Tagged: gender

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Stanley v. Illinois: Terminating A Rapist’s Paternal “Rights” in Maryland

In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference.  In this last post, I address one aspect of the negative legacy of Stanley:  the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception.

Let me give you a modern example to chew on.  This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago.  During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care.  A number of states have limited those rights where the conception occurred as the result of a rape, but not all.  Even where the rights have been limited, however, the negative legacy of Stanley lingers.  I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt.

Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother.  Under the proposed legislation, the paternal rights of some of these men could be terminated.  If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child.

Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature.  The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House.  The House bill went further in terms of allowing the termination of paternal rights.  It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children.  I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist.

Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother.  In the absence of a conviction, the man’s paternal rights can be terminated if the woman proves by clear and convincing evidence that nonconsensual sexual occurred.  Even though Maryland has no marital rape exemption, the House bill also provides that a husband’s paternal rights can be terminated only if he has been convicted of nonconsensual sexual conduct.

In addition to proof of nonconsensual sexual conduct, termination of paternal rights requires a finding, based on clear and convincing evidence, that termination is in the best interest of the child.

A finding of termination eliminates the man’s right to custody, guardianship, access to and visitation with the child.  It also terminates the man’s child support obligation.  If the man is indigent, he is entitled to have counsel provided for him.

In terms of Stanley, many things are interesting about the proposed bill in addition to the fact that it followed eight previous failed attempts.

First, the bill assumes that all biological fathers are the same, just as the Stanley court assumed, and that all of them have the same rights as mothers to be recognized as parents.  In fact, after Stanley, the Court came to a more nuanced place about the rights of biological fathers to be recognized as legal fathers.  Biology, according to the Court in Lehr v. Robertson , offers a man an opportunity to develop a relationship with a child that is shared by no other man, but biology is not enough.  If a man does not seize the opportunity, the Constitution does not require a state to recognize the man’s claim to legal fatherhood.  A rapist who had no further contact with mother and child (or failed to file postcard with a state registry, as provided by New York law at the time of Lehr), therefore, could be constitutionally denied all rights to parenthood.

Second, the bill prohibits termination unless the court finds by clear and convincing evidence that termination is in the best interest of the child.  If the bill also denied paternal rights to men who fail the Lehr test, this provision would apply only to men who had some relationship with the child or who, at the very least, had admitted paternity prior to an action for termination.  But the bill doesn’t do that.  Instead, it follows the Stanley path and treats all men alike.  As a result, the bill allows for a scenario where a man who has never seen or done anything for the child may get to keep his paternal rights because the mother does not have the resources to mount a convincing case against him about the child’s best interest.

But it gets worse.  Because the bill follows Stanley’s lead of treating all men alike, regardless of prior involvement with the child, it puts impoverished women in a particularly bad position.  Take, for example, the case of a mother who needs public benefits such as cash assistance or Medicaid in order to support her child.  Recipients of these and some other public benefits are required to assign their rights to child support to the state and to cooperate in the establishment of paternity and the order of support.  If the mother persuades the state that the child is the result of a rape, she may get a waiver, but waivers are hard to come by.

Once the paternity and child support suit is brought by the state under the assignment, the father can counterclaim for custody and visitation.  No lawyer represents the mother in such a case; the lawyer who brings the original suit represents the state under the assignment, not the mother.  If the mother tries to defend against the custody and visitation claim on the basis that the child is the result of a rape, the father, if indigent, would be entitled to a lawyer paid for by the state under the House bill.  No lawyer would be provided for the mother.

Third, the bill relieves the man whose rights are terminated of the duty to pay child support.  The bill says, in effect, that child support is a quid pro quo for rights with respect to the child.  That is contrary to the usual understanding that child support is an obligation owed by people who participate in the creation of a child.  In theory, at least, child support is about the child’s well-being, not the father’s sense of entitlement or grievance.

Stanley provides something of an explanation for the anomaly.  Remember that the Stanley court requires the state to respect paternal rights to the same extent that it respects maternal rights.  In the 1970s, when feminist claims were only beginning to be heard, maternal roles and paternal roles were openly recognized as distinct.  Fathers were responsible for financial support of their children, and mothers were responsible for physical and emotional support.  Many states, including Maryland, did not place an equivalent duty of child support on mothers and fathers until five years after Stanley in a decision based in the state’s equal rights amendment.

Fathers “earned” their right to a place in a family by satisfying the financial duty.  If a father satisfied his duty, he “should” be empowered to do what fathers do in families.  The tradition makes sense of a decision to relieve a man who is deprived of the usual power to make decisions about his child from the usual duty of the father to provide financial support.  It makes no sense, however, once one rejects the traditional approach of differentiated male and female family roles or if one puts the needs of the child over a parent’s sense of entitlement.  Including this provision today, 45 years after Stanley and long after gendered roles in the provision of financial support have been rejected as a form of sex discrimination, is indefensible.

The House bill differs from Stanley in one key respect.  It provides greater protection for the married father to keep his paternal rights than it provides for the unmarried father.  The married father’s rights can be terminated only if he is convicted of nonconsensual sexual conduct; the unmarried father’s rights can be terminated upon conviction or upon clear and convincing evidence that he committed nonconsensual sexual conduct.  Of course, if Peter Stanley had been married to Joan Stanley, the state could have terminated his parental rights only upon a showing of neglect or abuse, so the case would never have gone to the Supreme Court.  The Court’s decision placed the unmarried father, Peter Stanley, in the same position he would have enjoyed had he been married to Joan Stanley.

Why is marriage a privileged status in the House bill, even though Stanley points to the opposite path?  Perhaps the answer is that the legislators want to encourage marriage.  If that’s the case, the consequence is likely to be to also privilege European-American fathers, because marriage rates, while lower now than in the 1970s, still tend to be higher among European-Americans than among African-Americans.  An equally likely motivation is a lingering allegiance among legislators to the traditional claim that a husband can’t rape his wife, no matter what the criminal law now says.

The bill is, at best, a crabbed approach to the interests of a woman who was raped, gave birth to the child and wants to raise the child.  Nonetheless, many of the bill’s features are predictable, given what the Court did in Stanley 45 years ago.  If all men and women are the same, regardless of their engagement in caring for a child, then a child should rarely be deprived of an opportunity to have a “father,” even if the “father” raped the child’s mother.  And if mothers need to be under the control of a man, a rapist might be as good as any other man.

What would a better bill look like?  A better bill would respect and valorize all parents who commit to caring for a child and avoid empowering people who assert rights without entering into relationships.  A better bill would focus on and seek better outcomes for parents who lack privilege.  A better bill would not tread on the autonomy of a committed parent because the parent is female.

I think a better bill would differ from the failed House bill in at least six ways.  Here’s my list:

  1. Paternal rights are recognized only where the biological, adoptive or marital father demonstrates a history of care for and connection with the child or otherwise satisfies the Lehr Mere biological or marital connection is not enough.  Therefore, no termination is required where the man who committed the nonconsensual sexual conduct has not satisfied Lehr, because no paternal relationship is recognized in the first place.
  2. Where a man demonstrates his entitlement to recognition as a father because he has satisfied Lehr, termination is allowed where the mother demonstrates that the child is the result of nonconsensual sexual conduct, either through evidence of the man’s conviction or through clear and convincing evidence of the conduct. No discretion is allowed for a court to deny termination, because the mother should not be forced to have a continuing relationship with a man who committed a violent act against her as extreme as first or second degree rape or incest.  If the mother decides to allow the man to have a relationship with the child, the mother’s decision provides no basis for a court to order the mother to continue the relationship.
  3. The termination proceeding follows the same procedures as are used in other termination of parental rights cases.
  4. The termination of parental rights which is ordered because of rape does not relieve the biological father of the duty to provide child support.
  5. Married and non-married fathers are accorded the same protections from termination.
  6. The duty to assign child support and to cooperate in the establishment of paternity and support is eliminated from public benefits law unless the state proves in a judicial proceeding that a mother’s claim of rape is not sustainable. The mother is entitled to have counsel provided in such a proceeding.

A bill that incorporates at least these six features, it seems to me, starts to address the negative legacy of Stanley.  Such a bill would provide sufficient procedural protections to men who are wrongfully accused of nonconsensual sexual conduct so long as they have also demonstrated a commitment to caring for a child.  At the same time, if conception occurred without the mother’s consent, the man’s claim of parenthood could be challenged with a greater likelihood of success, particularly if he has never made a commitment to the child’s care.  The mother’s opportunity to care for the child is better protected against unwarranted attacks by a man using judicial proceedings without good cause.  Most importantly, a woman who has made the commitment to care and raise a child regardless of the pain she suffered from the assault will have greater autonomy.  The law will not indulge in an assumption that a man with a biological or a marital tie to a child is entitled to the same or even greater authority than the mother has in terms of deciding what is best for the child.  Further, the mother will not have to make a choice between her parental autonomy and financial security for the child, if that security depends in any way on support from the biological father or from the state.

I’m hoping that year ten will prove to be the magic year for Maryland to come to terms with Stanley’s negative legacy and to treat rapists as they deserve when it comes to fatherhood.  I look forward to hearing from readers of Concurring Opinions about my views.

 

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Stanley v. Illinois, Race and Gender

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.

If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.

When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.

Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.

As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.

How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.

First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.

Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.

That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.

You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.

The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision.  The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.

Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation.  After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.

If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.

Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.

Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.

The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.

In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.

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Nine to Five: A Mini-Treatise on Gender Discrimination at Work

 

Introduction

Joanna Grossman’s Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace, a collection of timely and lively essays from her online columns on Justia’s Verdict and Findlaw’s Writ, tracks legal and social developments affecting women over the course of fifteen years. Grossman’s reach in this mini-treatise is broad and deep. She covers topics ranging from legal protections for men coaching women athletes, sexual harassment in the television writers’ room, and baffling court opinions holding that lactation is not “pregnancy-related” to former presidential candidate Mitt Romney’s (in)famous “binders of women.” Grossman also makes recommendations for addressing such stubborn problems as pregnancy discrimination and the wage gap. But, for my money, the structure of the book is particularly illuminating, as it highlights a major failing in courts’ analysis of sex discrimination. Read More

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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Is Marriage Equality A Zero-Sum Game?

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

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

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

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

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

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

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

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

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

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

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

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

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Queering the Family in an Age of Marriage Equality

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

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

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

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

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

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Walter Scott and The Child Support System

In the blizzard of publicity surrounding the murder of Walter Scott, the unarmed African-American who was shot in the back as he ran from a routine traffic stop, the media has somewhat belatedly discovered the criminalization of child support enforcement. What it has yet to address fully is the way that criminalization imposes child support terms on poor, often minority, men that can be much harsher than those imposed through the system that typically applies to middle class families.

Earlier this week, The New York Times discussed the way state-initiated child support enforcement, as it prioritizes extracting payment from poor men who cannot afford it, is a disastrous trap. The article focused on the experiences of Walter Scott, shot in the back after he was pulled over by police for a broken taillight. Scott ran because he feared being sent to jail for falling behind in his child support payments.   His death occurred, according to one source in the story, as part of a punitive system that imprisons men “’over and over again for child support debt simply because they’re poor.’”

Those fighting the excessive incarceration – and murder – of African-American men have highlighted the pointless criminalization of child support enforcement. In South Carolina, a state where African-Americans constitute 28% of the population, 70% of those who end up in jail because of child support issues are black.   While a system that sends poor men to jail for debts they cannot pay is unconscionable, so too is the establishment of many child support awards in the first place: they are arbitrary, unfair and at odds with the treatment of elite fathers and, often, of the parents’ own arrangements.

Child support today reflects a system that results in the treatment of poor fathers dramatically differently from wealthy fathers. Read More

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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

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Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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