Marriage, Biology, and Federal Benefits
This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.
The New Kinship
Over the past century, the Supreme Court has articulated numerous doctrines that protect family privacy. These doctrines are not, however, well-suited to the brave new world of families formed through donor eggs, sperm, and embryos. As the number of donor-conceived children born to same-sex and heterosexual couples and to single parents increases, and as these families develop connections to one another, the law has not yet adjusted. This Article provides an extensive mapping of these “donor-conceived family communities,” and it reaches two major conclusions that support the development of these new families. First, relational interests, the traditional focus in family law, should govern the regulation of the donor world. Second, legal recognition should be given to the emotional and psychological ties between donor families in order to provide guidance to the development of donor-conceived family communities. These two principles point the way to integrating changing social realities into a new legal framework for donor families, allowing children from the same donor to connect to one another. While further regulation of relationships has its dangers, this paradigm shift in the donor world could prompt broader beneficial changes, creating options beyond framing all families within the dyadic nuclear-family model.
Dependency and the Liberal Polity: On Martha Fineman's the Autonomy Myth
This review essay considers Martha Fineman's provocative new book, The Autonomy Myth (2004). In it, Fineman argues that popular ideology in the United States has become fixated on the myth that citizens are and should be autonomous. Yet the fact that dependency is unavoidable in any society and must be dealt with to sustain the polity, Fineman contends, gives the state the responsibility to support caretaking. Fineman surveys a range of public policies and argues that the autonomy myth has caused the United States to fail woefully in this task. She also criticizes proposals to shore up and subsidize marriage and the marital family as misguided attempts to cabin dependency issues within families. This review essay discusses the contributions that The Autonomy Myth makes, as well as assesses Fineman's normative proposals. I argue that Fineman carries her point that dependency is a condition for which a good and just polity should assume responsibility. Fineman's conceptualizing this responsibility in terms of a debt that society owes to caregivers, however, raises particular conceptual difficulties that weaken her claim for state support. In place of Fineman's framing of this issue, I suggest that the state's responsibility should be conceived as grounded in its obligation to protect its most vulnerable citizens. This alternative conceptualization, I contend, not only provides a firmer ground for the state's duty to support caretaking, it also more clearly delineates the limits of that support in a liberal society that seeks to pursue multiple goods. The essay also situates Fineman's proposal in context with competing feminist proposals for dealing with the issue of caretaking, and argues that the state should seek to support caretaking in a manner that encourages citizens to integrate these responsibilities with work in the labor market. Finally, this essay asserts that while Fineman is correct that the fact of dependency should cause the state to redirect much of its support toward caretaker-dependent relationships, this does not require the state to abandon civil recognition of relationships between adults, as Fineman would have it. Instead I argue that according legal status to relationships between adults can be one of the ways through which the state takes account of dependency.