ABSTRACT
A new discussion about families and care is unfolding in feminist legal theory and family law. Reproductive technologies, globalization, and left-of-center critiques of same-sex marriage offer an especially fertile environment for imagining sex, intimacy, care, and reproduction outside marriage and the nuclear family. These reconceptualizations continue the revisioning enabled by reproductive freedom, no-fault divorce, and women’s entrance and integration into the workforce. The new family law scholarship also builds upon the vision of feminists of prior generations (Fineman 1981; Frisken 2004; Okin 1989; MacKinnon 1982; Rich 1980; Stack 1974). Earlier feminists questioned the marital family’s central place in our country’s law and social policy and exposed the costs of this framework to women, children, and other vulnerable people. As such, they helped us imagine sex, intimacy, care, and reproduction outside marriage and the nuclear family. It is worth noting the extent to which this once cutting-edge vision now
defines the discipline of family law. Today, a range of family relationships and sexual practices are the subjects of scholarly inquiry on the family. The implications of this trend are significant. Historically, the law of marriage, divorce, and child custody constituted the core of family law. What happens to family law when a range of relationships displaces marriage from the epicenter of scholarly inquiry on the family? Although the full effects of this diffusion are not clear, certain trends are emerging. First, discussion has shifted from divorce and inequalities inside the marital
family to inequality among families. Free from preoccupation with the domination of husbands over wives, scholars are placing renewed attention on the state, the other significant potential source of oppressive (and emancipatory) involvement in the family. The move away from marriage has also introduced more antiessentialist analysis into family law scholarship. That is, because marriage is less prevalent among low-income individuals, people of color, and same-sex couples, scholarship that is less marriage-centric is more likely to consider the life experiences of diverse individuals. Finally, with less investment in
marriage as a dominant subject of scholarly interest, a perceptible shift in the disciplinary boundaries of family law is occurring. Today, constitutional law, tax law, immigration law, criminal law, and employment law-indeed, a host of areas providing background rules for families but not historically considered part of family law-are as likely to be sites of inquiry on the family as the law of marriage, divorce, and child custody. One helpful metaphor in understanding these developments is “the frontier.”
In common usage, a frontier is a region that forms the margin of settled or developed territory, or a fertile area for explorative or developmental activity (Merriam-Webster Online Dictionary 2009). This metaphor aptly describes the recent proliferation of family law scholarship exploring sexual and intimate practices outside the settled territory of the marital family. Salient examples include multiple parenthood (Dowd 2007; Jacobs 2007; Kessler 2005); networked families (Murray 2008); polygamy (Ertman forthcoming); polyamory (Emens 2004a); unmarried fathers (Dowd 2000; Maldonado 2005, 2006); queer culture and intimacy (Franke 2004, 2008; Ruskola 2005); “marginority” sexual practices (Ertman 1995); and friendship (Franke 2008; Rosenbury 2007b; Leib 2007, 2009). A central insight of this work is that law provides the context that can facilitate or hinder unconventional intimate configurations. Some commentators therefore seek to disentangle law from sexual and intimate life (Franke 2004, 2008; Warner 2002). Others seek legal recognition (and regulation) of a wider range of intimate choices (Ertman 2001; Kessler 2005, 2007; Murray 2008). The frontier thus provides a new metaphor, replacing older frameworks such
as the “channeling” function of family law (Schneider 1992), wherein family law exists to channel sex and reproduction into marriage, the institution deemed appropriate for those activities. In the new frontiers of family law, marriage holds a less central, even disfavored, position. In this chapter, I explore the impact on family law of de-centering marriage
from its privileged position, as well as some of the tensions arising from this trend. These include not just the obvious tensions between political conservatives and liberals, but also tensions among critical left and liberal legal theorists of the family. The chapter ends with some predictions about where the new frontiers in family law may take us in the next 25 years.
