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By	newsroom on	 July 8, 2015 Editor's Picks, Fordham Lawyer
A conversation with six Fordham Law professors about family law
Family bonds are among our most intimate and personal relationships, but they are exposed daily to the public and civic spheres. To discuss how the law and the courts treat families, Fordham Lawyer spoke with six Fordham Law professors who specialize in fields related to family law: Associate Professor Elizabeth Cooper, Professor Clare Huntington, Associate Professor Joseph Landau, Professor Ethan Leib, Professor Robin Lenhardt, and Associate Professor Catherine Powell.
Broadly speaking, how does the law view families? Does the legal definition of family necessarily include the idea of marriage, a spouse?
Cooper: In 1989 the New York State Court of Appeals issued one of the first rulings in Braschi v. Stahl Associates that the same-sex life partner of a man who had died had the right to petition to stay in their rent-controlled apartment. The landlord had said, "You don't get to stay because you're not on the lease, and you're not related to or married to the person who died, so you have no rights."
The court said, "You're wrong, landlord. This person can at least try to prove that he was a family member of the original tenant." The court described "family member" as a person related to another through a web of emotional and tangible interrelationships. Mr. Braschi showed that they had lived together for years, had overlapping bank accounts, and shared other attributes that would to our eyes today demonstrate that they were a couple.
In 1989 the court wasn't ready to recognize a gay couple as having legal rights, but the relevant statute recognized an inheritance right for family members and the court found that Mr. Braschi and his deceased partner were a family; ultimately, he was allowed to stay in the apartment.
We seem to be at a moment now where the U.S. Supreme Court and indeed the whole country are focused on how we understand families and make determinations about the rights and responsibilities that attend them.
–Robin Lenhardt
Lenhardt: What family means really depends on the context. Questions about what a family is—what constitutes a family, what the rights and obligations are of a family—run through many areas. For Mr. Braschi, the outcome could have been very different if he were bringing a tort case, if he were involved in a criminal case, or if it were in a medical context. The law defines families in various ways for different purposes. We seem to be at a moment now where the U.S. Supreme Court and indeed the whole country are focused on how we understand families and make determinations about the rights and responsibilities that attend them.
Huntington: Courts and legislatures have become more willing to think about families in functional, and not simply formal, terms. Braschi was one of the early cases that explored the question "What do families do?"
Well, members care for each other emotionally and economically; in the case of adults, they are romantically and sexually involved. We're able to think about and pull apart the functions of families. Then, when you have a group that seems to operate like a family, a court or legislature is more willing to treat them as a family. Of course, there are downsides to thinking about functional families. There is much greater scrutiny of the would-be family, and there is a very narrow script you have to follow if you want to be a functional family. Still, the idea of function seems to be a more nuanced way to think about family.
Powell: Plus, the roles of women have changed so radically. If we think about the history of marriage—early on marriage was for economic reasons, then evolving to involve romance, and now to include self-expression—the changes have paralleled the shift in how women have entered the workforce in major numbers. Forty percent of married women are now the main breadwinners in their families. That's a radical change: it means it no longer makes sense to have traditional division of labor—of women being the caregivers and men being the wage earners. It also leads to major disruption in how we conceive of division of labor in the household and in families.
Lenhardt: That many women are the primary breadwinners in American families is certainly noteworthy. But we have to drill down on the numbers to comprehend fully the story that the statistics tell. Progress has been made, but family and gender inequality remain very real. Many of the women breadwinners are single parents who are struggling to raise children alone on pay often significantly less than what their male counterparts earn.
Powell: Yes, in my recent work I've been looking at feminist critiques of marriage in light of marriage equality. Early critiques, such as those by suffragists, had assumed that women weren't working. Of course this hadn't been the case for African- American women. Black women in marriages have always worked in ways that haven't been true for white women in traditional family structures. These critiques, then, have never really represented women as a whole.
Should the law better accommodate relationships that do not squarely fit into definitions of family, for instance, friends?
Leib: My views about this have continued to develop and in some ways my last two books sit in a kind of tension. In the earlier book [Privilege or Punish? Criminal Justice and the Challenge of Family Ties, Oxford University Press (2011)] I try to focus on ways the law ought to be less focused on family status. The second book [Friend v. Friend: The Transformation of Friendship—and What the Law Has to Do with It, Oxford (2009)] is an argument for why the law ought to be focusing on status, just not a kind of traditional family status. As I continue to think more about it, I'm a bit more sensitive to just how difficult it is to generate a meaningful checklist that the law can effectively utilize to implement an agenda that would promote bonds of intimacy that individuals hold dear. There's a conventional view that the law and public policy have a role to enable us to, or at least not stand in the way as we, formulate bonds of intimacy. But just how much law and policymakers can actually do is rather unclear.
There was a lot of resistance to the book I wrote about friendship. There's something to that resistance— the feeling that the more the law tries to help us, the more it is going to mess things up. So maybe the direction is to attempt to push law out of the way more and more. That has disadvantages of its own, because our bonds of intimacy are the places where we are the most vulnerable, and it seems to me that a theory of the state and its involvement in our daily lives needs to piggyback on its role in protecting us from certain kinds of vulnerability, whether it be poverty, systemic discrimination, or our bonds of intimacy. If we completely immunize the family from the law, very bad things can happen within the family, to women especially. Similarly, if we ask the law to stay away from our other bonds of intimacy, we risk leaving many people vulnerable to predation, exploitation, and other ways in which we hurt each other in substantial ways. In my book on friendship, I examined areas in which friends were compromised, that is, where some kind of injury had occurred. I didn't, however, want to take the position that, just because the law was protecting the private sphere of family, it ought to do the same with friendship. I didn't think that made sense. Striking the right balance between protecting people from vulnerability and not meddling in their private affairs is very difficult. It has not been done with any particular sensitivity in the past, and so it's not clear that the political process is going to be a great place to have more optimal outcomes reached.
If not politics or policy, what mechanism could better serve the legal needs of families and other close relationships?
Cooper: Statutes and common law create the framework for legal rights—the floor and the ceiling. Therefore, for gay couples to receive equal rights as straight couples, the legislature or the courts needed to act. Developing work-arounds through contracts were not sufficient because so many rights and responsibilities, as well as status and resources, afforded to married couples are available only through state and federal law. But the law too often acts as a sledgehammer, when really we need a scalpel. The law functions in an oblique way. As Ethan said, it would be great to find ways to legally recognize relationships beyond marriage and family, but the law is just not very flexible.
The campaign for same-sex marriage has advanced through state legislatures, state and federal courts, and the ballot box. What do these different paths tell us about our system of laws?
The lesson is that courts, legislatures, and executive branch officials within both the federal and state governments all have a role to play in advancing the campaign for the freedom to marry.
–Joseph Landau
Landau: I think they reflect how important the broader legal process strategy has become to achieving civil rights—a lesson that likely has purchase beyond the LGBT context. During the 1990s, many experts believed that the freedom to marry would be achieved through a single court battle in federal court, or a string of federal court battles. It became apparent, however, that a fifty-state approach would prove more durable than a singular federal-court strategy. And then the campaign moved outside the courts and into legislatures, ballot boxes, and state executive branch agencies. Progress came about through the work of numerous institutional actors, at numerous levels. The lesson is that courts, legislatures, and executive branch officials within both the federal and state governments all have a role to play in advancing the campaign for the freedom to marry.
How can the history to overturn antimiscegenation laws inform current efforts to legalize samesex marriage?
Lenhardt: It's no surprise that lawyers are using antimiscegenation law cases in crafting arguments about marriage equality, but drawing on those analogies without really interrogating them raises some serious concerns. When Loving v. Virginia is cited, for instance, it is suggested that the troubles associated with race and family are somehow a thing of the past. One just has to look at the news to see that we are, in fact, not living in a post-racial moment. We need to look critically at marriage and the regulatory function that it has served. In my own work, I am exploring the historical role that marriage-related laws and norms played in establishing racial caste and subordinating African Americans and other minorities. There is a danger in valorizing marriage so completely that we ignore this history or blind ourselves to alternative structures that might also provide support to families. To the extent that we keep marriage as the sole lodestar for family formation in our society, there are going to be groups like African Americans—the most unmarried group of any in the country—who are going to be marginalized.
In April, the Supreme Court heard Obergefell v. Hodges, the consolidation of four same-sex marriage cases. Why is this case important? What is at stake?
Landau: There is a lot at stake—both legally and practically speaking. As a legal matter, what's at stake of course is the right of two people of the same sex to receive the same benefits and entitlements that married couples presently enjoy. And a decision about marriage rights could also have cascading effects for other questions of LGBT civil rights. As a practical matter, it is likely that thousands of couples have already gotten married in the wake of lower federal court decisions, and in the fall of 2014, the Supreme Court affirmatively chose not to review many of those rulings or put others on hold. This raises the question whether the Court now wants to upend the status quo in all those states in which couples have gotten married in the wake of lower federal court rulings and who are now considered married both in their own states and in the eyes of the federal government. Whatever the Justices think about the merits of the constitutional question, they may be very hesitant to change the state of affairs yet again in the majority of the states that now recognize the right of same-sex couples to marry.
Cooper: The Court has let these cases percolate up from the states in such an apparently deliberate way that it seems almost inevitable that it will hold that there is a constitutional right for same-sex couples to marry. But it's very clear that the Court didn't want to get too far ahead of the rest of the country. We now have 36 states that permit same-sex couples to marry, with approximately two-thirds of them adopting marriage equality since the Court's 2013 decision in United States v. Windsor [in which part of the Defense of Marriage Act was ruled unconstitutional]. Over 70 percent of the American public lives in states that permit same-sex couples to marry. Close to 60 percent of the American public supports the rights of gay people to marry. It would be hard, although not impossible, to see the Court erect a roadblock to that.
Is there really a constitutional right to marry or are you just constitutionally protected from the state discriminating against you in the choice of which marriages will be recognized? I think that opens up the possibility for this more radical view about whether states will exit the marriage business altogether and do so in some measure to avoid having to recognize same-sex marriages.
–Ethan Leib
Leib: It seems like the way we're framing the same-sex marriage question is, "Will gay people have a constitutional right to marry?" I wonder, though, if the Court might focus more on the way in which laws that favor heterosexual couples in the enterprise of marriage are problematic. Is there really a constitutional right to marry or are you just constitutionally protected from the state discriminating against you in the choice of which marriages will be recognized? I think that opens up the possibility for this more radical view about whether states will exit the marriage business altogether and do so in some measure to avoid having to recognize same-sex marriages.
Huntington: With so many other rights and benefits turning on marriage, I don't think the states and the federal government are going to get out of the business of marriage anytime soon. What would happen to immigration law? To tax law? Decoupling marriage from legal obligations and benefits would be a sweeping project that neither the Supreme Court would want to set in motion nor the states would take on themselves.
Powell: The set of most recent cases in the Supreme Court more squarely raises the question of federalism and the authority of federal courts to rule on the constitutionality of state laws regulating family matters. Windsor dealt with DOMA and its implications for the thousands of other federal laws that relate to benefits for married couples. These cases, on the other hand, address state laws—specifically the twin issues of bans on same-sex marriage and the refusal of some states to recognize marriages performed in other states. Hollingsworth v. Perry [which overturned California's Proposition 8]was dismissed on standing grounds, so the Court didn't directly reach the federalism concerns at issue there. But the cases currently pending in the Court cut to the heart of what issues surrounding marriage should continue to be controlled by the state, or because of the fundamental inequality and due process concerns that are raised, whether we begin to recognize the national dimensions of marriage and family. In a sense, families are a small system of governance. At the same time, we've been wary of allowing law to intervene too deeply into what we see as a private space. But some degree of legal regulation is necessary, on the one hand, to guard against abuse, and on the other hand, to protect against those who would tamper with the equality and liberty interests that ought to safeguard family structures.
How does the United States measure up with other countries in regard to marriage equality and other family-related laws?
Powell: The Scandinavian countries look pretty good in terms of paid parental leave and gender roles, and parts of Europe look pretty good in terms of marriage equality. Beyond a handful of countries in Europe and the Americas—and fellow travelers like South Africa—the global trend for marriage equality is really mixed. For example, we see a number of grassroots movements that have courageously been trying to challenge criminalization of same-sex intimacy and prohibition on marriage. People are being assaulted, jailed, killed. While I was working in the Obama administration, the president issued an executive order to mainstream LGBT rights into U.S. foreign policy and addressed the issue of being able to love whomever you want in a speech before the opening of the United Nations General Assembly. When he said that line, an African head of state, who was sitting behind a colleague of mine, started shaking his head and said, "Oh no, oh Lord, no." There's still so much resistance against LGBT rights in parts of the world. The trend line is not completely up globally. I think the United States can lead by example to some extent, but the movement is going to have to be grassroots and local for it to be legitimate and have legs.
There's still so much resistance against LGBT rights in parts of the world. The trend line is not completely up globally. I think the United States can lead by example to some extent, but the movement is going to have to be grassroots and local for it to be legitimate and have legs.
–Catherine Powell
Cooper: Parts of Africa are not the only problem. Vladimir Putin is leading a campaign against the LGBT community in Russia that is almost unprecedented in its scope.
How are same-sex marriage laws affecting the legal landscape for non-married individuals?
Landau: It's an interesting question. As the march toward the freedom to marry started gaining traction in the mid-90s, those who opposed it offered domestic partnership as an alternative. The marriage litigation is predicated on the idea that these alternatives occupy the world of the second best. Outside the courts, some advocates have called for a menu of options. In England, for instance, there is a campaign to ensure that both marriage and civil partnerships remain open to all couples. Currently, only gay couples have the choice of which institution to enter, while different-sex couples have only one option: marriage. Cooper: If the upcoming Supreme Court ruling recognizes a constitutional right for same-sex couples to marry in the United States, I believe that similar efforts within the United States will significantly fall by the wayside. The United States doesn't have the same tradition as the United Kingdom and other countries like France and the Netherlands, where there is something other than marriage. It is a shame that we do not have that flexibility. Lenhardt: I worry that there may be some couples who don't want to marry, who aren't interested, and who may be pressured to do so because their employer will say, "Look, now that there's marriage, you have to be married if you want to continue to enjoy these benefits." The ways in which marriage gets deployed to regulate intimate choice going forward is something to which we have to be attuned.
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