Category: Family Law

3

The Old Illegitimacy Part II: Facilitating Societal Discrimination

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

Read More

9

The Old Illegitimacy: Legal Discrimination Against Nonmarital Children

Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26.  Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union.   Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status.   In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).

For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children.  They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations.  Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.

Read More

2

Money Matters in Ongoing Marriage Law

Married life is characterized by a sharing norm. As I described in an earlier post, spouses commit to and in fact engage deeply in sharing behavior, including a shared family economy. Overwhelmingly, spouses pool economic resources, including labor, and decide together how to allocate them to benefit the family as a whole.

In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage.  It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just one spouse can also be understood (by both partners) to be appropriate and deserved—a recognition of the individual within a sharing framework. Conversely, it is also possible that spouses’ monetary dealings can undermine individual autonomy and the relationship as well. For example, one person might exercise authority over money in a way that disregards the other. Accordingly, power to influence financial resource allocation within the family is important for individual spouses and for togetherness.

It becomes a special concern then, that sharing patterns in marriage are gendered.  As highlighted in my previous post, role specialization remains a part of modern intimate partner relations. Particularly true for married couples, men continue to perform more as breadwinners, and women more as caregivers. As a result, women tend to have reduced earning power in the market. How does this market asymmetry translate into economic power at home? Happily, in a significant departure from the past, a majority of couples report that they share financial decisionmaking power roughly equally. Indeed, most married couples today endorse gender equality as an important value in their relationship. However, in a significant minority of marriages, spouses agree that husbands have more economic power. For some couples then, a husband’s breadwinning role and/or perhaps his gender, confers authority in contentious money matters.

How should law governing an ongoing marriage respond to these sharing dynamics? Consider this hypothetical fact situation. A husband has a stock account from which he plans to make a gift to his sister who he feels really needs the money. The husband suspects that his wife would not approve of the gift. Even though the wife too loves the sister, she believes the sister is irresponsible with money. Let’s assume that the money in that stock account was acquired while the parties were married, and that it came from the market wages of one or both of the spouses earned during marriage. It was a product of the couple’s shared life. Does contemporary law allow the husband to give his sister the gift without her consent? Without even telling her? How should legal power over the money be allocated?

Read More

6

Book Review: Gender Pressures (Reviewing Williams’s Reshaping the Work-Family Debate)

This book review is co-authored by Naomi Cahn.

Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter (Harvard 2010), 304 pp.

As the unemployment rate increases, as we chart the rise of the Tea Party and the Republican Party’s ability to express disdain for the unemployed without significant political cost, Americans lack a roadmap for the role of class and gender in the new American landscape.  Joan Williams’ book, Reshaping the Work-Family Debate:  Why Men and Class Matter (Harvard 2010), supplies that roadmap.  The book creates an innovative critical framework for examining the relationship between law, work and family in the post-industrial economy and for ensuring that both men and women are included in any revisioning of this relationship.

The book builds on Williams’ earlier research exploring the maleness of the workplace and expands it dramatically.  Williams starts with the caustic observation that “we still have a workplace perfectly designed for the workforce of the 1960’s.”  That workplace depended on the availability of “ideal workers,” who could meet employer expectations premised on the availability of someone else to tend to the children, run the necessary household errands, and make the work-family relationship work.  While today’s workplaces successfully assimilate women who participate on the same terms as men, they remain remarkably resistant to creating more supportive environments that would assist parents – male or female – in balancing the competing demands between work and family.  The curious question is why.  Williams makes the case that more flexible workplaces would benefit employers and that the U.S. is so far from the norm that it can boast “the most family-hostile public policy in the developed world.”  She argues that the key to changing it, as her subtitle suggests, requires bringing class and the construction of gender into the debate.  She shows how the hidden injuries of class fuel gender traditionalism and the culture wars associated with a conservative resurgence.

Where the book moves most significantly beyond Williams’ earlier work is placing the debate over the workplace at the intersection of class and gender.  The first part of the book thus retells the story of work-family conflict.  The initial chapter takes on the story that while well-educated women are not more likely tot drop out of the work place, they may face the most intense choices between the remade ideal of super- mothering (the new helicopter parents) and workplace norms that prize total dedication.  The second chapter then tells the often heartbreaking stories of the dilemmas working class parents face; these dilemmas are often not so much about time as flexibility – the inability to make a personal phone call can affect children’s lives.

The middle part of the book links these developments to the remaking of workplace norms of masculinity.  In 1965, class had little to do with leisure; executives and union members worked about the same hours. Today, the American elite works longer hours than most of the rest of the world while working class men put in fewer hours than they did in 1965.  The new “macho” norm for law firm associates or Silicon Valley engineers is total dedication; for the working class men on an oil rig, it continues to be physical bluster.  Williams argues, however, that both competitive norms not only drive women away, they are also bad for business.  Industry productivity goes up when the company takes into account the costs of attrition and the lack of cooperation.  Workplaces with mixed rather than macho gender norms outproduce the competition.

Read More

2

Intimate Partner Sharing and Commitment Today

My thanks to Angel Maldonado and the rest of the Concurring Opinions team for inviting me to blog this month. During my guest stint I will highlight the law’s involvement in the everyday lives of couples, exploring the intersections of law, sharing and economic behavior and gender relations.

Is longstanding connection and commitment falling out favor? Does solitary individualism rule our times, even in our personal relationships? It is easy to see the disconnects around us. Pick the celebrity divorce of your choice as an example. After forty years of marriage, even Al and Tipper called it quits. So do a lot of ordinary couples. Although declining a bit in recent decades, divorce rates remain high and cohabitants break up rates are even higher. Some even suggest that marriage itself should be on the chopping block—get the state out of intimate relationships, don’t privilege one kind of relationship over another, and leave adults to choose, define and resolve their own relationships.

But failures and worries of relationship failures notwithstanding, the vast majority of American’s today still desire and in fact pursue deep long lasting relations with an intimate partner, and for many, marriage is still seen as the ideal. Although marriage rates have decreased and vary, especially by race and socioeconomics, most people in the U.S. still get married. Lifetime marriage rates from the 2000 census show that overall 86% of men and 88% of women have married at least once by the time they are 49. Interestingly, many unmarried folks are also enthusiastic about marriage. For example, Pew Research Center data from a 2007 survey found that most unmarried adults say they want to marry. Both the never-married parents as well as the cohabiters in the survey were more skeptical than all others that a person can lead a complete and fulfilled life if he or she remains single. No doubt then, committed coupling is still very much in vogue. Something remains powerfully attractive about being part of an intimate partner relationship more generally and for many, about marriage in particular.

What so many people are after is a committed sharing relationship—a protected arena to build and enjoy a web of interdependent connections that bridge the gap between individuals. For many, marriage is the vehicle of choice for this kind of relationship, although surely, cohabiting relationships recurrently serve these goals as well. Because cohabitation is more variable, I will focus on marriage for now, as marriage clearly includes a strong sharing norm. Research demonstrates that extensive sharing is viewed as a centrally important goal for marriage. And behavior reflects this. Although not in every way, and certainly not always perfectly accomplished, spouses regularly engage in an interdependent sharing of their lives, socially and economically.

How should law regard sharing commitments and behavior among couples? Should sharing be supported and nurtured? For any couple who desires it? In what form? Should law funnel intimate partner sharing into a particular relationship structure such as marriage or perhaps civil unions? Or should law seek to reduce interdependence and maximize independence for partners? Alternatively, perhaps law should withdraw altogether and leave it to couples to govern themselves?

Read More

4

Is There a Constitutionally Protected Right to Use Reproductive Technologies?

A few months back Jessie Hill had a blog post entitled “My so-called right to procreate” asking about the scope of procreative liberty protected by the Constitution.  I wrote about this issue in passing in a paper devoted to the opposite question, whether the constitution protect a right NOT to procreate (or what I prefer to think of as rights not to procreate, separable sticks in a bundle encompassing the right not to be a legal, gestational, or genetic parent – indeed as I pointed out there, I think the right to procreate should be similarly unbundled).  In a new paper entitled Well, What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction, as part of a larger project on the justifications for the regulation of reproduction I briefly address a slightly narrower issue than the one in Jessie’s post, whether there is a negative liberty fundamental right to non-interference with reproductive technology use.  I thought I would set out and expand on that discussion here and see what other readers thought.

My own view is that the constitutional status of state interventions preventing access to reproductive technologies (either directly, e.g., prohibitions on access to reproductive technology for women over age 50 or through regulation, or indirectly, e.g., parental fitness screening for surrogacy users) is deeply under-determined by the existing doctrine.  The only U.S. Supreme Court decision to consider whether there is a fundamental right to become a genetic parent, Skinner v. Oklahoma, 316 U.S. 535, 536-39 (1942) (finding a fundamental right that was violated by physical sterilization of individuals convicted three or more times of crimes of moral turpitude but not embezzlement) is subject to a myriad of possible interpretations especially as applied to reproductive technologies.

Here are a few:

Skinner protects as a fundamental right any use of reproductive technologies that simulates that which would be achievable by coital reproduction in the fertile individual (not, therefore, something like genetic engineering). John Robertson is the person I most closely associate with this view (although his view has considerably more nuance that I can get across here).

On the other extreme, one might argue that because Skinner itself was premised on an Equal Protection claim not a substantive Due Process one and thus there is no substantive Due Process right to Procreate at all. Cf. VICTORIA F. NOURSE, IN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR-TRIUMPH OF AMERICAN EUGENICS 165 (2008) (concluding that “both liberals and conservatives have made a mistake” in their reading of Skinner because the case was “neither argued nor decided as a case about rights in the sense that we use the term ‘fundamental right’ today).” That said, over the years the Court has lumped Skinner in with its substantive Due Process jurisprudence so often that the time may have passed for hewing to this distinction.

In between there are several other positions:

Read More

2

A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?

While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act  are in some ways the more interesting (and if upheld more meaningful) decisions.  Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal.  I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage.  Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and  there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here.  Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill?  Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests?  Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be?  Which case is the one someone supportive of these efforts should want to see get to the cert stage first?  How does the standing to appeal issue in Perry fit in to the calculation?  Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first.  Lots of questions and few answers, but I thought others might have interesting thoughts…

6

Clarifying Commodification

I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.

At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.

(1) Coercion:

(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent.  It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern.  It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns.  Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted.   It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly.  While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.

(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market.  For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.

Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population.  It is only a partial solution because it usually results in shortages.  One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).

(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality.  Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”  Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997).  More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way.  For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.

As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate.  For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.

Read More

2

Cause and Effect in Contracting Trends

The Moscow Times reports:

“According to official state data, of the nearly 1.2 million Russian couples who registered marriages in 2009, only about 25,000 — or about 2 percent — sealed contracts stipulating the terms of a divorce.

And that’s with roughly 58 percent of the country’s marriages eventually falling apart.

In the United States, most estimates show that about 4 percent of couples now sign a prenuptial contract, although the divorce rate there is about 43 percent.”

What explains the difference?  Is it:

(1)  A culturally-based view of love and contract?  That’s what the reporter concluded: “A prenuptial agreement treats the wife and husband as equal parties . . . is unacceptable for Russia’s traditional patriarchal view of the family . . .’Russians believe that love and a marriage contract are incompatible,’ [said Alexander Tesler, a Moscow-based psychotherapist.]”

(2) Russians’ distrust of courts and private contractual instruments, given the courts’ dubious history of nonbiased adjudication?

My money is on #2.  How could we test the theory?  The best approach would be to find a society with a better score on court performance than Russia’s, but which shares its “traditional patriarchal view of the family.”  I’ll take nominations.

Commodifying Caring

Roger Scruton has complained that, in our society, “too many goods have a price.” He makes a Walzerian argument that certain experiences cannot be bought and sold without doing violence to their ultimate social meaning:

A century and a half ago John Muir in America and John Ruskin in England initiated the movement to save our world from spoliation. They rightly understood that nothing would  be saved if we simply defend it on economic grounds. A valley might be useful as farmland, but it might be even more useful as a reservoir or an opencast mine. Only if we recognize the intrinsic value of nature will it be proof against our predations; hence we should esteem landscapes and forests for their beauty, for their sacred quality, for the part they play in defining us and ennobling our settlements, rather than for their use. Only this will keep the market at bay and prevent us from consuming our world. . . .

Love is priceless, not because its price is higher than we can pay, but because it cannot be purchased but only earned. Of course, you can purchase the simulacrum of love, and there are people who are accomplished providers. But love that is purchased is only a pretense. Goods like love, beauty, consolation, and the sacred are spiritual goods: they have a value, but no price.

Economists don’t like spiritual goods. Such goods are connected to us not as things to be used, consumed, and exchanged but as parts of what we are. To lose them is to lose ourselves.

Perhaps the ultimate revenge of the economic mindset on commitments like Scruton’s is the rise of the caring industry, which Ronald W. Dworkin incisively examines in a recent article:

Read More