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  Criminal statutes punishing  cohabitation were repealed in   many states after the appearance of the  authoritative recommenda­tions of the American Law Institute in the Model Penal Code and an avalanche of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:

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