Friday, October 31, 2014

Citizenship-Enhancing Family Law for All

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

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  

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