Religious Resistance to Family Law Reform in the US

by Martha Albertson Fineman

“America is a deeply divided nation. We differ on such basic issues as how we should order our lives and the role of society and its institutions in shaping human behavior. We have divergent views on the importance of duty and obligation as contrasted with liberty and individuality. Various traditions, religious, cultural and otherwise, have produced very different and as strongly held beliefs. Caught in the cross hairs of this diversity is the American family.

The American family has changed dramatically, particularly over the past four decades, and these changes are reflected both in modern family law and in contemporary movements to alter that law. Social movements have organized around these changes that have goals that are in stark opposition to each other: one group seeking to use law to expand our ideas about the family and provide more people the benefits of family status, the other mobilizing to remove innovations and steer society back to the more exclusive (and excluding) ―morally-mandated‖ traditional family.  Representing polar opposites in this struggle are the feminist approaches to family law reform, which is individualistic and rights-centered and fundamentalist rhetoric, which is steeped in religious imagery, symbols, and metaphors.

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Intimacy Outside of the Natural Family: The Limits of Privacy

by Martha Albertson Fineman

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“In this paper I undertake a very pragmatic and focused consideration of whether it is possible to rework existing legal concepts of privacy in a way that would be ideologically compatible with dominant social norms in order to shield single mothers from excessive state regulation and supervision. I ultimately conclude that my desire to protect the decision-making autonomy and the dignity of poor and/or single mothers cannot be satisfied by resort to this area of law. At the constitutional level, this is so because notions of privacy are typically articulated as rights belonging to individuals, not family entities. And in the common law, the concepts of “family” or “entity” privacy similarly fail to protect poor and single mothers because these concepts have been developed and employed in the context of widely shared ideological constructions of what constitutes the “natural” family. This image of the natural family in turn serves as the norm in our understandings of intimacy in discussions of the family. For the law to assert that poor and/or single mothers are, or should be, included within the realm of “normal” and “natural” families, and therefore entitled to  privacy, would require a leap of legal imagination not likely to be undertaken without the safety net of dominant social and cultural concurrence.

The development of privacy doctrine has thus been limited by societal assumptions about intimacy, families, and individuality, and by ideas concerning fairness and just deserts. The question arises, how­ ever, whether privacy, even if it is a concept embedded in social and cultural presuppositions, could be rehabilitated or reworked to include single mother families? There are both ideological and doctrinal barriers to this endeavor. As things now stand, it does not seem likely that an emphasis on privacy will do anything other than further reinforce the ideology of the natural or normal family. In fact, it may be that continued emphasis on privacy as the concept to constitutionally protect certain sorts of intimate behavior will serve to deter the development of other legal principles  that might  help to limit state regulation of poor and single mother families.

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Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship

by Martha Albertson Fineman

‘Cohabitation between unmarried persons has become in­creasingly common during the past two decades. Various levels of emotional commitment are found among cohabitors. Cohabi­tation may be a casual temporary relationship, an experimental stage preceding formal marriage, or an alternative to marriage and the various legal consequences that status carries.

This paper explores the legal system’s adjustment to these changing behavior patterns with the underlying assumption that as incidents of cohabitation increase, cohabitation will eventu­ally be viewed as both legally and morally acceptable. The con­clusion that cohabitation is becoming acceptable does not, in and of itself, reveal anything significant about either cohabita­tion or the process of legal change. Cohabitation may be toler­ated or even approved if it is purely private conduct and does not  conflict  with  wider  public  concerns. As cohabitation  in­creases and becomes more public, however, the tensions caused by incomplete societal changes in attitude toward the behavior are exposed. When cohabitation “goes public,” legal institutions (the legislature, the prosecutors, and the courts) must resolve some of the conflicts which are presented. Each of these institutions operates under different constraints. The legislators deci­sions regarding adaptation of the cohabitation laws are more ex­ posed than those of the district attorneys or courts. The district attorneys and judges can modify the law or eliminate its impact through application in individual cases.

If the legal system is to reflect the increasing public accept­ance of cohabitation, it must progress through three separate but related phases. First, criminal laws must be changed so that cohabitors do not risk direct sanctions from the state. In addition, laws must be developed to protect cohabitors from discrim­inatory or retaliatory conduct by others who disapprove of their choice. Finally, laws should evolve which regulate the relation­ship and define its consequences for the cohabitors themselves.

Historically, cohabitation was considered “deviant” behav­ior (and was criminally sanctioned in most states. Society’s long recognized preference for formal, ceremonial marriage was com­plemented  by the threat of punishment for cohabitation.  Criminal statutes punishing  cohabitation were repealed in   many states after the appearance of the  authoritative recommenda­tions of the American Law Institute in the Model Penal Code and an avalanche of commentary which criticized the use of the criminal law to punish “victimless crimes” or “moral violations.” Some states, however, have resisted attempts at repeal.

This resistance continues although cohabitors have been seeking and receiving from courts and some state legislatures protection from employers, creditors and others who discrimi­nate against them because of their choice of lifestyle. Common law judges have also begun to fashion rules which regulate and define the civil relationship between the cohabitors. A cohabitor may find himself with an obligation to support or to share his property with his partner on much the same terms as if he had married her. In the civil area, doctrinal and statutory treatment of cohabitation has begun to add cohabitation to that category of human relationships which carries certain legal consequences. The shift from the traditional legal position that cohabitation was a choice to be discouraged or punished is difficult to make. Competing societal values and attitudes concerning co­habitation and its place within society are reflected in the legal system’s inconsistent treatment of cohabitation. Some statutes may be changed or new doctrines developed in response to co­habitation, but other statutes and cases will continue to reflect the traditional negative legal judgment. Cohabitation is not yet a legally neutral alternative to marriage.

The first part of this paper is an examination of the resis­tance to repeal of criminal laws punishing cohabitation: a description of how legislators, prosecutors and judges have re­sponded to the increasing incidence of cohabitation in Wiscon­sin, where cohabitation is a crime. The conflict with other social values appears most clearly in the criminal area. An appreciation of the difficult political position of legislators indicates that it may be difficult to make predictions about formal repeal of co­habitation laws. The criminal laws have, however, been effec­tively altered on the prosecutorial level. District attorneys either refuse to prosecute cohabitors, or prosecute only those who are suspected of other illegal conduct.

As the second part of this paper demonstrates, the trends toward acceptance of cohabitation are visible in a variety of situ­ations in the civil law. Civil penalties for those who cohabit, such as loss of custody or reduction in alimony, are now less likely to be assessed. In addition, mutual obligations are beginning to arise from cohabitation relationships. There are also clashes with other values in these areas, but the trends described in the second part of this article point toward an acceptance and recog­nition of the changing behavioral patterns. The changes in the civil area have been fashioned largely by the courts. The judges’ decisions are more shielded from public view than are those of the legislators, and, perhaps it is this fact which allows change to take place more easily.’

Fineman, Martha Albertson, Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship (1990). Florida Law Review, Vol. 42, 1990, Emory Public Law Research Paper, Forthcoming, Available at SSRN:

Implementing Equality: Ideology, Contradiction and Social Change

by Martha Albertson Fineman

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“This Article is an exploration of the tension between “instrumental” and “symbolic” law reform.  It examines this phenomenon in the context of the feminist reform movement to revise the rules governing the economic incidents of divorce in Wisconsin. The tension in this particular reform movement arose from the potentially conflicting goals of result equality (which I will argue would have been “instrumental” reform), and rule equality (which I consider “symbolic” reform). Both of these concepts of equality incorporate and depend upon certain theoretical and factual assumptions about society, the role of women and the function of law. Yet there are important areas where these underlying assumptions, and reforms that might be based on them, diverge from each other. It is my argument that, given the socioeconomic factors that typically disadvantage women in the market while simultaneously favoring their assumption of the major domestic responsibilities, result equality must be the primary focus of any effective reform of the economics of divorce.

Symbolic divorce reform, in the form of rule equality, expresses the more traditional association of equality with sameness of treatment. Rule equality avoids the pitfalls of protective or paternalis­tic rules, which can be used to hurt women as well as to help them. Rule equality assumes that the groups subjected to the rules are fun­damentally the same, a view that is compatible with the highly im­portant symbolic task of defining the appropriate relationship between the sexes.

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