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Robin Lenhardt’s critique—of my book and family law scholarship
more generally—is spot on. In the book I explore the many ways that family law
structures family life, often for the worse, but I do not apply these same
tools to find the layer she identifies, where family law structures race. Her
post is a reminder that when we talk about fundamental social phenomena like
family and race, it is essential to be attentive not only to the constitutive
process but also the intersections when these forces combine.
To take up Lenhardt’s challenge to imagine a
citizenship-enhancing family law, a useful place to start is Maxine Eichner’s book, The Supportive State. Eichner contends that the state should protect and foster a broader array of
goods than simply liberty and equality. She argues that liberal theory should
incorporate caretaking and human development into the conception of the goods
that the state should further and that the state and families have a shared responsibility
to care for children. With this broader conception of liberal theory, Eichner concludes
that the state must “actively support individuals in receiving the caretaking
and conditions for human development necessary for them to become responsible,
self-directing citizens.” (p. 52)
Drawing on this first principle and using Lenhardt’s analytical
tools, we can see the many ways in which the state, acting through family law,
does not further human development for all families and instead shapes inequality
broadly and race particularly. Consider family law’s approach to unmarried,
low-income, African American families.
As I described in an earlier post,
a marital paradigm deeply informs family law, to the distinct disadvantage of
nonmarital families. Family law’s rules, legal institutions, and social norms
make it harder for unmarried parents to develop a co-parenting relationship and
provide their children with the time and attention necessary for child
development. This, in turn, contributes to inequality because an attentive,
responsive parent-child relationship, especially during the first few years of
life, lays the foundation for future learning and achievement.
This problem disproportionately affects African American
families because of the overlap between marital status and race—29% of birthsto white mothers in 2013 were nonmarital as compared with 71% of births to African American mothers. Family law’s continued reliance on marriage is thus a prime example of the interlinked
legal-structural problem Lenhardt describes. Family law as a marriage-centric
institution entrenches inequality, primarily along racial lines.
Family law’s approach to nonmarital families also shapes
race. By placing marriage at the center of the legal regulation of the family,
and yet making that institution a tool of exclusion rather than inclusion in
the ways that Lenhardt explains, family law creates a hierarchy among families
that largely follows racial lines. In other words, family law makes race
salient because we can readily identify some family patterns as African
American and other family patterns as white, even though the state helped
create this pattern by making marriage both a critical dividing line and a site
of oppression and exclusion.
Thinking of family law as broadly as I do in my
book—encompassing choices about neighborhood design and employment rules, among
other structures—opens up avenues to see the links between family law,
inequality, and race in even greater relief. Recent research,
for example, has established a correlation between income mobility and several factors, including racial segregation and suburban sprawl. The policies that cities and
towns adopt about these kinds of factors may way influence the life chances of
children in the area, either furthering or combatting inequality and racial
differences.
Putting Lenhardt and Eichner together leads to a different
approach to structuring families. Eichner teaches us that the state can and
indeed must support families. And Lenhardt teaches us that this must be done in
a way that enhances the citizenship of all families.
What might this look like for unmarried, African American
parents? A first step is a different approach to legal recognition that
downplays the importance of marriage. In a forthcoming article ,
I recommend a co-parent status that would attach at birth and confer legal
rights and responsibilities on both parents. Although I do not explore the
possibility in the article, the co-parental status could be more fluid and
expansive, broadened to recognize other adults such as a grandparent or close family
friend. Perhaps each co-parent could designate one or two adults who would
share responsibility for the child. There are downsides to this approach
because more adults with legal rights may mean more state intervention to
settle disputes among these adults. But this more inclusive, flexible approach
demonstrates that it is possible to think anew about how legal recognition can
nurture healthy development and that this regulation need not be built on
white, middle-class norms.
Additionally, a citizenship-enhancing family law should be
attentive to the broad array of challenges facing families. Returning to the
research on income mobility, family law (broadly understood) should be more
attentive to the particular features of urban design that reinforce racial and
income segregation. By addressing the multitude of factors beyond family
structure that influence child outcomes, family law would be taking a broader
view of family life and could better recognize the multiple ways to further
human development for all families.
As this brief exploration demonstrates, Lenhardt is
absolutely right that it is critical to analyze the many ways family law shapes
both inequality and race. More nuanced approaches are possible, but only if we
first see the problem more clearly.
Clare Huntington is Professor of Law at Fordham Law
School and may be reached at chuntingtonatlaw.fordham.edu.