements she thinks the law should enforce as “contracts” and which types she thinks should remain mere “deals” — important  to the parties who enter into them, but not giving rise to legally enforceable rights or remedies.  For family law scholars, who largely already agree with Martha’s basic insight about the compatibility of love and contracts, this is the $64,000 question and Martha does not provide much help in answering it.  For example, in some contexts (such as post-adoption contact agreements (PACA’s), she seems to suggest that the degree of formality should matter, while in others,  (such as cohabitation contracts), she bemoans the law’s insistence on a writing as a prerequisite to enforceability.  To be fair, family law academics probably are not Martha’s target audience, and she is justifiably more concerned with convincing a skeptical public that love and contracts are not opposites and that exchange plays an important role in creating and sustaining families.  But for those who agree with her basic insight, Martha provides few markers to answer what she describes as the “big whoop” in contract law — drawing a line between the kinds of (family) promises that courts enforce and the ones they won’t. Read More

1

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

0

UCLA Law Review Vol. 62, Issue 5

Volume 62, Issue 5 (June 2015)
Articles

Wills Law on the Ground David Horton 1094
Prison Abolition and Grounded Justice Allegra M. McLeod 1156
Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850–1940 Clyde Spillenger 1240
Faith-Based Intellectual Property Mark A. Lemley 1328

 

Comments

A Critique of the Secular Exceptions Approach to Religious Exemptions Colin A. Devine 1348
Restoring the Fifteenth Amendment: The Constitutional Right to an Undiluted Vote Stephanie N. Kang 1392
1

Mushy Language and the Limits of Intimate Agreements: Reflections on Love’s Promises

It is an honor to be invited to comment on Professor Martha Ertman’s thought-provoking and excellent book. I have taught family law for 15 years and devote a lot of class time to assisted reproduction, adoption, palimony, and prenuptial agreements—in other words, contracts. However, until I read Love’s Promises, I, like many others, did not fully appreciate the ubiquity of contracts in families and family law. After all, we rarely refer to agreements between intimate partners as “contracts”—apparently preferring the softer “agreement” as in co-parenting agreement, cohabitation agreement, or prenuptial agreement—precisely because we don’t think (or want to think) about contracts and love in the same sentence. Professor Ertman deftly demonstrates that we all rely on contracts and non-legally binding agreements (which she calls “deals”) in our intimate relationships to our benefit. I found it impossible to read Love’s Promises without examining my own family relationships and noticing how many contracts and deals we have created. But in the end Love’s Promises is a love story between co-parents, between a parent and a child, and between intimate partners—a love story made possible by carefully thought-out contracts. Read More

1

Good Thing This is a Slow Week

I will be leaving for a family vacation tomorrow, and thus I doubt that I will have any instant reaction to the cases that are handed down tomorrow and Friday.  I’m not clear whether Friday will be the last day in any event.

1

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.