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I read two books this past week on the intersection of family law, the conservative/liberal political divide, and quality of life in this country. One was the recently-released Red Families v. Blue Families: Legal Polarization and the Creation of Culture, co-authored by Naomi Cahn and June Carbone (New York: Oxford University Press, 2010).  The other was a slightly older, but no less relevent, book by Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law (Boston: Beacon Press, 2008). Reading them in quick succession, I naturally saw connections between the two arguments as well as the relative strengths and weaknesses of each. I initially thought I’d do a joint review, but found I had too much to say (cough cough) … so here is part one, with a follow-up scheduled for next Wednesday.

For part two (Politkoff) click here.

Politkoff, Cahn and Carbone all begin with the same basic premise. That is the demographic fact that, over the past fifty years or so, the way Americans interdependent relationships has changed dramatically. The reasons for this can be attributed to a variety of socioeconomic and cultural factors, but no matter the reasons why it is happening, the end result is that the system of laws and public policies that in the past served to support those relationships are no longer effectively doing the job they were meant to do. 

Both books also come to an essentially liberal-moderate conclusion, with Polikoff trending in a slightly more liberal-radical direction and Cahn/Carbone attempting some sort of “middle” ground. Possibly because I am at heart a radical in my thinking (read: I’m most satisfied with solutions that get at the root of inequality, rather than attempt cosmetic changes to a broken system; I’m skeptical of compromise with folks who refuse to recognize a common humanity), I found Polikoff’s proposals much more compelling than those made by Cahn/Carbone, although I do think both books are worth reading — or at least skimming! — if you are involved on any level with activism or scholarship around the place of family and human relationships under the law.

I’ll begin with Red Families v. Blue Families. Authors Cahn and Carbone, both legal scholars, attempt to describe the reoganization of families structures in terms of the “red state” and “blue state” divide. That is, they connect conservative (red) political values with one set of beliefs and practices related to family formation and liberal (blue) political values with another set of beliefs and practices.  Using demographic statistics (such as number of births to teenage and unwed mothers, divorce rates, contraceptive use and abortion rates), they attempt to make connections between the types of family practices in conservative areas vs. liberal areas and the beliefs held in those areas concerning public policy and family law (i.e. divorce and custody law, access to birth control and abortion, marriage incentives and marriage equality).

The strength of this book is in the way Cahn and Carbone describe the socioeconomic pressures that have effected the rapid change in family-formation patterns. To oversimplify dramatically, the shift from an industrial economy to a social services and knowledge economy has increased the need for human capital (higher education, training, etc.) which the “blue” families have adapted to by delaying marriage and, in particular, child-bearing and rearing until after advanced education and establishing their careers. They “combine public tolerance with private discipline” when it comes to sexual activities, pushing (for example) to destigmatize sexually-active teenagers while ensuring access to contraception and counseling their own children to delay sexual activity. Meanwhile,  “red” families are materially challenged by the changing economy just as their blue counterparts. However, they have responded in moral rather than practical terms, redoubling their efforts to tie sexuality to marriage. This, the authors argue, often leaves them at an educational economic disadvantage (unless the wage-worker husband is in a high enough income bracket to support his family, a situation which is possible for fewer and fewer families nation-wide).

Red Families is at its strongest when showing the disconnect between conservative policy positions concerning issues like marriage, contraception and abortion and the damaging real-life effect of such policies when put into practice. In the chapters on abortion and contraception, for example, the authors show how conservative family policies usually work to disadvantage the economically marginal (teenagers, the poor, non-white families) by making the tools to manage their sexual health and childbearing unaffordable or otherwise inaccessible.  This is nothing new to those of us who follow the work of reproductive justice activists and feminist activists, but nevertheless I’m heartened to see it articulated in the context of a book on public policy. Likewise, the final chapter on “retooling the foundation” of our post-industrial economy to recognize the fact that workers are also family members is a useful starting point for thinking about how we might implement new (public and private) policies to support both types of families as they seek to integrate work and relationship obligations.

Yet ultimately, I found Cahn and Carbone’s argument about the geographic breakdown of family patterns overly simplistic and their solutions problematic.  Here are a few reasons:

1) As someone who grew up in a “red” area of the country (Michigan as a state swings Democrat in national elections, but the West Michigan county where I lived, and many of those around it, swing consistently Republican) I am troubled by the assertion that Americans are organizing themselves geographically along political lines, and that because of this a federated, localized approach to family policy is acceptable. Family law issues often intersect with human and civil rights issues, for example women’s access to reproductive health care and the right of queer couples to the same marriage rights as straight couples. These are basic citizenship rights not rights that should be determined by local norms. Beyond that basic philosophical issue, there are three practical issues with a localized approach:

  • When the approach is local, the most vulnerable will continue to suffer. Why? Because the economically and socially marginal are the least mobile citizens: the poor, the young, those without supportive family and friendship networks. In short, the folks who are already unable to access the resources available under the current system to establish economically secure families. They are the ones who won’t be able to relocate to a more queer-friendly region, won’t be able to cross state lines to secure an abortion or contraception, and will be the least likely to challenge discriminatory practices through the courts or political system.
  • Cahn and Cohen overemphasize regional homogeneity. If basic rights around family formation and support are determined locally, what happens to those who are in the political and social minority in any given region? To be sure, there are “blue” families in even the most crimson areas in this country. Not all of them can, want (or should have to) relocate to more colbolt areas in order to live the family lives of their choosing. This is the de facto situation for many of us now and it is not satisfactory.
  • This is an increasingly mobile population. Our economy increasingly depends on mobility, not to mention that our culture encourages travel and relocation over the course of our lives. If the rules governing family life become more regionalized over time, then the issues already faced by same-sex couples will extend to more and more families: what happens when certain relationships are recognized in one region and then a family moves (say due to a professional or educational opportunity) to a region where their family is no longer recognized or supported?

2) Cahn and Carbone fail to question the assumption that marriage between two adults as the basis for family formation is an ideal that should be encouraged. They see this as a point of common ground between “red” and “blue” families, an premise that I believe to be unhelpful in terms of constructing useful solutions that better the lives of all people, regardless of their desire to enter into marriage relationships as a gateway to family formation. (For more on this idea, see part two of this review.)

3) Following from this preference for marriage, Cahn and Carbone decidedly do not believe that all avenues toward family formation, or types of families formed, are equal. While willing to extend the practice of marriage to adult pairs, regardless of sex or gender, they ignore the needs of many families that do not fit this slightly-tweaked version of the old two-parents-plus-children family ideal. For example

  • Young parents. Following from their preference for “blue family” strategies, Cahn and Carbone are critical of those who choose to marry and have children at young ages. They see nothing wrong with discouraging teenagers and young adults from marrying and forming families. In support of this argument, they cite the statistical likelihood that such “young” marriages will fail and that children born within those families (or to young mothers) are more likely to be economically and educationally disadvantaged.  Alternatively, they could argue for greater social and cultural support for young people who choose to form families and bear children. The fact that they disparage those who do so is ageism and really set my teeth on edge.
  • Non-dyadic family units. Um, where are the poly relationships? The family groups not formed around sexual relationships and/or childrearing? I was really frustrated by the way Cahn and Carbone failed to address the needs of families that don’t fit into this model. I realize that these families are a political hot potato when it comes to seeking compromise across the political divide — poly relationships are routinely marginalized in arguments for gay marriage (how often have you heard “two consenting adults” as a catchphrase?) because, I assume, the left wants to dissassociate from discussions of polygamy. But this is not a valid excuse when we’re talking about the need to recognize the social value of all committed, consensual, mutually-sustaining relationships.
  • Following on from this last point, family formation =/= childrearing.  Belonging, as I do, to a family that will likely not include children, I was particularly aware of the way in which Cahn and Carbone repeatedly used phrases like “family formation” and “starting a family” to mean “having a baby” (either through adoption or birth).  This is an erasure of any family of two or more people that does not include, either by accident or design, providing for children. It’s terminology that’s simple to fix and the fact that the authors chose not to, or didn’t realize the implications of their wording, bothered me.

So what’s the work-around for these problems? Stay tuned for the next installment, where I’ll discuss the far more satisfactory Beyond (Straight and Gay) Marriage, in which author Nancy Polikoff descibes how our legal system could retool family law to accommodate the full range of interdependent relationships we form, decoupling marriage (which would remain a religious and cultural marker of commitment) from legal and economic rights.

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