Wednesday, May 23, 2007
Linda C. McClain (Hofstra) has posted Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law on SSRN. Here is the abstract:
This Article revisits a significant idea at the core of contemporary debates in family law: the channelling function of family law. This idea is that a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family law scholar Carl Schneider helpfully invited attention to this familiar idea in an essay published fifteen years ago. Challenges to the conventional sequence (expressed in the childhood rhyme) of love-marriage-baby carriage posed by changing social practices, rights claims made by various groups within society that lead to legislative change and judicial rulings, by technological developments in the area of reproduction, and by changes in family law toward a more functional definition of family changes provide a valuable opportunity to revisit Schneider's notion of the channelling function of family law and, in particular, how it relates to other important functions of family law. As this sequence of love-marriage-baby carriage is being altered and challenged in perhaps unprecedented ways, the question arises whether the core of ideas that Schneider identifies with the social institutions of marriage and parenthood still retains force, or whether the core is being redefined. At the heart of many contemporary debates about the state of the family — and family law — is the question of how to assess challenges to this expected sequence of love, marriage, and the baby carriage. The debate over same-sex marriage visibly raises this issue, as does debate over the question, Who is a legal parent?
The Article begins with several examples of current social practices that scramble the sequence of love, marriage, and baby carriage, and considers how such practices both recognize and resist the conventional sequence. It then illustrates how the notion of marriage and parenthood as social institutions and the channelling function feature in several recent judicial opinions addressing challenges to state marriage laws brought by same-sex couples or defining the boundaries of legal parenthood. It points out parallels between these judicial opinions and arguments made in public debates over marriage about the channelling function and the role of marriage in ordering — or managing — heterosexuality. It also highlights how the various functions of family law are in evident tension in some of these opinions. The Article concludes with several reflections about the continuing relevance of the concept of the channelling function in light of challenges to the conventional sequence of love, marriage, and the baby carriage.