Thursday, May 6, 2021
Katharine Baker, Equality and Family Autonomy, Forthcoming Univ. of Pa. J of Con. Law
Contemporary family law scholarship and a growing body of doctrine often assume that a functional approach to family law – treating those who have acted like family as family – is the best way to secure equal treatment for people who live in relationships that have not been recognized legally as familial. This article argues that these functional claims, made in the name of equality, inevitably disrupt the very protection they are asking for because they undermine principles of family privacy and autonomy. In unpacking the benefits of a robust family autonomy doctrine – benefits that are crucially important to communities of color and LGBTQ communities - this article challenges not only the functional turn in family law, but feminist scholarship that has been critical of family autonomy and privacy doctrine. Building on the consistent defense of privacy that emanates from women scholars of color, this article demonstrates how functional analyses demand interference and judgement that is likely to tear at the fabric of minority communities. Functional approaches vest judges with the power to define who a family is and what it should look like. This article shows how when judges do this in the parental area, they reify dyadic, heteronormative, usually white middle class notions of parenthood. When they do it in the context of cohabitation, they reify gender roles and a morality that assumes the ubiquity of long-term conjugal relationships. Thus, the functional turn, hailed as progressive, actually re-inscribes traditional understandings of family relationships.