Category: Feminism and Gender

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The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.

 

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4 Wishes for Father’s Day

My post on Thursday expressed concerns about the cultural assumption that taking care of young children is a woman’s role. Today, I present a four-part wish list of public policy interventions. With Father’s Day coming up, these proposals seek to recognize dads as able caregivers.

Image from iStock.com/OlgaLebedeva

Image from iStock.com/OlgaLebedeva

1. Mandate dad-inclusive paid parental leave

The United States is notorious for being the only high-income country that doesn’t require employers to provide paid parental leave. Among employers that do offer some form of paid leave to new parents, many provide leave to new mothers (often framed as disability leave) but not to fathers. A report from 2014 estimated that 58 percent of employers offered paid leave to new mothers, but only 14 percent offered it to new fathers. Another study from 2012 reported that only 13 percent of fathers who took parental leave were paid, compared with 21 percent of mothers.

The first item on my wish list is a law requiring paid parental leave and, importantly, the law should grant leave rights to both moms and dads. A handful of states already have such legislation, but we need the whole country covered. Proposals for paid parental leave have already garnered a lot of attention, and that’s great. I think it’s important, however, not to focus too narrowly on this issue. For reasons that I discuss in a forthcoming essay, we also need to address other aspects of our social environment that affect dads as caregivers, including the following wish list items.

2. Require equal access to diaper changing facilities

Cities like Honolulu, Miami, and San Francisco have laws that give men and women a right of equal access to diaper changing facilities. I wish this right existed across the country. In 2014, California’s legislature passed two laws that would have required new and newly renovated buildings to grant men equal access to diaper changing tables by placing changing tables in men’s restrooms or family restrooms. It’s a shame that Governor Brown vetoed the measures. All too often, diaper changing tables are located exclusively in women’s restrooms. This is troubling because of the difficulty it creates for dads who need to change diapers. Moreover, lack of equal access sends the troubling message that only women should be expected to care for young children.

Restrooms have long been sites of regulation because they are so central to health and well-being. OSHA rules, the Americans with Disabilities Act, and state-level Restroom Access Acts all aim to make restrooms accessible. There is also pending litigation about the extent to which federal civil rights laws protect transgender individuals’ ability to use restrooms that correspond with their gender identity. Further regulating restrooms to ensure that men have equal access to diaper changing tables is long overdue.

3. Reframe state-supported “Mommy & Me” classes

When my daughter was a few months old, I began exploring community events for infants and parents. Friends told me how fun it would be to take her to “Mommy and Me” classes. “They’re called Mommy and Me classes, but I’m sure they’d let a dad in too,” one friend tried to reassure me. Mommy and Me classes abound—for example “Mommy and Me Yoga,” “Mommy and Me Music,” and “Mommy and Me Tender Twos.” While these classes may technically be open to fathers, the Mommy and Me moniker sends the message that fathers do not belong. This framing reinforces cultural expectations that caregiving should be left to mothers.

To be clear, these classes are not biological in nature. They are not breastfeeding classes. For example, Huntington Hospital in Pasadena offers a “Mommy and Me” class that it describes as “song time, parachute play, and bubbles with baby.”  All of these activities could surely involve fathers. Some places have begun to offer Daddy and Me classes, but these options are rare and I see no reason why moms and dads need to be segregated for song time and bubble play. Moreover, I’ve found that Daddy and Me Classes take place outside of the usual work schedule—on weeknights and weekends—thus reinforcing the outdated assumption that dads are breadwinners and moms are caregivers.

While we should lobby companies to rename their Mommy and Me classes, public policy also has a role to play. Many, if not most, Mommy and Me classes are offered by government-funded entities such as hospitals and public libraries. As a public policy intervention, the government should condition its funding on the reframing of Mommy and Me classes. Some places have already begun to call their classes “Baby and Me” instead, a name that is much more inclusive of dads and other caregivers. The government should require this change of any state-funded entity that offers a Mommy and Me class.

4. Recast the image of dads in the federal government’s Fatherhood & Mentoring Initiative

The federal government runs a public education campaign that encourages fathers to be more engaged with parenting. While this is certainly a laudable goal, the program has set a very low bar, focusing on preventing fathers from being completely absent. As a result, the campaign’s media clips risk reinforcing the belief that dads ought to leave the bulk of hands-on caregiving to women. For my fourth wish list item, I wish the government would revamp its media campaign.

Consider, for example, the first video clip at the bottom of this post. It features three television personalities from the MLB (Major League Baseball) Network.  The men are in their offices, taking a moment out of the day to call their children by phone or videoconference to say hello.  The clip closes with one of the men telling viewers: “Remember: You’re never too far away from your kids to be a dad. Reach out and take a second to check in—because sometimes, the smallest moments can have the biggest impact on a child’s life.”

This clip might have the unfortunate effect of reproducing the idea that a model father is, first and foremost, a breadwinner. And being an engaged father simply means picking up the phone to call the kids from work. I wish the federal government would replace videos like this from its campaign with clips that showcase multiple sides of fatherhood, including images of fathers as hands-on caregivers.

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Reflections for Father’s Day

Thank you to everyone at Concurring Opinions for inviting me to guest blog, and thank you to Solangel for her kind introduction. I’m usually a pretty private person, but I’d like to open up a bit in my first blog post by sharing some personal experiences.

iStock.com/OlgaLebedeva

Image from iStock.com/OlgaLebedeva

Two years ago, my life changed forever because I became a dad to the most amazing baby girl, and I had the privilege of taking a year off from teaching to stay at home. I know having children and taking time off from work is not the right choice for everyone. But for me, I can’t think of anything more right. I wouldn’t trade the experience for anything. Taking care of my daughter gives me incomparable joy and a sense of purpose that words cannot fully describe. Since returning to my usual law professor schedule, I relish seeing my little girl after leaving campus each day. She truly is my sunshine.

Against this backdrop of happiness, a sad reality is that my experiences as a father have heightened my awareness of troubling gender norms. I’ve long been cognizant of the cultural assumption that caregiving for young children is a woman’s role. Still, with firsthand experiences as a father, I’ve been struck by how strong this norm is.

With Father’s Day around the corner, I think back to my first Father’s Day dinner as a dad. The restaurant’s kind owner congratulated my husband and me on fatherhood. He gushed over our family. His celebration of us as same-sex parents was a delightful sign of how far we’ve come. Yet, in his next breath, he apologized that the men’s room had no diaper changing table and offered to let us use the women’s room instead, because there was a changing table there. I was disheartened by the reminder that only women are expected to change diapers. Women are saddled with the responsibility, and men who do want to change diapers face barriers. Instances like this may be small and inconsequential on their own, but the pervasiveness of these small occurrences reinforces expectations that men should leave caregiving to women.

To be sure, times are changing. More and more men are embracing childcare responsibilities traditionally associated with women—things like swaddling and singing to a fussy infant to coax her into slumber, preparing meals, cleaning kitchen messes, doing a child’s laundry, and managing older children’s after-school schedules, which might include craft or baking projects, running errands together, accompanying children to sports or dance classes, or helping with homework. The number of stay-at-home dads has grown rapidly. A 2012 study found that fathers comprised 16 percent of all stay-at-home parents. Meanwhile, fathers employed full-time outside the home tend to devote more time to childcare after work compared with fathers from previous generations. Another study found that the number of single father households had increased from less than 300,000 in 1960 to over 2.6 million in 2011. Census data from 2010 also showed that 10 percent of male same-sex couple households were raising children.

Despite these changes, mothers still shoulder a much larger share of childcare responsibilities than fathers, and our cultural environment reinforces this pattern. We are surrounded by a culture that treats childcare as the domain of women. Consider when a man prepares to become a father. He’s all too likely to learn that his employer offers no paternity leave even if it grants leave to new mothers. If the father decides to stay home anyway, he’ll probably search for activities to enjoy with his child, and will encounter numerous classes titled “Mommy and Me” as though fathers do not belong. As he shops for baby supplies, he’ll surely discover countless advertisements that deploy “mothers know best” rhetoric that questions the competency of fathers. These are just a few examples of everyday moments that coalesce, sending the message that men are not suited for—or are not expected to perform—caregiving.

These cultural dynamics are bad for men, bad for women, and bad for children. Fathers who are primary caregivers too often report feelings of isolation and stigma, feelings of being hyper-scrutinized for their parenting skills, and practical difficulties such as the lack of access to changing tables. Cultural expectations about caregiving are also bad for women because they place disproportionately heavy pressure on mothers. This is especially harmful to women who wish their male partners would contribute more to childcare, so that they could focus more energy on their careers. The current cultural environment is also bad for children. In some families, it might make sense for the mother to do most of the caregiving. But for many if not most other families—especially families with single dads or gay dads—it’s in children’s best interest for fathers to be engaged caregivers.

What can we do to address this conflation of caregiving with motherhood? Lobbying the private sector is one strategy. For example, I signed an online petition asking Amazon to rename its “Amazon Mom” service to be more inclusive of fathers. The service, which specializes in delivering products to caregivers of young children, has always technically been open to fathers, but the name “Amazon Mom” implied that caregiving is and should be the domain of mothers. I’m happy to report that Amazon has since renamed its service “Amazon Family.” Small victories like this can add up.

In my view, the government can—and should—also play a role in fostering a cultural environment that does not equate caregiving with women. In my next blog post, I’ll offer my wish list of public policy interventions aimed at supporting dads as caregivers.

[Update 6/27: click here and here for the next two posts in this series.]

This blog post is adapted from my forthcoming law review essay entitled “Shaping Expectations about Dads as Caregivers: Toward an Ecological Approach.”

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Developmental Equality

We live in a time where we can accurately predict the risks and opportunities for many children.  As surely as if we marked them at birth (or even before), we can identify who will likely succeed and who will likely fail by adulthood.  Race and gender, alone and in combination, generate clear odds.  Disparate risk generates a hierarchy of children, and we know who will be at the bottom.  Children’s inequalities are linked to developmental supports for some children, coupled with not only the lack of support for others, but also the presence of barriers and challenges, designed for children to fail, not to succeed.

Children’s inequalities, by race and gender, are particularly evident in the life course of Black boys.  Their patterns from birth to 18 are an example of similar patterns for other children at the bottom.  I do not mean to suggest here a hierarchy of inequalities, but rather to use their life course to adulthood as an example of the marked outcomes for certain children.  At birth, a Black baby boy has more than a one in three risk of being born into poverty.  He has a one in two risk of never graduating from high school.  And he has a one in three risk of being incarcerated in his lifetime, in the juvenile justice system or the adult criminal justice system.  His risk of incarceration doubles if he is born at the lower end of the socio-economic scale.  While he may transcend these risks, the trajectory funnels him toward failure and subordination, to the low end of what is a hierarchy of opportunity for kids.

These disparate negative risks to development are linked to systems that fail him:  systems that do little to support, and much to undermine, his growth to his full potential.  These are systems constructed and perpetuated by the state, at federal, state, and local levels, by the choice of policies despite the evidence of disparate, unequal outcomes along known, identifiable identity lines. Those systems include the poverty system (the clutch of policies that perpetuate poverty, and income inequality by race, rather than provide pathways out of poverty); the education system (highly segregated by race, disparate in resources and outcomes school-to-school, and especially negative in outcomes for Black boys), and the juvenile justice system (a largely boys’ system designed to punish and disadvantage for life rather than rehabilitate; and a sharply disparate system in every negative way for boys of color, particularly Black boys).  In combination, these systems and others directly impact the lives of Black boys, their families, and their communities in negative ways that replicate inequality.  The pattern is not merely one of insufficiency or inadequacy, but of barriers and harms.

The inequalities of Black boys are not unique.  There are other children who are predictably at the bottom, that we expect to be there.  And unequal hierarchies are not unique to American children.  In many countries, data reveal which children are marked for failure.  So, for example, in all countries in Europe in which they are present, Roma children are disproportionately poor, minimally educated, and jobless; the most unequal are Roma girls.  Muslim children similarly are targeted in many European countries, as are migrant and refugee children.

How can we address these inequalities, and those of other identifiable groups of children who reach adulthood lacking in opportunity due to failed outcomes and barriers placed in their way?   I propose that we have to think about these blatant inequalities differently, in order to craft meaningful change, by embracing a model I call “Developmental Equality.”

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West Point, Swimming, and Developmental Equality

Two separate stories in the news speak volumes about our expectations, assumptions, and knowledge about the lives of children of color.  We know they develop under an expectation of failure rather than success.  Rather than an equal opportunity to succeed, we know, implicitly, that they are funneled to failure.  Thus, when we find children of color unexpectedly successful, we are startled by their transcendence.

We should examine our expectations, our acceptance of the structural discrimination that we passively support or ignore that perpetuates inequality.  Once we do, we have to confront the harshly unequal developmental path for children of color.

The first story is about a photograph of a group of 16 African American women in their dress uniforms as graduating seniors at West Point. West Point still has only a minority of women (the 2014 entering class was 78% male), and remains mostly white (70%).  The women in the photo represented all but one of the Black women graduating, a mere 1.7% of the graduating class.  The women are posed outside the oldest barracks,  a favorite setting for graduation pictures replicating similar groups of graduates for over a 100 years.  Each of the women stands with her arm bent upward ending in a raised fist; some have their arms simply at their side, while a few extend theirs over their heads.

So what did the women in this photograph mean by their pose?

A statement of black female empowerment?  A statement of personal fortitude and accomplishment, and group solidarity?  A statement of protest?  A statement of difference, separating them from other graduates?  A statement of political content, perhaps with #Black Lives Matter or #Say Her Name, movements that have raised consciousness about the inequalities in black lives?

Read as protest, it would violate the norms of universality, of color and gender blindness, and of conduct becoming an officer.  The picture generated enormous controversy for several days.  Each person viewed it from their context, including their view of women, of women of color, and of these women’s place in this setting and institution historically male and white.  Also part of the context was making meaning of their common gesture of a raised clenched fist.   Triggering calls for disciplinary action against the seniors, the controversy finally ended when it was determined that the students had done nothing that required disciplinary action.

For me, in addition to the debate about meaning was the universal unspoken assumption that black women in this place were out of place; not because they did not deserve to be there or to pose like countless other graduates of West Point, but rather, they had transcended the expectation that their place was elsewhere.  Read More

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Big Mike: Non marital families

Amidst a recent move, I had one of those conversations that happen for those of us who teach family law.  My mover, Big Mike, about halfway through the day, discovered I taught family law.  I saw the spark in his eyes. “Well then I really need to talk to you!” he said.  Sometimes this means someone has had a terrible experience with a lawyer, or with a judge.  After all, family law is one of the most common intersections that people have with lawyers.  Just as often, they have a situation they want to discuss.

That was the case with Big Mike, who several trips later up and down the stairs, started to tell me his story, in the hopes that I might have some advice for him. What was fascinating about Big Mike’s story was what it revealed that is remarkably commonplace:  the legal uncertainties and lack of support of non-marital families.

Big Mike has a son who is 11 years old.  When his son was 11 months old, Big Mike came home to a cleaned out apartment, the baby’s mother gone along with his son and her 7 year old daughter.  They had long since ended their relationship, but Mike thought they would work out how to raise their son together.  Instead, she had decided to move to live with a friend in another state.  Big Mike found them and made it clear that he wanted to remain in the life of his son.  She responded by giving him the baby, and since then he has raised his son.  His son’s mother made no further contact nor did she visit.  She remained out of state with her daughter, and subsequently got into a relationship with a man who molested her daughter. She moved a number of times, and continued to make bad life choices.   Meanwhile, Mike maintained contact with his son’s grandmother, who his son visits periodically. Recently the birthmom made contact with him, and her text made him concerned that she might want to try to establish a relationship with her son, or even might seek custody or visitation.  The message indicated her regret for not being a good parent, but that she would like to make amends somehow.  It also hinted at the possibility that she might move back to Florida. Read More

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Fathers, Work, Family and Masculinities

Men’s care work and wage work both are powerfully impacted by the dynamic of masculinities. Masculinities are the male equivalent of female gender norms; they are plural because there are multiple variations, but with a dominant or hegemonic set of standards that set out the hierarchy among men and which men are at the top of the heap.  Just as gender norms powerfully impact women’s lives, the same is true of men’s lives.  Masculinities constrain their engagement and performance of fatherhood, as well as the way in which they work, including limiting themselves and the women they work with. Structural constraints (the assumption work is primary, so the amount, timing and expectations of workers assume no family responsibilities) impact the gender divide in both work and family realms, but the cultural constraints are also powerful.  Even while challenged and in flux due to movement and change in gender dynamics, hegemonic masculinity, the dominant masculinity norm, continues to create hierarchies between men and women, and among men.  Movement in the gender dynamic belies the strength of its underlying foundation.  It is necessary to continue to ask both the woman question and the man question, and in those inquiries, to dig deeper and intersectionally.  So whatever we think we have identified about women and men, we need to ask, “And is this true for all women, all men?”

A series of recent articles about men and women, fathers and mothers, expose the dynamic and range of ways in which the constraints of masculinities remain a significant barrier to equality.

First, a recent opinion piece in the NY Times explores the way that fathers care for their children, noticing a shift in their engagement in the tasks of caregiving but also in the messages and roles they convey about gender to their children.  This is significant movement from the breadwinner definition of fatherhood as singularly an economic role.  But while the shift is important, it is critical to recognize how much distance is yet to be travelled.  The disparity between men and women in family work (caregiving and household work) remains, and it is significant.

A second story, “How Society Pays When Women’s Work is Unpaid,” highlights this family work differential by the concept of the “time gap,” an additional factor to be noticed in addition to the wage gap.  No less a high-profile figure than Melinda Gates laments the significance of this issue for women, but the example she provides of a solution, that of husband Bill taking the kids to school several times a week, is limited.  The message is that no less a man than Bill Gates can be asked to “help.”  But imagine if Bill had written about this instead of Melinda.  Imagine if Bill owned a robust version of taking responsibility for the full range of family work (and planning, and long term thinking) that would constitute real equality.

What gets in the way of both men’s care and doing their share of other household work is masculinities’ defining of men’s and women’s gender roles. Michael Kimmel, one of the leading researchers of masculinities, provides a rich example of this in a profile of a class he teaches in his masculinities program.  Kimmel asks young college men and women the attributes of the Good Man.  Somewhat tentatively, not sure what he is after, they respond “honest”, “caring.”  Then he asks them, what are the attributes of the Real Man.  The answers come thick and fast: “take charge, authoritative,” “take risks,” “never cry,” “walk like a man, talk like a man.” And there it is—the norm that does not embrace care, equality, or women’s equal value.  Rather, it is a norm that would reject engaging in care, or sharing household work, because it is “women’s work.”  The core command of masculinities remains:  “Don’t be a girl.”

And the rejection of things female means the devaluation of women and the defending of what is considered male from female incursion. That clearly has an impact on women’s opportunities and ability to be accepted and valued as equals.  But it also has an impact on men.  It means they are defined and limited in a way that pushes them to be complicit (dominant and gender differentiated), in order to be accepted as a Real Man.

These two threads are clear in two other recent stories. First, a recent comprehensive study demonstrates that when women enter a job category in significant numbers, the compensation for the field declines.

In other words, when enough women are doing the work, it becomes “women’s work,” and therefore it has less value. This is in addition to differential payment of women for the same work (doctors and lawyers making less for the same job based on gender), and differential payment for very similar work by identifying it in a gendered way (housecleaning versus janitorial work). Not only do are women harmed by this, but it also encourages men to defend against women changing the value of the job, keeping it “men’s work,” and deters men from taking work categorized as “women’s work.” Gender segregation and hierarchy is sustained.

The second thread is the defense of male work, defending male turf. One of the most vehement examples of this recently was exposed by two female sportswriters, who published the almost-daily vile, threatening, and nasty feedback they get.  The harassment is not about their work, but who they are; not about their personality or point of view, but about their gender.  In an attempt to combat this, instead of the strategy of ignoring it, sloughing it off as “boys will be boys,” the two sportswriters created a YouTube video, with one of their male colleagues reading the comments to them.  Removing the distancing and anonymity of social media and instead presenting this as if said face to face brings home the misogyny and gender hatred.

The patterns of devaluing, objectification, and harassment demand stronger legal remedies. These patterns should be considered not just as expressions of dominant masculinities aimed at women, but also that they are aimed at men, to punish non-conforming men and to keep all other men in line.

The construction of gender norms, and the limitations imposed on men, returns full circle to affect men’s care. As long as women are not men’s equals at work, that dynamic pushes asymmetric patterns of family work.  As long as men must conform to a masculinities norm at work that devalues care, it will affect their engagement in care.  This has such a powerful impact on family law, and the ability to construct caregiving as men’s work that is part of being a Real Man.  Imagine if the students asked about the meaning of being a Real Man responded by saying “an involved and engaged father” as their FIRST answer.

And then we have to ask the next question: and is this the same for all men?  The news articles did not differentiate by race, class, or sexual orientation, but all of those intersectional identities have an impact on both care and wage work.  Low income African American fathers, for example, are more likely to be in a non-marital household, and are discouraged by the purely economic demands made on them, often impossible to satisfy, of the child support system, while having little support for their caregiving role.  At the same time, a recent study found that Black fathers as a group are more engaged with caregiving than many fathers, contrary to the stereotype of disengagement.  Men of color are at the bottom of the masculinities hierarchy but also engage in resistance to the hegemonic norm.  Their unmet needs as well as their successful resistance suggest issues to resolve and possible strategies that might work for all men. Gay men face unique challenges in creating families and having their family ties recognized, as well as facing harassment and underemployment at work.  A binary gender paradigm that presumes a heterosexual norm disserves them.  Grappling with the questions of work and family equalities therefore requires intersectional analysis.

A range of remedies might be used to grapple with these issues. The bottom line is that we remind ourselves to “ask the other question(s).”

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FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of 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.

1

Our Precious Perversions

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

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

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

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

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

http://www.mollena.com

http://www.mollena.com

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

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

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