Chapter from Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations
“I. STRUCTURING INTIMACY
Core assumptions inherent in our current social and cultural narratives about the family as an institution have tremendous significance in the political and legal definition of the family and, hence, for the fate of mothers. The legal story is that the family has a “natural” form based on the sexual affiliation of a man and woman. The assumption that there is a sexual-natural family is complexly and intricately implicated in discourses other than law, of course. The natural family populates professional and religious texts and defines what is to be considered both ideal and sacred. The pervasiveness of the sexual-family-as-natural imagery qualifies it as a “metanarrative”—a narrative transcending disciplines and crossing social divisions to define and direct discourses. The shared assumption is that the appropriate family is founded on the heterosexual couple—a reproductive, biological pairing that is designated as divinely ordained in religion, crucial in social policy, and a normative imperative in ideology.
The dominant component of the metanarrative—that the family is sexual—means that the family is experienced as an institution of primarily “horizontal” intimacy, founded on the romantic sexual affiliation between one man and one woman. Intergenerational relationships—vertical lines of intimacy—may be temporarily accommodated, such as when children are “underage,” or uncomfortably maintained, such as when an ill, elderly parent has to be fitted into the sexual family. The dominant paradigm, however, privileges the couple as foundational and fundamental. Children achieve adulthood and go on to form their own discrete, primary, horizontal and sexual connections, drawing boundaries between this new unit and their childhood families. Parents are shipped to nursing homes or eventually die, and the sexual family reverts to its natural state.
The image of horizontally organized intimacy is a crucial component of contemporary patriarchal ideology in that it ensures that men are perceived as central to the family. Politicians, as well as religious leaders, extol the marriage relationship as sanctified, the core of the family. Alternatives to the nuclear family are cast as threatening and dangerous to society, destructive to cherished values. In addition, marriage is constructed as essential, not only to the foundational relationship of the nuclear family but to the very basis of society itself. As Chief Justice Waite wrote over a hundred years ago in a case condemning plural marriage:
Marriage, which from its very nature is a sacred obligation, is . . . a civil contract, and usually regulated by law. Upon [marriage] society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal (Reynolds v. United States 1878, pp. 165-66).
As this quote illustrates, in our society, marriage has historically been so venerated as to become a “sacred” institution, the archetype of legitimate intimacy. In popular culture, sexual expression (particularly heterosexual expression as traditionally realized through marriage) is portrayed as the indication of maturity, completeness, success, and power. Historically, deviance from the formal heterosexual paradigm of marriage has brought with it condemnation in the discourses of psychology, social work, and medicine. In law, marriage traditionally has been designated as the only legitimate sexual relationship.
States have punished extramarital sexual relationships through laws making cohabitation, fornication, and adultery criminal (Fineman 1981). Contemporary laws and prosecution policies in some states continue to treat these configurations as illegal or extralegal and, therefore, deserving of criminal and/or civil sanction (Fineman 1991). The nuclear family remains the only form universally protected and promoted by our legal institutions. However, the law has been altered somewhat in response to changing patterns of behavior, offering at least the promise of a more relaxed and expandable legal model of the family. Nonmarital sexual behavior has been decriminalized in many states in recent years. So-called “alternative” family arrangements have even been afforded some specific affirmative protections in several states and municipalities that recognize them as having quasi-family status for some limited purposes.
These legal changes reflect and reinforce challenges to the hegemony of the nuclear family and are part of an “evolutionary dialogue” associated with cultural negotiation. The social changes upon which they are based have not proved to be revolutionary, however. To a large extent, the new visions of the family merely reformulate basic assumptions about the nature of intimacy. They reflect the dyadic nature of the old (sexual) family story, updating and modifying it to accommodate new family “alternatives” while retaining the centrality of sexual affiliation to the organization and understanding of intimacy. This process of reiteration and reformulation reveals the power of the metanarrative about sexual affiliation and the family. The paradigm structures and defines the rhetoric and directs the debate about alternatives.
While a great deal of emotionally charged rhetoric in family law is directed at children, the primary focus is still on maintaining the traditional heterosexual family model. In the rhetoric of those espousing children‟s rights, children‟s problems are deemed to be created by the fact that they are “trapped” in a “deviant” family situation, “prisoners” or “victims” of a family that is often “broken” through divorce or “pathological” in that it was never sanctified by marriage. Attention and concern initially directed at children too often is deflected to the adults with whom they live who have failed to form or maintain a sexual connection. The sexually affiliated family is the imposed ideal and, as such, it escapes sustained, serious consideration and criticism. The nuclear family is “natural”—it is assumed. The dominance of the idealized sexual family in social and legal thought has restricted real reform and doomed us to recreate patriarchy.
As a result, and in spite of the real and perceived ideological shifts in what is socially and legally considered to be an acceptable family formation, single motherhood can comfortably continue to be considered deviant. It is deviant simply because it represents the rejection of the primacy of the sexual connection as the core organizing familial concept. In fact, the threat in its practice is implicit in the language we use to discuss the status. The very label “single mother” separates some practices of motherhood from the institution of “Mother” by reference to the mother‟s marital situation. Mother, as constructed and defined in the discourses about “single” mothers, is modified by her relationship (formal and legal) to the father—she is single. By contrast, the institution of motherhood when practiced in its “normal” form is not analogously modified. No one speaks of a “married mother”—the primary connection of husband and wife is assumed in the unadorned designation of “Mother.”
It is only the “deviant” form of motherhood that needs qualification and, by implication, justification. Furthermore, in this process of distinguishing the deviant variation of motherhood from the married norm, a complementary cluster of stereotypical designated family roles are also resolved. Husbands and wives, as well as mothers and fathers, are created by the nuclear family. These roles are valued according to contemporary images of the ideal family.
That the relationship between women and men has been at the core of our perception of family is evident when we see how it has defined other family members. For example, the historic characterization of children as “legitimate” or “illegitimate” depended on whether their parents were married. While children of unmarried parents are more apt today to be labeled “nonmarital,” the focus is still the same—the child is defined by the relationship between the parents.
The privileging of the sexual tie stands as an eloquent statement about our understanding of the nature of family and intimacy. It also impedes the development of solutions to real family problems. One negative consequence flowing from the obsession with sexual affiliation, for example, is that in both policy and reform efforts the inevitable focus seems to be on “doing justice” between sexually affiliated adults. Given the contemporary hostility between the sexes and the status of equality as the dominant legal framework for discussions about fairness and justice, the potentially divisive effects of this focus are apparent. As we face high divorce rates and the organization of women and men into gendered interest groups when confronting issues of intimacy, we should not be surprised that legal rules are considered prizes by competing factions. Law provides an arena for public, symbolic (as well as real) competition between groups of women and groups of men.
Furthermore, in the process of regulating intimacy, the coalescence of antagonistic interests along gendered lines is probably inevitable. The sexual family represents the most gendered of our social institutions, and this remains true even after decades of an organized women‟s movement. While other, nonfamily transformations have fostered male-female competitiveness, the family is the one area where tensions generated by perceived changes in the status and position of women are registered most clearly.”
Fineman, Martha Albertson, The Sexual Family. FEMINIST AND QUEER LEGAL THEORY: INTIMATE ENCOUNTERS, UNCOMFORTABLE CONVERSATIONS, M.A. Fineman, J. E. Jackson, and A. P. Romero, eds., Ashgate, 2009; Emory Public Law Research Paper No. 09-74. Available at SSRN: https://ssrn.com/abstract=1516635
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