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.
Immigration Law and the Regulation of Marriage
This Article argues that much of federal immigration law functions as a form of family law. Although the conventional wisdom holds that family law is state law, federal immigration law actually regulates marriages that involve immigrants much more extensively than state family does, often unintentionally. This Article maps the architecture of federal immigration law regulation through the four stages of marriage: courtship, entry into marriage, the intact marriage, and exit from marriage through divorce. It shows how laws that appear at first glance to effectuate immigration policy - including the immigration provisions of the Violence Against Women Act, the requirement that citizen spouses sign an affidavit of support in order to sponsor their immigrant spouses, and immigration laws prohibiting marriage fraud - all regulate the creation and dissolution of legally recognized family relationships, and/or determine the legal rights and responsibilities of family members, in other words, function as family law. It then offers ways of analyzing whether Congress is acting within its immigration power when it passes laws that regulate the family.
Assisting reproduction, choosing genes, and the scope of reproductive freedom
The reproductive battles of the last forty years have been largely about contraception and abortion. In the twenty-first century reproductive battles will also pull in assisted reproduction, genetic selection, and genetic enhancement. The conceptual framework developed for abortion and contraception set the backdrop for those conflicts, but they take us only a short way into this new territory. Issues arising with assisted reproduction and genetic selection focus more directly on efforts to reproduce than on avoiding reproduction—the core interest in past struggles over contraception and abortion. Those struggles were also centrally about respecting the equal status of women as citizens through control over their reproductive lives.1 The new territory, by contrast, involves the ability to bear and rear children when women and men want to reproduce. This places a new set of issues on the table—the importance of reproduction to individuals as such. Fashioning a social and legal consensus about reproductive rights will push all involved—individuals, families, doctors, professional organizations, courts, and legislators— to confront the meanings and interests at stake in the reproductive decisions under scrutiny. To do that, we have to ask why reproduction is important and valued, and then whether the logic of respecting it entails the same robust protection for assisted reproduction and genetic selection that contraception and abortion warrant. Issues of the meaning and scope of reproduction are directly implicated in most current and anticipated controversies over both assisted reproduction and genetic selection.2 The main controversies in