Wednesday, May 23, 2012
Allison Anna Tait (Gender Equity and Policy Postdoctoral Associate, Yale Women Faculty Forum) has posted A Tale of Three Families: Historical Households, Earned Belonging, and Natural Connections, 63 Hastings Law Journal (2012), on SSRN. Here is the abstract:
Cases targeting family regulation in the 1970s turned, for the first time, on three contrasting and sometimes competing theories of the family – historical households, earned belonging, and natural connections. This Article introduces and defines these three theories and offers a descriptive account of how the theories were used by litigants and the Supreme Court alike to measure discrimination, evaluate the rights of individual family members and, often, increase household equality. The theory of historical households, developed with great success by Ruth Bader Ginsburg, invoked a Blackstonian family defined by gender hierarchy and the law of coverture, and posited that this model was in need of legal reordering. Earned belonging, offered by Ginsburg as a replacement for historical households, presented a new and more democratic family theory centered on ideas of conduct-based outcomes. The earned belonging theory proposed that an individual could earn her full place in the family through positive conduct and performance. The theory of natural connections, on the contrary, promoted received wisdom about family ordering based on biologic “truths” about sex-based differences. Courts operating according to natural connections theory privileged maternal rights, rejected many paternal claims, and affirmed laws promoting the nuclear, or natural, family. The work of this Article is to present a new and synthetic reading of cases about wives, illegitimate children, and unwed fathers that follows these three logics, revealing how they weave together and why earned belonging provides the strongest support for Ginsburg’s original vision of an equalized household.