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"Fineman's vocabulary—inevitable and

derivative dependency, caretaking and the
mother-child metaphor—is powerful and
often empowering. I suspect many will
find, as I did, that Fineman's framework
helps them make sense of their lives."
•—Law and Social Inquiry

In this paradigm-shifting and controversial book, renowned

legal theorist and author Martha Fineman documents how
American policymakers' overemphasis on the values of
self-sufficiency and autonomy has negatively affected
government policy relating to the care of the young, the
elderly, and the infirm.

Those charged with administering U.S. social policy have long

considered the marital family household as appropriately
both separate and self-sufficient, at the cost of the well-being
of many families and their members, particularly children.
Vigorously taking issue with this approach, Fineman insists
that because each of us is "inevitably dependent" at
various stages in our lives, it makes much more sense for us
to recognize from the outset that society has a vital role in
providing assistance. Indeed, any individual carer's necessary
reliance on outside resources makes this essential. Presenting
her argument with conviction and eloquence, Fineman calls
for the acceptance of collective public responsibility for'
dependency, as well as a restructuring of the workplace
consistent with a new understanding of the boundaries
between private and public spheres. The Autonomy Myth
demands a more responsive and active state to ensure ,
*

that the burdens associated with dependency are more'

equitably distributed.
 \

'H

f
V
The Autonomy Myth
 \

\ '

■r

\
A Theory of Dependency

Martha Albertson Fineman

THE NEW PRESS

NEW YORK
LONDON
© 2004 by Martha Albertson Fineman
All rights reserved.
No part of this book may be reproduced, in any form,
without written permission from the publisher.

Published in the United States by The New Press, New York, 2004
Distributed by W. W. Norton & Company, Inc., New York

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Fineman, Martha.
The autonomy myth : a theory of dependency /
Martha Albertson Fineman.
p. cm.
Includes bibliographical references and index.
ISBN 1-56584-760-1 (he)
1. United States—Social policy—1993- 2. Family policy—
United States. 3. Autonomy (Philosophy)—United States.
4. Social justice—United States. 5. Equality—United States.
I. Title.

HN59.2.F56 2004
361.610973 dc2i 2003051302

The New Press was established in 199° as a not-for-profit alternative to the

large, commercial publishing houses currendy dominating the book
publishing industry. The New Press operates in the public interest rather than
for private gain, and is committed to publishing, in innovative ways, works of
educational, cultural, and community value that are often deemed
insufficiently profitable.

The New Press, 38 Greene Street, 4th floor, New York, NY 10013
www.thenewpress.com

In the United Kingdom: 6 Salem Road, London W2 4BU

Composition by dix!

Printed in the United States of America

*

10 987654321
 A

Acknowledgments ix
Preface xi
Introduction xiii

PART ONE
Foundational Myths: Autonomy, Dependency,

and Social Debt 1

A Dystopian Fantasy 3

Chapter One

Exploring Foundational Myths 7

I. Introduction 3
II. The Relationship Between the “Rule of Law”
and Foundational Myths 17
III. Equality or Autonomy—Shifting Foundations 25

Chapter Two
Dependency and Social Debt: Cracking the
Foundational Myths 31
I. Introduction 31
II. The Rhetoric of Dependence and Independence 33
III. Dependency and Choice 40
IV The Dependency Deficit—A Society in Default 44
V The Rhetoric of Subsidy and Self-Sufficiency 49
VI. Conclusion 33
 VI CONTENTS
«

PART TWO
Institutionalizing Autonomy 55
Existing Societal Arrangements 57

Chapter Three
The Family in the Rhetoric of Civil Society—
Privileging Marriage 7\
I. Introduction 7\
II. Defining the Problem—The Civil Societarian
Perspective 7g
III. Family Function and Family Form—
Collapsing the Distinction 79
IV Regulating the Family—Moral Justification and
Beyond gj
V Poverty and Well-Being gg

Chapter Four
Why Marriage? gg
I. Introduction gg
II. The Many Meanings of Marriage 97
III. The I .aw of Marriage ] Qg
IV Defining the Family j 1q
V Marriage in Context \ jg
VI. Conclusion j 1g

Chapter Five
The Future of Marriage \gj
I. Introduction 121
II. “Man and Wife”—From Protected to Partnered 124
III. Backlash * * 1 2q
IV Rethinking the Relationship of State to Marriage—
A Thought Experiment '' 133
V Outside of Contract > 13g
VI. Conclusion ' 1
 CONTENTS VII
r

PART THREE
Feminist Critiques of the Family 143
Equality and Family 145

Chapter Six
Feminism and the Family: Implementing Equality,
Achieving Autonomy 156
I. Introduction 156
II. The Wake of Feminist Family Law Reform 166
III. The Future of Family Reform 175
IV Conclusion 180

Chapter Seven
Mothering in a Gender-Neutral World 182
I. Introduction 182
II. Valuing Care 188
III. Fatherhood 195
IV Conclusion 202

PART FOUR
The Autonomous Individual and the

Autonomous Family Within the

Social Contract 205

Chapter Eight
Recasting the Social Contract 218
I. The Metaphoric Social Contract:
Ordering the Public, Defining the Private 218
II. The Social Contract—The (Mis)use of the
Private Family 228
III. Taking Change into Account: Rethinking the
Social Contract 236
IV Social Contract in Action 237
V Conclusion 239
VIII CONTENTS

Chapter Nine
The Tentative Workplace 241
I. Introduction 241
II. The Tenuous Workplace 244
III. Work and Social Goods 249
IV Unions, Equity, and Market Distribution of
Social Goods 252
V Wealth and Entitlement 255
VI. Right to Work/Equality of Opportunity 259

Chapter Ten
The Tenable State 263
I. Structuring State and Society 263
II. Ideology and Politics 264
III. Posing the Philosophy for an Active State 269
IV The Politics of Substantive Equality 275
V Historical Roots for a More Substantive Equality 278
VI. International Norms 280
VII. Forging a More Just Social Contract 284

Postscript
What Place for Family Privacy? 292
I. Privacies 295
II. Limitations of Privacy 299
III. Revisioning Privacy 300
IV Autonomy for Family Functioning 302
V Conclusion 307

Notes ' > • 309

Index 371

v
\
\
 Acknowledgments

AV.
±. s a preliminary matter, I want to thank all the people (too
numerous to mention) who questioned my ideas about depen¬
dency and encouraged me to expand them after the publication
of The Neutered Mother, the Sexual Family, and Other Twentieth Century
Tragedies (Routledge, 1995). Their interest and probing provided
the initial incentive to develop a theory of dependency and col¬
lective responsibility.
The wonderful students who worked on this project as it was
transformed from miscellaneous articles and drafts into a
“proper book” deserve special thanks: Sarah Brady, Homa
Dashtaki, Victoria Hadfield, Joanne Roman, and, in its very
final (and very hectic) stage, Luke Zachary Fenchel. Many peo¬
ple commented on early drafts of this book. In this regard 1 am
particularly indebted to: Terence Dougherty, Jack Jackson,
Douglas A. Kysar, Risa Lieberwitz, Benjamin Meier, Adam
Romero, and Teemu Ruskola.
 t

\
 Preface

T_A.his book was begun before, but completed after, September

11, 2001. The tragic events of that day have changed much in the
United States of America. Particularly disheartening has been
the deviation in the direction of political rhetoric and attention
to domestic concerns. Prior to September n, massive tax cuts
that benefit the wealthiest among us ate into the budget sur¬
pluses of the 1990s. Criticism about such measures and the ad¬
ministration that pushed them forward was mounting in the
summer of 2001. In particular, there was growing concern
about looming and ballooning deficit projections. Democrats
were beginning to argue that the wealth the surpluses repre¬
sented could have and should have been directed toward ad¬
dressing some of the increasing inequality in opportunity in the
United States.
Post-September 11, the political environment is consumed
with the need for “homeland security” and overtaken by alloca¬
tions for military spending that supported a “preemptive” war
XII PREFACE

with which many in the United States and most of the world dis¬
agreed. The debates about the topics of concern in this book—
need and dependency, families and state, welfare and the
dimensions of the social contract—have been largely muted,
victims of a war mentality that defines the threats to the United
States as external, terroristic, and violent. But these problems
remain. Unaddressed, they will continue to undermine the
health and general well-being of the United States, even as they
are displaced in our national consciousness by more dramatic
concerns.
The issues surrounding dependency remain constant, a part
of everyday reality for many who struggle to survive in America
and in the world. Dependency has not disappeared; it may even
have been exacerbated by the “war” against terrorism that we
now wage. Publication of this book at this time is undertaken
with that realization in mind.

M.L.A.F.
Ithaca, New York
 Introduction

T-L his book examines some of the core myths of American so¬
ciety as they are interwoven through political rhetoric and pop¬
ular ideology at the beginning of the twenty-first century. One
of its major premises is that our particular way of thinking
about the desirability and attainability of autonomy for individ¬
uals and families has seriously limited the ways in which we
think about equality. Ideas about individual autonomy and self-
sufficiency create this limitation, as do corresponding institu¬
tional arrangements that support privatization and the market
as an absolute good and governmental action and regulation as
presumptively bad. One consequence of this has been the con¬
ceptual separation of the family from other societal institutions
and the assignment to it of primary responsibility for the de¬
pendency of those deemed not autonomous and independent.
Contrary to this trend, I argue for the adoption of an inter-
generational and cross-institutional notion of collective respon
sibility for dependency. In doing so, I examine the rhetorical and
xrv INTRODUCTION

ideological underpinnings of dominant American societal con¬

structs, including the ways in which these concepts are played
out in existing institutional relationships. My focus is primarily,
though not exclusively, on the law and on legal constructions of
society and its institutions.
Law is one important manifestation of the state. In this book
I conceive of the state as a complex of coercive legal and institu¬
tional relationships that situate individuals, as well as complex
societal organizations such as the family, in relation to one an¬
other. In this regard, I look at theories that delineate the rela¬
tionship between state and individual, as well as those that posit
(or assume) an appropriate role for the state in regard to the reg¬
ulation of concurrent societal institutions and arrangements,
such as the market and the family.
Rejection of the idea that there is some collective responsibil¬
ity for dependency is not surprising in a society such as ours.
American political ideology offers an iconic construct of the au¬
tonomous individual and trusts the abstraction of an efficiency-
seeking market as an ordering mechanism.1 We have an historic
and highly romanticized affair with the ideals of the private and
the individual, as contrasted with the public and the collective,
as the appropriate units of focus in determining social good.
After all, the very concept of the private defines the domain
of the individual—an unregulated space where individual free¬
dom reigns and in which each would-be king can construct his
castle. If a child is part of that landscape, it is deemed a private
matter, not the occasion for public subsidy or support.2 Children
are considered to be like any otherdteip of consumption, a mat¬
ter of individual preference and individual responsibility.
The idea that the private is generally preferable as a means of
responding to need and dependency has become more and
more firmly enmeshed with our sense of-social justice during the
past few decades—informing the'unwritten “social contract”
that guides and gauges the relationship pnong individuals, soci-
 I N T RaO D U C T I O N XV
*■

etal institutions, and the state. As it evolves, what may be re¬

ferred to as a distinctively American version of the social con¬
tract seems to be expanding along the private axis.
Privatization is increasingly seen as the solution to compli¬
cated social problems reflecting persistent inequality and
poverty.3 The rhetoric surrounding many current policy debates
urges previously public concerns to be transferred to the magic
realm of the private solution. From welfare reform to the con¬
struction of ideal educational or prison systems, the assertion is
that the private market can better address historic public issues
than can the public government.
My argument in this book is a mirror image of such argu¬
ments about the perceived advantages of the private sector’s
taking over tasks historically located within the public sphere. I
am arguing for the assertion of collective or public responsibility
for dependency—a status or condition that historically has been
deemed appropriately assigned to the private sphere.
The theory of dependency I set forth develops a claim of
“right” or entitlement to support and accommodation from the
state and its institutions on the part of caretakers—those who
care for dependents. Their labor should be treated as equally
productive even if unwaged, and should be measured by its so¬
cietal value, not by economic or market indicators. The fact that
dependency work has been un- or undervalued in the market is
an argument Jot governmental intervention and restructuring to
mandate adjustment and market accommodation, as well as
more direct reparations.

part one: foundational myths: autonomy, dependency,

AND SOCIAL DEBT

Chapter one develops the idea of foundational American

myths, particularly political myths. It looks at the myth of au-
XVI INTRODUCTION

tonomy in the United States, with its attendant ideals of inde¬

pendence and self-sufficiency. I am particularly interested in the
role the autonomy myth plays in political and popular rhetoric,
as well as in national ideology. In these discourses, autonomy is
understood in very narrow terms, linked to economic self-
sufficiency and a sense of separation from others in society. I dis¬
cuss how this conception of autonomy places it in conflict with a
full, substantive sense of equality—equality that would guaran¬
tee more than mere sameness of treatment or opportunity and
access.
A discussion of autonomy as being in opposition to a fuller
sense of equality is important. The rhetorical and ideological
rigidity with which contemporary policy debates have been con¬
ducted makes it particularly difficult to assert the claim of any
collective responsibility to assure at least a minimal standard of
economic and material equality for all citizens. This difficulty is
illustrated most clearly (though not exclusively or even primar¬
ily) in the struggle over welfare payments to poor mothers and
children. In those debates, the core components of America’s
founding myths, such as the sacredness of autonomy and indi¬
vidual responsibility, have been reflected in simplistic notions of
individual independence and self-sufficiency. These notions
have become mantras for many, ossified and used as substitutes
for analysis, eclipsing rather than illuminating debate.
Chapter two proceeds from the assumption that we must
complicate the way we think about some of the basic concepts
that have been effectively employed in recent political maneu¬
vers to undermine the comparatively ^minimal guarantee of a
social safety net for the poor and dependent in the United
States. In this regard, I challenge the rhetoric that creates di¬
chotomous pairs of desirable versus stigmatized positions, such
as independence/dependence and(self-sufficiency/subsidy.
In place of such simplistic and inaccurate characterizations,
 INTRODUCTION XVII
r

Chapter two presents a theory that understands dependency as

both universal and inevitable—all of us were dependent as chil¬
dren, and many of us will become dependent as we age. These
characteristics of universality and inevitability support an argu¬
ment for the reallocation of responsibility for dependency
across societal institutions, away from primary reliance on the
family. Such a reallocation is essential if equality is to be realized
because caretaking carries with it a derivative form of depen¬
dency—the need for resources on the part of the caretaker in
order to perform her care work. As developed in chapter two, if
those resources must primarily come from the family, gender in¬
equality will be hard to undo. Dependency must not be struc¬
tured as in competition and incompatible with the ideal of
equality—it is merely one of the human and societal circum¬
stances that must be addressed as part of achieving equality.
This theory of universal dependence encapsulates the notion
that subsidy is also universal—we all live subsidized lives as
well as the idea that subsidies come in many different forms. Yet,
not all subsidies are labeled as such. Specifically, I argue that
while the state provides what we think of as subsidies, such as
those supplied by the tax code, caretakers provide a subsidy to
the larger society and its institutions. Far from being indepen¬
dent, the state and the market institutions that it protects and
fosters are dependent on the caretaking labor that reproduces
society and populates its institutions.
Caretaking thus creates a “social debt,” a debt that must be
paid according to principles of equality that demand that those
receiving social benefits also share the costs when they are able.
Far from exemplifying equal responsibility for dependency,
however, our market institutions are “free-riders,” appropriat¬
ing the labor of the caretaker for their own purposes.
XVIII INTRODUCTION

PART TWO: INSTITUTIONALIZING AUTONOMY-THE MARITAL

FAMILY AS SOCIAL POLICY AND POLITICAL IDEOLOGY

The introduction to part two sets out the traditional “separate

spheres” understanding of society within legal discourse in
which the family is positioned as a unique and private arena. I
argue that this is an incorrect and unsustainable conception.
The family is contained within the larger society, and its con¬
tours are defined as an institution by law. Far from being sepa¬
rate and private, the family interacts with and is acted upon by
other societal institutions. I suggest the relationship is not one of
separation, but of symbiosis. It is very important to understand
the roles assigned to the family in society—roles that otherwise
might have to be played by other institutions, such as the market
or the state.
Chapter three examines the family in the rhetoric of those
policy proponents who are concerned with the future of civil so¬
ciety in the United States. This chapter presents a case study in
the treatment of family matters. Marriage is considered central
to the concept of family, and family is perceived of as the foun¬
dation of society. Civil societarians argue for policies that pro¬
mote marriage, a position that is increasingly popular among
diverse sets of groups. I examine these arguments and their
bases, concluding that the most telling aspect of these theories is
what is left out—the growing inequality in access to resources
that has characterized American society over the past several
decades. Blaming the plight of children on their parents’ marital
status without seriously considering how governmental and em¬
ployer actions (or lack thereof) contribute to and compound that
plight is just bad policy analysis.
Chapters four and five look at marriage as a societal institu¬
tion, first in chapter four by looking af the history of marriage
and then in chapter five by asking what marriage actually means
 I N T R O'D U G T I O N XIX

as an institution, both to individuals and to society. There are

many reasons that individuals may marry, and historically the
state has also had a catalogue of justifications for its regulation
and for the privileging of the institution. I argue that in a diverse
and secular society, it is impermissible for the state to privilege
one form of sexual affiliation over others, and thus to make mar¬
riage the core connection in the institution of the family.
These chapters continue to explore the significance of the
state’s imposition of responsibility onto the family, as initially
developed in chapter two. If we want our families to shoulder
responsibility for dependency then we must look direcdy at that
task and build policy to foster and facilitate caretaking. Cer¬
tainly, we should not be creating policy directed to and orga¬
nized around marriage. Census figures and other statistics
clearly indicate that both sex and reproduction are no longer
confined to marriage. People are forming all sorts of different
types of intimate entities. Why create policies based on a seri¬
ously weakened family affiliation—the marital couple—when it
is really caretaking that we as a society should want to ensure?
Society has a responsibility to adjust to these changing patterns
of behavior by guaranteeing that the emerging family forms are
supported in performing the tasks we would have them assume.

PART THREE: EQUALITY AND FAMILY-AUTONOMY WITHIN

THE FAMILY AND THE ASPIRATION TOWARD EQUALITY

Chapters six and seven consider existing institutional arrange¬

ments, presenting feminist critiques of the family, as well as a cri¬
tique of feminists who either ignore or minimize the role of the
family in their theorizing. Feminists have paid particular atten¬
tion to the institution of marriage and the roles of husband and
wife, but they typically assume that the family can easily be
XX INTRODUCTION

transformed so as to achieve equality within it. Family issues

tend to be analyzed as oppressive and in need of reform, so that
women are able to act as equals in the workplace and other pub¬
lic aspects of life. The family reforms have been successful, at
least on a rhetorical level, with the law now gender-neutral, and
old assumptions, such as a maternal preference for custody of
small children at divorce, impermissible.
The problem with many feminist analyses is that they have
failed to realize the degree to which the possibility for the trans¬
formation of the family is dependent on corresponding radical
and massive transformations of the workplace and accompany¬
ing ideological shifts that validate assumption of responsibility
by the state in an unstigmatized manner. Women’s aspirations
for themselves have indeed been transformed, but these aspira¬
tions cannot be realized in the context of institutions that con¬
tinue to assume that all workers are unencumbered individuals
with no caretaking responsibilities and that the state is not re¬
sponsible for regulation and amelioration of the excesses of the
market and its institutions.
These chapters argue that one problem with the privatization
of dependency is the continuing unequal and gendered division
of family labor, which burdens women more than men. Within
the family there is a delegation of responsibility for dependency;
caretaking has traditionally been and largely remains gendered
work, assigned to those in the family roles of wife, mother,
grandmother, sister, daughter, and daughter-in-law.
Of particular relevance to the debates about dependency are
feminist attempts to show how 'the .dichotomous concepts of
public and private, which are reflected in the division of society
into separate spheres, have significant political implications.
These concepts represent more than mere labels; they have
tremendous political and practical implications. They interact
as ideological channels for the allocation of societal resources,
including the resources of power and authority.
 INTRODUCTION XXI
P

PART four: the autonomous individual and

THE AUTONOMOUS FAMILY WITHIN THE SOCIAL CONTRACT

Designation of some institutions in legal discourse as “public,”

while others are considered “private,” has implications for the
manner and method of state regulation and the perceived legit¬
imacy of collective subsidy. These classifications also shape the
contrasting norms of interaction and expectation within and
between societal institutions that we designate as being part of
either sphere. I discuss this interaction in chapter eight through
the lens of social contract theory.
The social “contract” is a metaphor for consent of the gov¬
erned—the idea that people have consented to the current
arrangement of the government and its regulation of and rela¬
tionship to other societal institutions. This fiction of a social
contract implies that the current situation is fair, because au¬
tonomous individual members of society implicidy agree to it
through their participation in that society.
Using the concept of social contract allows me to introduce
the idea of social change and the importance of background
conditions to our assumptions about the status quo. I argue that
the basic institutions of society—family, market, and state-
have changed to such a degree that we can no longer believe in
either the fairness or the successfulness of existing arrangements
in which the family is designated as the primary repository for
dependency.
Chapter nine links the changes already discussed in regard to
the family to the transformations in the workplace that have taken
place over the past several decades. This chapter describes the
much more tenuous employment relationship that now exists in
the United States. The degree of change in family and work calls
into question the historic terms of the social contract and man¬
dates that it be revised, with the state and the market assigned
some share of responsibility for dependency and caretaking.
XXII INTRODUCTION

CONCLUSION AND POSTSCRIPT: REVITALIZING THE STATE:

AGAINST PRIVATIZATION; FOR PRIVACY

Chapter ten serves as the conclusion for the book, making the
argument that there is a need for a responsive state, a state with
which to address the dilemmas presented by the changes in
other institutions in regard to dependency. In this chapter, I ad¬
dress the state in its relation to societal institutions as well as its
relation to the individual.
Defining the appropriate relationship among the state, socie¬
tal institutions, and individual citizens is important for several
reasons. In the first instance, American foundational documents
such as the Constitution are understood as conferring limits on
state authority, serving to establish a space for citizen freedom
and autonomy. This dimension of the relationship of the state to
the individual is of particular relevance in today’s political cli¬
mate, in which many are suspicious of governmental interven¬
tion into private matters.
The rhetoric of economics, which is increasingly the lan¬
guage of government and policy-making, warns us that society
and its market institutions operate efficiently only when unregu¬
lated individuals are free to act to maximize their interests.
Competition produces the best results for all, as the inefficient,
and therefore “inferior,” are swept away in a free market free-
for-all.
But there are also affirmative aspects to the historic relation¬
ship between state and individual—protections offered by the
state against arbitrary actions on'the«part of governments and
fellow citizens in some contexts. Theories about law and justice
compete with “scientific” economic concepts in an effort to es¬
tablish guidelines for assessing which formal governmental ac¬
tions affecting individual behavior fnay be condemned as
inappropriate intervention, as contrasted with necessary regula-
 INTRODUCTION XXIII

tion, and which may be tolerated as providing a necessary cor¬

rective to a sometimes harsh, unfettered free market.
Unfortunately, the political and governmental institutions
that should be facilitating and encouraging debate and recon¬
sideration have been stalled in partisan and polarizing rhetoric.
The methods and tactics they employ are actually impeding un¬
derstanding and exploration. A new understanding of auton¬
omy would enable us to appropriately and fairly assign
responsibility for dependency in a way that promotes substan¬
tive equality.
However, it is not enough for the responsiveness of the state to
come only in the form of policy directives and regulatory mea¬
sures. The state must also assume responsibility for the creation
of structures where truly democratic debate and deliberation
can occur. An important concern when articulating the idea of
a collective responsibility for dependency is the fear that the gov¬
ernment may become too far-reaching in its ability to impose
the collective will over the rights of individuals—the prospect of
collective control. Collective responsibility for dependency
should not concede the individual’s right to control intimate de¬
cisions, such as whether and when to reproduce, or how to form
one’s family. The postscript of this book develops the idea of en¬
tity or family privacy. Family privacy currently works to shield
individuals within the marital family from governmental super¬
vision and regulation absent abusive or neglectful conduct. I
argue for a new version of family privacy that would attach to
the caretaker/dependent unit, free from any dictates as to fam¬
ily form, and based instead on the caretaking function.
Pursuant to the goal of more equitably distributing the re¬
sponsibility for dependency across societal institutions, this post¬
script supports the revisioning of the family undertaken in this
book—a revisioning in which the individual family would no
longer be viewed as the primary repository for dependency. The
XXIV INTRODUCTION

effort and resources of the family would be supplemented by

those of other societal institutions, which would also assume
some of the responsibility for shouldering the burdens depen¬
dency entails. The critical question for policymakers and politi¬
cians would then center not on how to eliminate dependency (a
futile objective), but on how to order society so that dependency
needs are met and satisfied in a manner that is both “efficient,”
offering, in the economist’s sense of that term, the greatest ben¬
efit and the least detriment to the largest group of persons, and
“just,” meaning that social costs and benefits are distributed
with reference to individual and institutional actions and capa¬
bilities.

\
The Autonomy Myth
I

» 4

\
 Part One

Foundational Myths:
Autonomy, Dependency,
and Social Debt
 «

1
 A Dystopian Fantasy

imagine for a moment what changes would have to be made

to our society in the United States in order to really foster our
self-proclaimed national ideals of autonomy, independence,
and self-sufficiency. This exercise is intended to focus attention
not on those subsidies received by “the other” the welfare
mother or the homeless addict—but on those, perhaps more
subtle, advantages conferred on the rest of us. I contend that if
we seriously want a world in which each individual is assumed to
stand alone, to rise or fall on her or his individual merit, and to
be beholden to no one for her or his success, we must shape our
policies so as to facilitate that model of society. As it stands now,
we give lip service to these ideals in a society in which policy and
law protect and perpetuate existing and historic inequality, a na¬
tion where some individuals are subsidized and supported in
their “independence,” while others are left mired in poverty or
burdened by responsibilities not equitably shared.
For example, a society that imposed the ideals of self-
 THE AUTONOMY MYTH
4

sufficiency and independence on all its citizens would certainly

institute close to a 100 percent inheritance tax on all large es¬
tates. Otherwise, the beneficiaries would be tempted to forgo
work and live off their unearned windfalls, exhibiting neither in¬
dependence nor self-sufficiency.1 It seems obvious that inherited
wealth carries with it the potential to corrupt individual initia¬
tive. Not only do we risk putting into place a system of disincen¬
tive, by allowing inheritance of large estates we also distort the
very meaning of meritocracy, making success a transferable
commodity rather than the result of individual accomplish¬
ment. People should not be deprived of the opportunity to rise
above the mediocre masses, demonstrating their own inherent
merit and worth, simply because they are burdened by the
wealth of their fathers. We should provide an equal opportunity
for everybody to live the American Dream, pulling themselves
up by their own bootstraps. To do this, we must ensure that the
laces are relatively equal in length and strength.
Of course, inherited wealth is not the only distorting factor
that interferes with individual independence and the realization
of a true meritocracy. There are also existing unequal economic
and social advantages, and it is unlikely that they will ever be to¬
tally eradicated within our capitalist system. I struggled with
how to address this fact and concluded that a lottery system
would be the most appropriate and just way to distribute social
goods. This is not the same thing as imagining a society from be¬
hind a “veil of ignorance,” as does philosopher John Rawls,
whose work is discussed in the introduction to part four. Rawls’s
veil is supposed to prevent the searcher for justice from knowing
what characteristics she or he as a single rights-claiming individ¬
ual would possess, thus facilitating the creation and acceptance
of a system in which justice is done abstracdy for all individuals
without regard to background ai>d status. I think it is important,
however, for a social theorist to direcdy confront the reality of
 A DYSTOPf'AN FANTASY 5
sr

privilege, which is conferred by social contexts. The reality of

inequality mandates the rotation of individuals into existing,
known, and accepted structural disadvantages in order to more
equitably distribute them.
A lottery would not eliminate differences in social conditions,
but certain advantages and disadvantages would be allocated by
chance, rather than by accident of birth. Although this might
eventually ensure a much more level playing field, I am willing,
for purposes of this exercise, to concede that true or pure social
equality is not attainable. If that is so, and if we believe that each
individual can demonstrate merit and ability independent of
the burdens presented by social and economic contexts, we can
at least democratize or randomize the process whereby benefits
and burdens are distributed. Therefore, if we wanted to put
each individual to the test, we might at birth assign each child a
Social Security number, along with a list of professions they
might legitimately pursue, appropriately grouped into cate¬
gories such as “service worker” or “professional.” We could also
assign the schools the child would be permitted to attend—if
there were too many assigned to an institution, admission would
also be by lottery. If an individual were not inclined to be satis¬
fied with her or his educational or job allotment later in life, she
or he would have to find a willing person with whom to bargain
or trade in order to alter the luck of the draw, perhaps leading to
a “free market” for careers and educational advantages. To fur¬
ther equalize contexts, perhaps each child (and her or his par¬
ents, should they want to stay with the child) should be
compelled to spend some significant amount of time in a num¬
ber of different neighborhoods while growing up; two or three
years in wealthy Marin County, California, would be balanced
by equivalent time in a poverty-stricken neighborhood in New
York City or rural Alabama.
The point of this exercise is not to suggest seriously that this is
6 THE AUTONOMY MYTH
«

what we should do, but to have us think about how much con¬
text does matter for all of us. We do not begin our lives in equal
circumstances. We begin in unequal ones. Society’s winners and
losers become so in some large part because of benefits and
privileges or disadvantages and burdens conferred by family po¬
sition in a society with extreme and unequal distribution of so¬
cial and economic goods. In such a society, the approach to a
resolution to this type of inequality is not found in simplistic and
hypothetical prescriptions or ideological placebos of independ¬
ence, autonomy, and self-sufficiency.
 Chapter One

Exploring Foundational Myths

A
Ji litany of terms accompanies our approach in the
United States to policy-making regarding family and poverty.
These terms have mythic dimensions. As defined in The New
Webster’s Encyclopedic Dictionary of the English Language, three con¬
cepts are particularly relevant to this book:
Autonomy: i) independence or freedom, as of the will or
one’s actions. 2) the condition of being autonomous; self-
government or the right of self-government: independence.
Independence: 1) not influenced or controlled by other;
thinking or acting for oneself. 2) not depending or contingent
upon something else. 3) not relying on another for aid or sup¬
port. 4) refusing to be under obligation to others. 5) possessing a
competence: financially independent. . .
Self-sufficiency: 1) able to , supply one’s . . . own needs
without external assistance. 2) having extreme confidence in
one’s own resources or powers.
These concepts are strung together, representing comple-
8 THE AUTONOMY MYTH

mentary ways to think about the position or power of individu¬

als and institutions. They are often grouped together in an at¬
tempt to present a picture of someone or something that has
autonomy (freedom), which is demonstrated by independence
(self-determination or reliance) and results in self-sufficiency (fi¬
nancial or material sufficiency). Their antonyms, particularly
dependence and subsidy, are highly stigmatized terms as applied
to individuals and institutions in American society.

I. INTRODUCTION

At the beginning of the twenty-first century we find an Ameri¬

can society that, at least in its political rhetoric and imagination,
is seriously incapacitated in dealing with some of the most im¬
portant social welfare problems facing its citizens today. We live
in the richest country in the history of the world, yet at least one
out of every five children lives in poverty.2 The elderly and dis¬
abled fare little better. Over io percent of Americans aged sixty-
five and older are classified as poor, as are one-third of adults
with disabilities.3 Most working-age adults with serious disabili¬
ties face a dilemma, in that if they find an employer who will
provide accommodation for their disability they will lose the
necessary health benefits they receive under Social Security.
Over thirty million Americans lack health insurance.4
The list of relative and absolute deprivation could go on and
on, but rather than setting out a catalogue of existing inequities,
I want to explore the ways in Which we have become incapaci¬
tated conceptually and politically by looking at the rhetoric and
ideology of contemporary American politics. An understanding
of equality as a substantive promise to our least advantaged citi¬
zens has been sacrificed to a sfiallow sense of autonomy. Our
incapacity to fashion solutions leading to a more just and
equal society is reflected in our political discourse. The very lan-
 EXPLORING FOU N->D ATIONAL MYTHS
9

guage of our politics and politicians is mired in a simplistic rhet¬

oric of individual responsibility and an ideology of individual
autonomy.
Taking responsibility is understood narrowly, as being ac¬
countable for oneself and one’s dependents only. This sense of
responsibility is also primarily economic in nature. The au¬
tonomous individual is anchored in a world of paid labor either
direcdy, as a worker, or indirecdy, through marriage to a wage
earner. Autonomy is the absence of economic dependence on
outsiders, particularly on the government. At the same time, au¬
tonomy is seen as the reward conferred by the government for
economic self-sufficiency.
Autonomy thus connotes on an ideological level that an indi¬
vidual who conforms to the dominant notions of independence
and self-sufficiency is both freed from the prospect of regulatory
governmental action and freed through governmental structures
from interference by other private actors. The freedom through
the government is the nonintervention point stated in positive
terms—the right to be let alone is also the guarantee of privacy.
In establishing and adhering to a norm of nonintervention and
regulation for those individuals deemed self-sufficient, the state
grants them autonomy.
I argue that this sense of autonomy is on a collision course
with another important aspiration in the American constella¬
tion of political ideals—the promise of equality of opportunity
and access to societal goods and services. It is so because it posits
that state delivery of subsidy creates dependency and evidences
a loss of autonomy in the recipient, notwithstanding that for the
poor and many of the struggling middle class, some infusion of
economic and other resources is essential if they are to be able to
take advantage of the access and opportunity that society pro¬
vides formally.
In America, equality is not understood as it is in some other
societies, as a state or quality of being participation in the
10 THE AUTONOMY MYTH

“good life” of the community and sharing in society’s benefits,

at least in terms of entitlement to basic social goods. Equality in
this substantive sense means that there is some floor beneath
which individual citizens may not sink, a floor constructed by
the state because the status of being human demands a degree
of resources and dignity. This type of equality is viewed in other
societies as a necessary precondition for the exercise of self-
governance or autonomy, which the government is at least
pardy responsible to secure.
Instead, in America, while there is a great deal of rhetoric
about equality, in policy-making it seems a second-level con¬
cern. In our political process equality is cast as though it is a sub¬
set or outgrowth of autonomy. Equality is manifested in mere
formal or legal guarantees of sameness of treatment for individ¬
uals. Inherent in sameness of treatment is the absence of affir¬
mative governmental measures designed to raise the unequal to
a more equal position. Thus, equality is not an aspiration about
achieving a state of being for all citizens, but the obligation to
neutrally provide opportunity or access. In a society such as ours
where there is existing inequality, the guarantee of access and
opportunity means litde for many. In this way, our ideas about
autonomy interfere with the development of a concept of
equality as a substantive goal or objective with positive material
and social implications.
In the pages that follow, I look at some of the core concepts of
American mythology, focusing on autonomy with its attendant
notions of independence and self-sufficiency. I insist that we
have an obligation to reexamirte these concepts in the contexts
presented by our contemporary society and the needs and aspi¬
rations of people today. We must view these historic ideals with
the complexity that passage of time and resulting changes in so¬
cietal structures and aspirations^have added, perhaps redefining
them in the process. A commitment to a process of ongoing re¬
examination of core concepts w'ould be a recognition that even
 EXPLORING FOUNDATIONAL MYTHS II
r

if we were absolutely confident (which we are not) that we know

the historic meanings of those concepts, the demands of justice,
as well as concerns about the legitimacy of government, require
that our implementation of foundational principles resonate in
the current realities of our lives.
Every society has well-developed foundational myths associ¬
ated with its origin and the nature of its national character.5 By
“myth,” I mean “a legendary story that invokes gods and heroes
and explains a cultural practice or phenomenon.”b The mythi¬
cal stories of a nation—its dreams and the heroes who populate
them—both reflect and incorporate the historic values and vi¬
sions a society hopes to embody at home.7 They also represent
an assertion of the place of the nation within the larger context
of the world of nations by articulating what are self-reflectively
viewed as its asserted distinct, important, or powerful contribu¬
tions.8
One such construct, which will be discussed in more detail in
chapter eight, is the idea of the “social contract”—the theory
that modern states exist because individuals, who are free by na¬
ture, joined together and decided to create an agency—the
state—to act on their mutual behalf.9 The idea of the social con¬
tract is particularly relevant to the constellation of American
foundational myths, because the stories of the American Revo¬
lution, the Declaration of Independence, and the establishment
of the Constitution emphasize the very same concepts. The lan¬
guage of the Preamble of the Constitution is a classic expression
of a social contract:

We the People of the United States, in Order to form a more

perfect Union, establish Justice, insure domestic Tranquility, pro¬
vide for the common defense, promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity do
ordain and establish this Constitudon for the United States of

America.
12 THE AUTONOMY MYTH
«

These famous words of the Preamble are a classic example of a

foundational myth: they embody the principle that American
society is based on a democratic political system, which was vol¬
untarily created by “We the People” through the Founding Fa¬
thers.10

A. Myth and Purpose

In his classic book Myth and Reality, Mircea Eliade argued that
there are many varieties of myth. Religious myths, for example,
deal with gods and worship, and natural myths deal with the sto¬
ries of natural phenomena. Eliade’s research focused on primi¬
tive and archaic societies, but the principles also apply to
modern myths. However, unlike the primitive societies, ad¬
vanced societies also develop political myths, which are based on
the same principles and differ from other types of myth only in
subject matter.11 Like the myths described by Eliade, political
myths do not merely entertain; they promote practical pur¬
poses.12 They are based on the story of a society’s beginnings,
but they also explain the present and provide a vision of the fu¬
ture.13 Political myths “[tell] the story of how a political society
was founded, and [express] the values and aspirations of those
who benefit. . . from the continued existence of that society.”14
In addition to their historic aspect, foundational stories are
also epic in nature, relating in poetic terms a series of majestic
achievements over time. This epic characteristic enhances the
stories’ mythic quality, as well as the perception that the values
and personal attributes represented are stable and legitimate as¬
pirations irrespective of the passage of time or changing societal
circumstances.15
Foundational stories are about people. Eliade said that myths
tell the story of “the fabled time of the ‘beginnings’ . . . [and]
the actors in it are Supernatural Beings and mythical Ances¬
tors.” A myth is more than just a story about our origins; it also
 EXPLORING FO U*N D AT IONAL MYTHS 13

“supplies models for human behavior... it expresses, en¬

hances, and codifies belief; it safeguards and enforces morality
. . . and contains practical rules for the guidance of man.”16
The Preamble of the Constitution reminds us of the “time of
beginnings” of the United States. The Founding Fathers are the
mythical ancestors who provide an exemplary model for inde¬
pendent and democratic behavior, and classic “American val¬
ues”—justice and liberty—are given as reasons for establishing
the new state.
As a myth, the story may not present a strictly accurate his¬
torical account of the past, but it preserves the significance of
the event.17 There is no historical evidence that George Wash¬
ington ever cut down a cherry tree or uttered the words “I can¬
not tell a lie,” but the story is a mythical expression of the value
of honesty, modeled by a mythical ancestor. Other societies also
have their own foundational stories: the Norman invasion of
England, the Great Trek of the Afrikaners, and the Russian
myth of the October Revolution are all examples of political
foundational myths.18
The traits of the Founding Fathers and ancestors are often
presented in mythic terms, as though they were unwavering and
unchanging over time.19 These characteristics become cultural
and ideological absolutes, cast as not only desirable but also es¬
sential to instill in the current generation within individual citi¬
zens in order to preserve the very identity of the nation.20 One
aspect of the classic Roman foundation myth was that as de-
scendents of the Trojans, the Romans inherited the valuable
qualities of the Trojans.
In his study of political myths, Henry Tudor explains a
process applicable in analyzing the role of myth in American
constitutional discourse: “the foundation [al myth] . . . estab¬
lished the character of the Romans as a people, and it was in
terms of their character that they explained their rise to great-
i4 THE AUTONOMY MYTH

ness.”21 Romans looked to their own mythical ancestors as ex¬

amples to follow, just as Americans uphold the model of the
Founding Fathers. The Roman author Ennius wrote: “On men
and on manners of olden times stands firm the Roman state.”22
These characteristics provide the imagery of the language of
politics and exemplify the aspirations of the nation for its citi¬
zens.23 In this way, purported historical attributes and character¬
istics become mythical and manifest their status as foundational.
Because foundational political myths are typically complex
and multidimensional, they can be made relevant to shifting
patterns, incorporating or accommodating changes within soci¬
eties. A foundational myth evokes a particular theme over
time—that the current greatness is the result of specific deeds by
the mythical ancestors—but the historically particularized ver¬
sions of each story may be used for different, even contradictory
political purposes as time passes and the political needs of the
state evolve. On the Roman foundation myth, Tudor has ob¬
served: “as the myth was transmitted from one generation to the
next, its meaning and content changed giving us a series of indi¬
vidually distinct versions. A political myth is not a world-view
which somehow persists unchanged through all its particular
manifestations.”24
In fact, the circumstances of a nation and its people are al¬
ways evolving and fluid. Nevertheless, politicians using political
foundational myths ignore this or see it as undermining adher¬
ence to the core values the stories reflect.25 It seems that the na¬
ture and form in which the values are manifested is deemed to
be independent of any societal context.
In fact, politicians often present these stories as if they persist
unchanged. The myths’ status as foundational means that cer¬
tain values escape an explicit and self-conscious examination by
the society that holds them out; as the conceptual structures
defining their national “character.”26 Tudor has commented
 EXPLORING FO UN D AT IONAL MYTHS
*
15

that “[bjecause a myth has nothing specific to propose and gives

no reasons for what it asserts, it eludes the critical efforts of ‘in-
tellectualist philosophy.’ Unlike a program or a prediction, a
myth cannot be refuted.”27 Thus, there is little impetus to con¬
sider the appropriateness of the values for our contemporary
citizen and society.28
Ironically, at the time of the Declaration of Independence,
the term “independence” meant freedom from the need to work
for wages paid by another. Not relying on a wage constituted in¬
dependence, and those members of society who had to work for
their living were considered “wage slaves.”29 Wage earners were
actually considered to have forfeited their economic independ¬
ence: “however voluntary the transaction, to work for wages was
to be dependent, to lose the autonomy requisite to citizenship—
the autonomy associated with title to property.”30 The abolition¬
ist movement, the Civil War, the Industrial Revolution, and the
rise of charity reform all converged to change the prevailing un¬
derstanding of dependency. Eventually wage work was consid¬
ered a manifestation of independence along with property
ownership enjoyed by the “independently wealthy.”31

B. Mythical Politics
The tendency of political myths to evade self-conscious recon¬
sideration by each new generation is unfortunate. Times and
circumstances change and evolve, sometimes dramatically.
When societal change is sweeping and profound, it affects aspi¬
rations and expectations as well as behavior. In the wake of
change it may be that certain foundational myths need adjust¬
ment in order to be made compatible with contemporary cir¬
cumstances and situations. Altered social realities may require
the explication of a more nuanced understanding of a cher¬
ished national characteristic or value. It is also sometimes the
case that changing contexts and circumstances will cast histori-
i6 THE AUTONOMY MYTH

«
ft
cally compatible foundational aspirations in tension with one
another.32 In such a case, there is also a need for realignment in
order to regain a sense of consistency among cherished objec¬
tives, a reconsideration of the very nature of our goals and val¬
ues and the weights historically conferred upon each in relation
to others.
Such a project would require express consideration of the na¬
ture and function of the current versions of our foundational
myths because they do not stand alone and are not easily identi¬
fiable. Political myths operate in extremely complex cultural
contexts and are usually embedded and interwoven into “the
framework of a general ideology,” combined with philosophy,
history, and science.33 As a result, they are difficult to examine
critically, as they are only one element of a series of mutually
supporting points of view.34 Change in understanding is slow.
However, the excavation and reevaluation of the current ver¬
sions of our political myths is a crucial project because such
myths may be used rhetorically to bolster positions that are fun¬
damentally incompatible with healthy social programs. Recon¬
sideration is important because, while myths can be used for
many, even contradictory purposes, they tend to operate in a
conservative manner. They are more often used to preserve the
status quo than to inspire change.35
While myths tend to support conservative policies, they can
be used progressively and actively. Political myths can be power¬
ful tools in forging many types of social policy. In our current
ideological climate, however, they are most often wielded by
those in power, who argue for curtailment of emerging family
forms, as well as of progressive welfare policies perceived to be
undesirable because they support those forms. By evoking the
language of foundational myths—words such as “autonomy,”
“independence,” “justice,” and “liberty”—political players may
shield a very radical agenda from societal scrutiny. When dis-
 .4*

EXPLORING FOUNDATIONAL MYTHS

i7

cussing the application of political myths, Tudor observes that

“emotive words such as ‘equality,’ ‘dictatorship,’ ‘elite’ or even
‘power’ can often, by the very passions which they raise, obscure
a proper understanding of the sense in which they are, or should
be, or should not be, or have been used.”36
Of course, foundational myths are conveyed not only in po¬
litical contexts. In fact, they must be part of the day-to-day
ideological context of life in order to become truly fundamen¬
tal—embedded in the sense of national character. Our values
are thought to be transmitted within our society’s basic institu¬
tions, such as the family, and handed down from generation to
generation. The values are typically assumed to be coherent in
nature, as well as both perfectly clear to and perfectly attainable
by the successful citizen growing up within the appropriately
functioning family. Correctly transmitted, values become intu¬
itive or second nature.37 This explains why there is such concern
when institutions such as the family begin to change their his¬
toric (or mythical) nature and form—we fear that the values will
not be properly instilled or will be distorted or destroyed within
deviant family configurations.38

II. THE RELATIONSHIP BETWEEN THE “RULE OF LAW” AND

FOUNDATIONAL MYTHS

In the United States, our foundational beliefs and aspirations

historically were and continue to be profoundly shaped by the
fact that the nation was created through a process of democratic
liberation from an oppressive monarchy. The heroes of our
story of national origin were the Founding Fathers, who set up a
system of government based on the consent of the governed a
democracy. The foundational principles in this story were not
only the ideal of democracy, but also concepts such as equality,
i8 THE AUTONOMY MYTH

liberty, and due process of law. Law in this context is essential to

democracy, equality, and liberty—it provides the assurance that
a free people will be treated equally, not arbitrarily, and that
their liberty and freedom will be guaranteed against govern¬
mental encroachment and violation by others. We are proud to
proclaim that we have a system based on “the rule of law, not on
the rule of men.”
This idea—that the law is objective and universally applied—
means that the law can be offered as a “neutral” mediator in
controversies, whether they occur between state and citizen or
among citizens. This perception that the law is the framework
for the expression and protection of our individual rights com¬
plements the belief that other core values are timeless and un¬
changing and therefore appropriately monitored and protected
from and through governmental action and attention. The no¬
tion that law protects us is an important part of the story that
ours is a legitimate and just system of government, to which it
would be only natural to consent.

A. Autonomy, Independence, and the Individual

The centrality of independence to the construction of individ¬
ual American identity is reflected in the mythic and founda¬
tional document the Declaration of Independence. While it
declares freedom for a fledgling nation, it nonetheless sets forth
as a “natural” principle that every individual is endowed with in¬
alienable rights, such as the right to life, liberty, and the pursuit of
happiness. The Constitution of the United States and the Bill of
Rights more fully develop the cohcept that individual rights de¬
fine the relationship between government and citizen. Self-
government (autonomy) is the ideal and defines the individual
subject of liberal political discourse.
The specific provisions of the Bill o'f Rights restrain the gov¬
ernment in regard to the individual, whose liberty and equality
 EXPLORING FO IT'N D AT IONAL MYTHS
!9

are thereby guaranteed. Government may not implement its

will or even the will of the majority so as to interfere with pro¬
tected spheres of action, such as individual speech or individual
right of assembly. When the government does act, it must do so
with restraint and according to principles of due process. Indi¬
vidual liberty interests are what are protected—autonomy en¬
tails being left alone to satisfy our own needs and provide for our
own families without undue restraint.
Through the concept of states’ rights, our Constitution also
incorporates the idea of a limited sphere for the national, as
contrasted with the local or state, government. This concept is
embodied in the idea of federalism. Our foundational docu¬
ments set up a federation of individual states that have joined
together and ceded power to the national government. But the
national is a limited sovereign.
States’ rights are in part a continuation of individual rights
against governmental intrusion. The least offensive government
is assumed to be the one closest to home. The states are closest to
the citizen and thus presumptively more within the democratic
individualistic ideal. The Constitution, therefore, structures the
relationship between these individual states and the national
government. The Bill of Rights restrains the government in re¬
gard to the individual.
Consistent with eighteenth-century liberal political theory,
the foundational concepts of our society, as well as the docu¬
ments enshrining them, conceptualize the individual as a rights
holder—separate from, but potentially in competition with,
other rights holders. Rights holders are autonomous human be¬
ings, protected in their individuality from encroachment by
other individuals on their rights. But our particular constitu¬
tional ordering also implies that freedom from external rules
and regulations generated by government is inherent in individ¬
ual autonomy. Autonomy is synonymous with a concept of self-
20 THE AUTONOMY MYTH

governance, and is characterized by self-sufficiency and inde¬

pendence, individual qualities that are seen as prerequisites for
individual freedom of will and action.
Our all-American hero is therefore the autonomous individ¬
ual, protected by law from unwarranted interference with his
rights by other individuals and by government on any level, and
free to conquer the frontier, be it westward or upward into space.
The rhetoric of individual freedom and rights incorporating an
ideally restrained and limited government permeates our soci¬
ety. We believe that this is the natural order of things, guaran¬
teed to us as citizens of the United States.
As part of this rubric of individual rights, our entrepreneurial
spirit cannot and should not be contained and restrained—free¬
dom for the individual requires freedom from governmental
regulation and control. This belief creates a complicated set of
hurdles for reformers to overcome when they seek to argue that
there is a need for governmental action in order to remedy in¬
equity and equalize existing unequal conditions.

B. Autonomy
Autonomy is indisputably important in our constellation of
foundational myths, perhaps more centrally so today than ever.
However, in recent years the myth of autonomy has become
opaque and illusive. This is partly because this myth does not
encompass only one situation or circumstance where we set up
autonomy as a paramount objective, but confuses and speaks in¬
terchangeably about several different aspects of the concept.
Autonomy is the term we use when describing the relationship
between the individual and the state. Autonomy in this regard is
individual freedom from state intervention and regulation, the
ability to order one’s activities independent of state dictates. In
particular, we think of an economically self-sufficient individual
as autonomous in relation to society and its institutions.
 EXPLORING FOUNDATIONAL MYTHS 21
n

But families also have the expectation of autonomy placed on

them in today’s political culture. An autonomous family is a
family perceived to be self-sufficient, providing for the needs of
its members. The autonomy of the family in relation to society is
expressed in the idea that it occupies a “separate sphere,” and is
a “private” institution governed by distinct rules. This type of
autonomy, along with the individual variety, underlies our cur¬
rent political culture.
There is a third type of autonomy that is also relevant. This is
the autonomy of individuals within the family, for which femi¬
nists have fought by exposing domestic violence and child abuse.
This way of thinking about autonomy separates out individuals
from the family unit and asks that their interests be considered
separately and protected even against other members of that
family unit. This version of autonomy undermines the other
two, in that the individual who is encroaching on the welfare or
safety of another family member can find his autonomy com¬
promised by the state’s intervention on behalf of the person in
danger (on the side of her autonomy as an individual indepen¬
dent from her place within the patriarchal family). In such con¬
texts, the family is treated not as an autonomous and separate
entity, but merely as another societal institution subject to regu¬
lation and the imposition of norms generated from the outside.
It is important for us to examine foundational concepts such
as autonomy in all their manifestations and permutations and to
see how they are being used rhetorically and ideologically in so¬
ciety. What does a resort to the rhetoric of autonomy mask?
Whose interests are served when it is invoked? Indeed, what
does it mean to those who invoke it, as well as to those against
whom it is invoked? In considering these questions, it is impor¬
tant to note that not all three versions of autonomy are consid¬
ered equally desirable in our current political climate.
Individual autonomy is the type most brandished about by
22 THE AUTONOMY MYTH

politicians. Family autonomy is still assumed to be the natural

order of things, and the idea of the state’s intervening to protect
the autonomous interests of a member of the family against an¬
other member is deeply contested by certain groups in society
seeking to preserve the traditional, “autonomous” family.
Notions of individual autonomy have been powerfully em¬
ployed in shaping policy. In recent years, the myth of individ¬
ual autonomy has been spun out in very individualistic terms
by those invoking such phrases as “independence” and “self-
sufficiency” to describe the ideal citizen. Independence and self-
sufficiency are terms that refer to characteristics that are
perceived as attainable and as complementary in our political
and civic discourses. Even the targets of the imposition of inde¬
pendence are convinced of its appropriateness, as evidenced by
the “testimony” of mothers on welfare who mimic the rhetoric
that condemns them as pathologically dependent. They accept
the assertion that independence and self-sufficiency are inex¬
orably tied to paid work.
In a very simplistic sense in contemporary America, individ¬
ual autonomy is linked with economic notions. Independence
and self-sufficiency are characteristics of an idealized economic
status. Attainment of that economic status, in turn, is a necessary
precondition for the conferral or recognition of any other type of
independence or autonomy by the system. Only if we are eco¬
nomically self-reliant can we be considered independent. Be¬
cause we are able to supply the economic resources necessary to
meet our needs, we are self-sufficient. In this way, independence
and self-sufficiency “buy” for us thoright to self-governance and
“control over will and actions. They earn for us our autonomy.

C. Manifesting Equality
Equality guarantees that the same rules-will apply to us all, un¬
influenced by our station or status in life. Of course, the original
American notion of equality applied oply to white, male, and
 EXPLORING FOUN-DATIONAL MYTHS 23
r

propertied citizens, belying the universality of equality in regard

to the exercise of political and civil rights. However, equality
progressed in the epic of American law as more and more peo¬
ple were eventually assimilated to the original ideal. The Civil
War addendum to our story added the Thirteenth, Fourteenth,
and Fifteenth Amendments, abolishing slavery and adding
black males to those entided to political equality. The suffragette
struggles led to the Nineteenth Amendment, adding women to
the ranks of voters. Political equality was manifested in a very
direct manner—equivalent treatment. The idea was “one per¬
son, one vote”—people were to be treated the same.
Even beyond the political situation, our conceptualization of
the ideal of equality has been based on an antidiscrimination or
sameness-of-treatment principle. This is certainly apparent in
the juridical or civil sense of equality (equality before the law).
Different treatment is suspect, unless there is some legitimate
basis for distinguishing among individuals or groups. The his¬
tory of law in the twentieth century involved the expansion of
legal rules to extend equal treatment, access, and opportunity to
more and more individuals. Currendy, gay men and lesbians
seek protection within this antidiscrimination paradigm, argu¬
ing for access to institutions such as marriage and for protection
in employment and public accommodations.
The American march toward greater and greater equality has
resulted primarily in an increase in the numbers of persons con¬
sidered to be entided to equality in treatment or access to existing
categories of social goods, not in an expansion of our under
standing of the substantive nature of equality. We gain the right
to be treated the same as the historic figure of our foundational
myths—the white, free, propertied, educated, heterosexual (at
least married), and autonomous male. We do not gain, however,
the right to have some of his property and privilege redistributed
so as to achieve more material and economic parity. We have not
altered our understanding of the concept of equality beyond
24 THE AUTONOMY MYTH

mandating sameness of treatment, equality in access, and op¬

portunity with the mythic male. We have merely expanded the
group to whom this version of equality is to be applied.
Of course, political equality and the idea of equality under
law are significant aspects of the protection and guarantees
owed to the citizen by the state. But it is important for us to ask
whether these forms of equality (freedom from discrimination
and a guarantee of sameness of treatment by the government)
are sufficient to actually ensure an appropriate level of substan¬
tive equality in today’s world. Retelling our foundational story
for an audience confronting the problems and contexts of the
twenty-first century might posit a world in which we were prom¬
ised more in terms of securing equality than just sameness of
treatment in the political and juridical relationship between the
government and the governed.
One could argue that concepts such as equality require con¬
stant mediation between articulated values and current realities.
In trying to understand the current contexts that shape our ex¬
pectations for equality, we might also want to consider changes
wrought by advances in technology and knowledge that have in¬
fluenced the structures of society. So, too, we may want to take
into account pressures and opportunities, reflecting on chal¬
lenges to our concept of equality generated externally through
our interactions with other nations. We must be attentive to evo¬
lutions in our concepts and understandings of what we consider
“just” and “fair.” Our views on justice should be evolving as so¬
cietal knowledge, realizations, aspirations, and circumstances
change. S
A second line of inquiry would place equality in the context
of other societal aspirations and ideals. How do our contempo¬
rary aspirations for equality relate to our pursuit of other values,
such as autonomy? How does our definition of terms such as
dependency and self-sufficiency shape our sense of what consti¬
tutes equality? Equality rests side by s^de with other founda-
 EXPLORING FOUNDATIONAL MYTHS 25

tional concepts that set out further expectations for the citizen in
regard to the state, as well as ordering the relationships among
diverse societal institutions, such as the family and the market.
In fact, these other foundational concepts have had a profound
effect on the way in which equality has been understood histori¬
cally, actually shaping the course and direction of its legal his¬
tory and limiting the potential scope of the concept. Paramount
among the limiting values in this regard are contemporary ideas
about individual freedom, which is reduced to the idea of au¬
tonomy with its complementary components of individual inde¬
pendence and self-sufficiency.

III. EQUALITY OR AUTONOMY-SHIFTING FOUNDATIONS

Foundational myths, while rhetorically constant over time, may

actually convey very different aspirations, values, and concepts
from one generation to the next or across different groups within
society at any one time. This presents a dilemma to the idea of
equality, which is typically stated in abstract, timeless phrases
and encapsulated in ringing terms, such as “justice for all” or
“equality under the law.” There is yet another equality dilemma
lurking—when foundational concepts are in fact little more
than unrealizable myths, they can have real and negative socie¬
tal consequences. The idea of individual autonomy is used as a
measure against which to judge the appropriateness of both in¬
dividual and governmental actions. It also sets standards for the
functioning of societal institutions, such as the family, the mar¬
ket, and the state.39

A. Meaning and Myth

Foundational myths and the concepts they promote are in fact
abstractions. Terms such as autonomy and equality have no in¬
dependent meaning or definition and can be understood in con-
26 THE AUTONOMY MYTH

ft
flicting and incompatible ways. These concepts often become
battle cries for diverse political movements.40 Their amorphous,
overarching, and imprecise nature means that they can be used
simultaneously by those holding disparate positions in regard to
any proposal.41
The foundational myth of individual autonomy can be un¬
derstood to mandate that there be “equality of opportunity” so
that each individual can succeed or fail according to her or his
own merits and initiative. But it is not clear exactly what equal¬
ity of opportunity might entail in the way of either individual or
regulatory effort and action. For example, equal opportunity
can be used to justify the institutional creation of an affirmative
action program to “equalize” the possibilities for people who are
members of historically excluded groups, while simultaneously
serving as a rallying cry for those resisting such schemes because
they give members of certain groups an “unequal advantage.”
The first group would be arguing that their individual aspira¬
tion for autonomy is frustrated and the whole ideal twisted if ex¬
isting systems of privilege and power prevent them from
competing on equal footing with those who have not been his¬
torically excluded. Those resisting affirmative action would
argue, in contrast, that “special” treatment for some in society
compromises the autonomy of others and is a “perversion” of
the principles of independence and self-sufficiency, signaling
the very end of meritocracy.
Likewise, one may assume that a modern marriage is a “part¬
nership” and that both parties should be treated equally should
the marriage end in divorce. However, there are many different
interpretations of “equal” treatment in such contexts. One
could argue that equal treatment means the family assets should
be divided in half, which would constitute a version of equal
treatment at the moment of divorce, and that there should be no
ongoing entitlement to the future' wages of the primary wage
earner.
 EXPLORING FO UN DATIONAL MYTHS 27

On the other hand, particularly if there are children, one

could argue that the assets should be divided so that the party
who is assuming caretaking responsibilities—usually the
mother—is able to maintain a living standard similar to that of
the other spouse. In addition, one could argue that periodic pay¬
ments should continue for a substantial period of time to sup¬
plement the reduced amount the caretaker will be able to earn
working for pay due to the demands at home. It could be said
that this would be the only way to treat the caretaker-child unit
equally and ensure their future autonomy.
Both approaches to this problem would be based on the prin¬
ciple of equality and a desire for autonomy. However, the fo¬
cuses of the approaches are different. Husband and wife in this
situation have conflicting and incompatible equality and auton¬
omy interests. Equality for caretaker and child, allowing them to
achieve autonomy, comes at the expense of equal treatment of
the noncaretaker and some compromise of his (or her) au¬
tonomous ability to decide the nature and extent of his obliga¬
tions. Depending on which perspective we take, we would get
very different divisions of marital assets and imposition of ongo¬
ing financial responsibility after divorce.
Opponents of the equality-of-result approach resist the idea
that equalizing results may require unequal treatment in some
circumstances. Paradoxically, they may also resist the imposition
of sameness of treatment in other circumstances. Considering
equality across families, the point should be made that at a min¬
imum there is no equality possible so long as only some individ¬
uals bear the burdens of family and reproduction in society. Nor
can there be equality for families so long as the foundational re¬
lationship continues to be marriage, which is limited to hetero¬
sexuals and excludes other intimate relationships that are not
based on sexual affiliation.
This latter point is important. The status of marriage and the
institution of the marital family is the way that many social
28 THE AUTONOMY MYTH

goods are delivered to individuals in American political culture.

The state subsidizes this form of family. Social goods, such as in¬
surance and old-age pensions, are structured through the work¬
place and the family, rather than directly from the state, as is
typical in social welfare democracies, such as those of Western
Europe. The family is a mediating institution, and access to it is
critical for claiming social benefits.
This doesn’t mean that we recognize the marital family as a
subsidized institution that is dependent on state largesse. In fact,
our very particularized and superficial type of autonomy has
become the standard applied in judging societal institutions,
such as families, as well as individuals. Economic independence
and self-sufficiency are set up as transcendent values, attainable
for all social units and for all members of society. Offered in
negative comparison to independence and self-sufficiency are
the ideas of dependence and subsidy. As discussed more fully in
chapter two, dependence is negatively compared with the desir¬
able status of independence, and subsidy is vilified as a failure to
meet the meritorious goal of self-sufficiency.

B. Rethinking Autonomy
The very terms of autonomy—as exemplified by economic in¬
dependence and a detached notion of self-sufficiency—might
well be redefined or reimagined in the public mind. Indepen¬
dence is not the same as being unattached. Independence from
subsidy and support is not attainable, nor is it desirable; we want
and need the webs of economic and social relationships that sus¬
tain us.42 A different understanding''of autonomy and what it en¬
tails is needed. It is not beyond our current ability to imagine a
new concept of autonomy, one that recognizes that the individ¬
ual lives within a variety of contexts and is dependent upon
them. ;
Certainly popular culture seems open to the idea. This can be
 EXPLORING F 041 N D,A TIONAL MYTHS
29

seen in the popularity of books and educational programs by

Stephen Covey, author of The Seven Habits of Highly Effective Peo¬
pled Covey’s work is based on the theory that all of nature,
human life, and society are interdependent. He suggests that
there is a continuum of maturity, from dependence, to inde¬
pendence, to the eventual realization that we are all interde¬
pendent.44 He observes: “the current social paradigm enthrones
independence. It is the avowed goal of many individuals and
social movements. Most of the self-improvement material puts
independence on a pedestal, as though communication, team¬
work, and cooperation were lesser values. . . . But much of our
current emphasis on independence is a reaction to depend¬
ence—to having others control us, define us, use us, and manip¬
ulate us.”45 Covey thus implies that there is a connection
between the emphasis on independence and the stereotypes and
social stigma attached to dependence.
Aside from the inroads into the national psyche that might be
provided by pop psychology, there are important arguments and
debates that must occur in political and policy circles about the
interrelationship between autonomy and equality. Specifically,
we should not define our aspiration for equality in the shadow of
autonomy. Rather, we must begin to think of autonomy as possi¬
ble only in conjunction with the meaningful and widespread at¬
tainment of equality. For example, some degree of equality
(equalization) of resources so that there is a floor below which no
citizen shall fall would seem to be a prerequisite for the achieve¬
ment of autonomy. Autonomy is only possible when one is in a
position to be able to share in society’s benefits and burdens.
And sharing in benefits and burdens can only occur when indi¬
viduals have the basic resources that enable them to act in ways
that are consistent with the tasks and expectations imposed
upon them by the society in which they live.
The expectation that one should achieve this form of auton-
 THE AUTONOMY MYTH
30

omy—autonomy supported by a societal commitment for the

provision of basic social needs—should be every person’s
birthright. Autonomy in this sense concedes that there is an in¬
herent dependence on society on the part of all individuals.
While some, having benefited by history and circumstances,
may have the current means and methods that make it fair to ex¬
pect them to achieve autonomy, others have been disadvantaged
and are deserving of some societal support.
In addition, this form of autonomy concedes that the concept
only has meaning in situations in which individual choices are
not made impossible, constrained by inequalities, particularly
those inequalities that arise from poverty. The goal of autonomy
must be supported through an understanding of collective re¬
sponsibility for basic needs.
 Chapter Two

Dependency and Social Debt:

Cracking the Foundational Myths

I. INTRODUCTION

Ideals of independence and self-sufficiency historically have

been complementary themes in our political discourse. Both of
these core concepts seem subsumed within the contemporary
manifestation of the ideal of autonomy, giving it content. Invok¬
ing autonomy, we create and perpetuate cultural and political
practices that stigmatize and punish those among us labeled de¬
pendent. Dependency is thus cast as a societal problem in need of
drastic measures to remedy. However, only some interrelation¬
ships among individuals and institutions are seen as constituting
dependency. In recent years, much of the content of dependency
has been provided by debates in the welfare context.
Specifically, in our political rhetoric and policy we stigmatize
with the label “dependent” the welfare mother who is unem¬
ployed and trapped within poverty. Her need for resources in
order to undertake her caretaking responsibilities mandate she
resort to public support in the form of government subsidy. Her
 THE AUTONOMY MYTH
32

circumstances are deemed to be her fault and the solutions

within her control—she is told that she can marry or she can
work, perhaps do both to relieve her situation. Her dependency,
as conceptualized of her own making, means she is undeserving
of a “handout.” Disciplined into self-sufficiency, she is aban¬
doned to assume responsibility for herself and her children.1
The rhetoric surrounding the welfare mother evidences a
narrow conception of self-interest in which each person is per¬
mitted only to care about his or her own circumstances and
those of his or her family. This has led to a rending of the social
safety net in the United States. The illusion that independence is
attainable for all leads to increased resistance to responding to
the obvious dependency of others, as the better-off taxpayer de¬
taches himself from the poor and struggling in society. Econo¬
mist Frank Levy of the Massachusetts Institute of Technology
sums up the consequences of such a narrowed perspective when
he notes that prosperous Americans “have caught on to the fact
that they can do better if there is no redistribution of income,
and since power correlates with income, they are in a position to
push the argument.”2
This self-interest may not be considered selfish or greedy if
those same Americans can convince themselves that we are all
capable of becoming economically “self-sufficient” and “inde¬
pendent,” regardless of the socioeconomic circumstances of
our lives. Those who need the government subsidy of welfare
payments or other programs simply are not “taking responsibil¬
ity” for themselves, a premise exemplified by the current politi¬
cal rhetoric about the poor. \
Ironically, at the same time that we stigmatize mothers on
welfare, we commiserate with industries that experience other
forms of “disaster” that we define as outside of individual con¬
trol. American politicians apply differing standards of self-
sufficiency to different situations'. Hence we “bail out” some
who run amok economically, such as farmers, airlines, savings
 DEPENDENCY “A. N D SOCIAL DEBT
33
r

and loan associations, and highway construction firms. Some¬

times the cash transfers such entities receive are justified as being
in the national interest—an investment to secure jobs, ensure
national defense, or otherwise promote the “American way.” At
other times, the government is seen as playing the role of an in¬
surer, such as when it responds to disasters that occur when
houses built on floodplains or over fault lines are destroyed
through predictable natural occurrences.
We rationalize assistance for ill-conceived or no-longer-sound
business reasons and view as necessary and appropriate disaster
assistance for “acts of nature,” but bristle at providing relief for
the disasters that have resulted from decades of neglect and dis¬
crimination—disasters manifest in inner cities and rural poverty
pockets. Governmental response in the former cases is seen as a
matter of investment or preservation, an entitlement, not a
grudging response to dependency, as it would be if the subsidy
were going to impoverished mothers and their children.
In an ultimately disastrous manner for our families, we val¬
orize activities associated with work for wages and the accumu¬
lation of wealth, while we take for granted dependency work
and the production of human beings. Yet raising the future gen¬
eration is certainly of at least equal value and significance to
society as that of the economic activities we subsidize and facili¬
tate. As the argument in this chapter indicates, not only is de¬
pendency inevitable, reliance on governmental largesse and
subsidy is universal. We delude ourselves when we think that
many (perhaps any) endeavors in our complex modern society
can be undertaken in an autonomous and independent manner.

II. THE RHETORIC OF DEPENDENCE AND INDEPENDENCE

Given where we as a nation stand on theoretical and moral

grounds, one of the most important tasks for those concerned
 THE AUTONOMY MYTH
34

with the welfare of vulnerable members of society, particularly

poor mothers and their children, is the articulation of a com¬
pelling and complex theory of dependency. I do not underesti¬
mate the difficulty of this task. Dependency is a particularly
unappealing and stigmatized term in American political and
popular consciousness. The specter of dependency is incompat¬
ible with our beliefs and myths. We venerate the autonomous,
independent, and self-sufficient individual as our ideal. We as¬
sume that anyone can cultivate these characteristics, consistent
with our belief in the inherent equality of all members of our
society, and we stigmatize those who do not.
Politicians, social conservatives, and advocates of small gov¬
ernment use the labels of “dependency,” which signifies the con¬
dition of being dependent, and “subsidy,” which denotes a
governmental handout, in an accusatory, simplistic, and divisive
manner.3 The mere invocation of the term “dependency”
prompts and justifies mean-spirited and ill-conceived political
responses, such as the 1996 welfare “reform” designed to “wean”
women and their children from the “cycle of dependency” and
“free” them for the world of work. These “reforms” were com¬
pounded in the reauthorization process begun in 2002.
The force of the rhetorical assault has served to derail or limit
contemporary policy discussions about important issues of pub¬
lic welfare. Condemnation or pity are considered the appropri¬
ate responses for those unable to live up to ideals of autonomy
by acting in an independent and self-sufficient manner. How¬
ever, the very idea of an independent individual is fashioned
upon unrealistic and unattainable (dare I even say, “undesir¬
able”) premises.

A. “Inevitable”and “Derivative”Dependency
It is puzzling, as well as paradoxical, that the term dependency
should have such negative connotations. Far from being patho-
 DEPENDENCY aAND SOCIAL DEBT 35

logical, avoidable, and the result of individual failings, a state of

dependency is a natural part of the human condition and is de¬
velopmental in nature. Understood from this perspective, devel¬
opmental dependency should at least be regarded as both
universal and “inevitable,” and for these reasons, certainly not
deserving of generalized stigma.4 All of us were dependent as
children, and many of us will be dependent as we age, become
ill, or suffer disabilities. Surely this form of unavoidable and in¬
escapable dependency cannot be condemned. Historically, such
dependents were called the “deserving poor,” and thus deemed
worthy of society’s largesse.
Dependency is not only of the biological or physical sort dis¬
cussed so far, and this type of dependency does not exhaust the
potential range of situations in which we depend upon others.
There are additional forms of reliance that might be character¬
ized as “dependency,” such as economic, psychological, or emo¬
tional dependency. In fact, these other categories may
accompany the physical or biological form that I am labeling
“inevitable.” One lesson, therefore, is that the term dependency
encompasses more than one set of relationships or circum¬
stances. It is far from a simplistic, one-dimensional idea—it
must be understood to be a complex and multifaceted concept,
potentially taking many different forms. My concern in this
book is in the first instance with the form of dependency that I
label inevitable. Its universality and inevitability position this
form of dependency at the center of the arguments made in this
chapter about the obligation of society and its institutions.
Paradoxically, undertaking dependency—caring for an in¬
evitable dependent—generates a different form of dependency
in the caretaker. I label this form of dependency, often over¬
looked in policy discussions or collapsed into stigma, “derivative
dependency.” Derivative dependency arises when a person as¬
sumes (or is assigned) responsibility for the care of an inevitably
36 THE AUTONOMY MYTH

dependent person. I refer to this form of dependency as “deriv¬

ative” to capture the very simple point that those who care for
others are themselves dependent on resources in order to under¬
take that care.
Derivative dependency has both economic and structural di¬
mensions. The economic issues are related to the fact that within
families, caretaking work is unpaid.5 The structural dimension is
due to the fact that caretakers do their caretaking within societal
contexts and rely on some institutional accommodation or non¬
economic resources to assist in their labor. Far from structurally
accommodating or facilitating caretaking, workplaces operate
according to premises that mean that domestic dependency
labor is incompatible with the norms and practices of paid
labor. For those who have assumed the responsibilities of care¬
taking, current workplace expectations compete with the de¬
mands of dependency and, in this regard, caretaking interferes
with or even precludes participation in the paid labor force.
Derivative dependents, as a result of the dependency work
they are doing, have a need for monetary or material resources.
They also need recourse to institutional support and accommo¬
dation, and have a need for structural arrangements that facili¬
tate their caretaking. Dependency work is demanding. The
norms of sacrifice and selflessness are clear—and cosdy. It is im¬
portant to emphasize that, unlike inevitable dependency, deriv¬
ative dependency is not a universal experience. Derivative
dependency is inherent in the status of caretaker, but not all of
us perform that role. In fact, many people in our society totally
escape the burdens and costs that <irise from assuming the role of
a caretaker, and perhaps are even freed for other pursuits by the
caretaking labor of others.
In our current understanding,' inevitable dependency, as well
as the derivative dependency it generates, is considered to be a
private matter. It is the family, not the state or the market, that
 DEPENDENCY M N-D, SOCIAL DEBT 37

assumes responsibility for inevitable dependency. In this regard,

the institution of the family frees the market to act without con¬
sideration or accommodation for dependency The state is cast
as a default institution providing minimal, grudging assistance
should families fail. Each individual family is ideally responsible
for its own members’ dependency and resort to collective re¬
sources is considered a failure, deserving of condemnation and
stigma. In fact, the failure to adequately provide for its members
can move a family from the private to the public sphere, where it
may be regulated and disciplined.6
The assignment of responsibility for dependency to the fam¬
ily in the first instance, and within the family (mainly to women)
in the second, operates in an unjust manner. Meeting the needs
of dependents has significant material implications for the care¬
taker. One result of this privatization of inevitable dependency
is the frustration of our aspirations toward gender equality. It
has proven difficult, if not impossible, to break unequal historic
patterns of gendered division of labor within the family when
the family is also saddled with almost exclusive responsibility for
dependency. Within the family, dependency work typically con¬
tinues to burden women more than men. In the pattern of long¬
standing tradition, caretaking continues to be delegated to
women—assigned as the responsibility of the person occupying
the gendered role of wife, or mother, or grandmother, or daugh¬
ter, or daughter-in-law, or sister.7

B. Dependency and Responsibility

In considering how to shape our social policy in a more focused
and sophisticated manner, we must begin to distinguish among
various forms of dependency. As noted earlier, unlike biological
dependency, economic, psychological, and emotional depen¬
dencies are not generally understood to be universally experi¬
enced. This distinction suggests that these forms of dependency
 THE AUTONOMY MYTH
38

may appropriately be treated differently than forms that are

considered inevitable or developmental. The characteristic of
universality, which indisputably accompanies inevitable de¬
pendency, forms a theoretical basis upon which to construct a
claim that society as a whole must respond to the situation of the
inevitable dependent.
The universal nature of inevitable dependency is central to
the argument for the imposition of societal or collective respon¬
sibility.8 The realization that this form of dependency is inher¬
ent in the human condition is the conceptual foundation upon
which can be built a claim to societal resources on the part of the
caretakers of inevitable dependents, in order to facilitate then-
care. Justice demands that society recognize that caretaking
labor produces a good for the larger society. Equality demands
that this labor must not only be counted, but also be valued,
compensated, and accommodated by society and its institutions.
Society has not, however, responded to the caretaker by
counting, valuing, compensating, or accommodating her care¬
taking. Instead of a societal response, inevitable dependency has
been assigned to the quintessential^ private institution—the
traditional, marital family. As discussed more fully in part two,
the marital family is an institution that has been considered to
occupy a “separate sphere.” It is conceptualized as placed be¬
yond and protected from intervention by the state. Dependency,
through its assignment to the private, marital family, is hidden—
privatized within that family, its public and inevitable nature
concealed.
Our attitude toward family follows scripts rooted in historic
and, therefore, contingent ideologies, particularly those of patri¬
archy and capitalism. It is naturally assumed that the family is
the repository for dependency and that collective societal re¬
sponsibility is therefore unwarranted.and inappropriate. The
family assigned this essential societal task is also believed to have
a “natural” form. It is organized legally as though reproductive
 DEPENDENCY ^ND SOCIAL DEBT 39
r

biology necessarily determined the social organization of the

family unit. The core of the family in policy is the heterosexual
couple, formally united in marriage.
In addition, and consistent with the policy of privatizing de¬
pendency, the economic resources necessary for undertaking
caretaking tasks are to come from the family. Historically the
breadwinner (the spousal complement to the caretaker) pro¬
vided these resources. Through such complementary gendered
arrangements, each individual private family was ideally and
ideologically perceived as able to assume responsibility for its
own members and their dependency. A need to call on collective
resources, such as welfare assistance, has therefore been consid¬
ered a family as well as an individual failure.
Consider how this plays out in the debates about child care
for working parents. The current child-care system is not de¬
signed to provide affordable child care for all working families,
but simply to promote the self-sufficiency of poor families.9 The
language of the recent reforms is consistent with maintaining
the myths of self-sufficiency and autonomy by requiring that
families, in order to continue receiving aid, be engaged in activ¬
ities that will lead to their self-sufficiency.10 Even President
Bush’s support for maintaining the funding for Temporary Aid
to Needy Families (TANF) is driven by the ideal of “the great
soul of America.”11 He feels that TANF will be the tool that will
help needy families get into, and stay in, the workforce. He con-
sequendy aims to have over 70 percent of welfare recipients be
self-sufficient within five years.12
Even those who agree that the societal role of families is
evolving with the current capitalistic market insist that there is
no child-care crisis and that government intervention will only
lead to an institutionalized form of child care.13 Their solution is
to let the market evolve to suit the needs of society.14 These com¬
mentators are very instrumental in their approach and hold on
to myths of independence and self-sufficiency, which create a
40 THE AUTONOMY MYTH

stigma regarding welfare and welfare recipients. Essentially, the

libertarian argument against child-care subsidies is that the cur¬
rent situation is what the market is willing to bear, and that peo¬
ple are willing to accept these conditions. Even commentators
who feel that there should be no stigma surrounding depen¬
dency feel that the goal of programs such as TANF should be to
help recipients achieve self-sufficiency.15
What is seldom mentioned in media and public discussions
are the racial and class implications of this system. In thinking
about the privatization of dependency and the role of the fam¬
ily, our history of racism should also be a relevant and expressed
context for debates. Women who work outside the home need to
make child-care arrangements—arrangements that typically
entail the employment of other women to do that care. But con¬
sider the nature of this work, which while it occurs in the paid
labor force also too often merely substitutes for unpaid family
labor at the exploitation of a woman of a different race and
class, who is paid low wages and given few, if any, benefits.16
Since the resources for child care come from the family, wages
are depressed, as family resources are needed for provision of
other basic goods and services. Ironically, a good deal of the
training for work that is occurring in the wake of welfare reform
is for positions in child care.

III. DEPENDENCY AND CHOICE

People operate in society, expressing preferences as structured

by and through existing societal institutions. Choices are made
in social relations that reflect long-standing cultural and social
arrangements and dominant ideologies about gender and gen¬
der roles. I he beliefs about the appropriateness of arrange¬
ments function at an unconscious (and therefore unexamined)
 DEPENDENCY £ N D SOCIAL DEBT 41
r

level. Our notions of what are “natural” behaviors channel our

beliefs and feelings about what are considered appropriate insti¬
tutional arrangements. We know what constitutes the good
mother, the ideal husband, and the perfect marriage. When in¬
dividuals act according to the scripts culturally crafted for these
roles, consistent with prevailing ideology and institutional
arrangements, we may say that they have chosen their own path.
Choice is problematic in this regard. Ideology and beliefs limit
and shape what are perceived as available and viable options for
all individuals in a society.
The notion that it is an individual choice to assume responsi¬
bility for dependency work and the burdens it entails allows us to
ignore arguments about our general responsibilities. Choice
trumps any perceived inequity and justifies maintenance of the
status quo. We ignore the fact that choice occurs within the con¬
straints of social conditions, including history and tradition.
Such conditions funnel individual decision making into pre¬
scribed channels, often operating along practical and symbolic
lines to limit and close down options.
Women historically have been identified with the role of
mothering, and presumed to have the responsibility for chil¬
dren.17 Women who choose not to have children are seen as hav¬
ing made a nontraditional, even unnatural choice.18 Even when
women choose to have children they are expected to care for
their children at home.19 Negative media attention to alternative
modes of child care, such as placement with nannies or day-care
facilities, has instilled a fear in many people that only parents
can properly, safely, and conscientiously raise a child. In the cul¬
tural context that places caretaking primarily on mothers, this
creates further pressure for women to stay at home and raise
their children.1111 Even the public school system is structured in a
way that is not consistent with families in which women work.
The structures remain even though the historic assumption that
42 THE AUTONOMY MYTH

most mothers remain at home to take care of their children after

school and during holidays is no longer valid.21
Whenever we use individual choice as a justification for ig¬
noring the inequities in existing social conditions concerning de¬
pendency, we also fail to recognize that, quite often, choice of
one status or position carries with it consequences not antici¬
pated or imagined at the time of the initial decision. We assume
that people who are derivative dependents (caretakers or moth¬
ers) voluntarily assume that status—they “consent”—but we fail
to ask why and how is it that only some in our society are asked
to undertake the sacrifices that caretaking entails. Further, even
if we may say that a woman “chose” to become a mother (socie¬
tal and family pressures aside), does this choice mean she also
has consented to the societal conditions accompanying that role
and the many ways in which that status will negatively affect her
and her children’s economic prospects?
A resort to individual choice should not be the end of the
matter if what we are seeking is social justice or fairness. Even if
someone does “consent” in the sense of taking risks or forgoing
opportunities to undertake dependency work, should that let so¬
ciety off the hook? Should society tolerate the situation of de¬
pendency within the family and the mandated personal
sacrifices a caretaker typically encounters under current societal
arrangements? In other words, are some conditions just too op¬
pressive or unfair to be imposed by society even if and when an
individual openly agrees to or chooses them?
In response to the argument that caretakers should be com¬
pensated for their labor, I have been struck by two contempo¬
rary and quasi-economic retorts based, on the idea of choice. I
refer to one as the “Porsche preference.” This argument states
that if someone prefers to have, a child, this preference should
not be treated differendy than any other choice (like the choice
to own a Porsche). Society should not be responsible for subsi-
 DEPENDENCY AND SOCIAL DEBT 43
*

dizing either preference—if you can afford to own a Porsche or

have a child, fine, but you can’t expect the rest of us to chip in.
I do not accept the basic premise that children are merely an¬
other commodity. The nature of children hopefully distin¬
guishes the choice to reproduce from the whims of the auto fan.
Further, it seems to me that a decision to have a child sets up a
qualitatively different relationship between the decision maker
and the collective or state. As I argue in the next section of this
chapter, caring for dependents is a society-preserving task—care
of children in particular is essential to the future of the society
and all of its institutions. It is a different sort of “preference,”
providing a social good as well as individual satisfaction.
Responding to this type of reasoning, some have argued that
the consumption of Porsches is also essential to society. Con¬
sumption leads to jobs and the creation of stockholder wealth,
just like a preference for children.22 Accepting only for argu¬
ment’s sake the troublesome premises of this kind of argument
through analogy, it seems clear that the appropriate comparison
is not between the consumers of children and of Porsches, but the
producers of children and of Porsches. If we make that kind of
comparison, my arguments for subsidy for caretakers are sup¬
ported by the analogy. The producers of Porsches are subsidized
(heavily) through regulatory measures, such as tariff and tax
policy and labor regulations, as well as directly, such as when
communities bid for location of plants or lawmakers slash taxes
and make investments in services to entice businesses with
roaming eyes.
Further, when we think of just who are the consumers and
who are the producers for purposes of comparison, it is impor¬
tant to remember that the government and the market are the
consumers for the products of caretaking labor. And they are
not paying a fair price; in fact, they are paying very little.23 Not
subsidizing the caretaker in this kind of comparison is the
44 THE AUTONOMY MYTH

equivalent of the consumer’s stealing the Porsche that its manu¬

facturer so lovingly created and skillfully constructed.
The second argument about choice is also framed in eco¬
nomic terms. I label this the “efficiency as exploitation” excuse
for not requiring society to pay a fair share of the necessary care
work. This argument is really nothing more than the assertion
that if caretakers allow themselves to be exploited—unpaid or
underpaid—then this must be the most “efficient” solution. Vol¬
untary assumption of the costs of caretaking and dependency
should not be disturbed.
Sometimes this is expressed as simply the result of women’s
having a greater “preference” for children; as such, they are will¬
ing to make other sacrifices—that is simply what the market will
bear. Aside from creating situations that negatively affect society
overall, a free market in care work is not working. It has resulted
in poverty, which generates other social ills. I think the implica¬
tions of this laissez-faire approach to important issues of social
policy also demonstrates how little economics has to offer to
considerations of justice.

IV. THE DEPENDENCY DEFICIT-A SOCIETY IN DEFAULT

As it now stands in this society, derivative dependents are ex¬

pected to get both economic and structural resources within the
family. The market is unresponsive and uninvolved, and the
state is perceived as a last resort for financial resources, the
refuge of the failed family. A caretaker who must resort to gov¬
ernmental assistance may do so only‘<if she can demonstrate,
through a highly stigmatized process, that she is needy.

A. Deficit
Unfortunately, in many situations, peither the economic nor the
structural supports for caretaking are adequate. Within families,
 DEPENDENCY AND SOCIAL DEBT 45
A . „

r
caretaking work is unpaid, expected to be gratuitously and un¬
complainingly supplied. Even when non-family members, such
as nannies or nurses, supply caretaking labor, the family remains
primarily responsible for the care. Furthering the assumption
that this type of work is not valuable, the wages are supplied
from family funds, not through social subsidies, ensuring that
the pay remains low.24
In some atypical instances, employers offer a more communal
approach to caretaking or the state assumes some responsibility,
such as with company-sponsored child care or home health aids
provided by public funds. However, such nonfamily assistance is
not compelled (and in fact is contradicted) by our understanding
of who is responsible for dependency. This sort of assistance is
viewed as “generous,” an unexpected benefit supplementing the
primary responsibility of the family.
If we measure success by poverty statistics, it seems clear that
many families are failing in their socially assigned task as the
repository for dependency. Many caretakers and their depend¬
ents find themselves impoverished or severely economically
compromised even if they are operating within the context of a
marital family. Suzanne W. Helburn and Barbara R. Bergmann
illustrate that even with both parents working full-time at mini¬
mum wage, taking into consideration the required poverty-line
expenditures, they are unable to pay the cost of licensed child
care.25 As can be expected, single working mothers have an even
more difficult time making ends meet and providing for child
care than families with two adults present.26
For others, divorce or the death of a primary wage earner can
prompt an economic freefall into poverty. Some women in these
situations are in worse positions than women who remain single,
since they have cut back on their career commitments as a result
of the partnership, to raise children or to allow the partner to
advance his career.27
Even families that “conform,” in that they are both intact and
46 THE AUTONOMY MYTH

economically self-sufficient, are often suffering a crisis either in

caretaking or from work demands, or both. Most two-parent
households must send both parents into the workforce in order
to make ends meet, all at the cost of quality time spent with their
children.28 In some two-parent households the child care or
after-school care is designated to one parent, and the other par¬
ent spends less time with the child or children.29

B. Assessing the Costs of Care

Direct costs associated with caretaking burden the person doing
the dependency work. Caretaking labor interferes with the pur¬
suit and development of wage labor options. Caretaking labor
saps energy and efforts from investment in career or market ac¬
tivities, those things that produce economic rewards. There are
foregone opportunities and costs associated with caretaking.
Even caretakers who work in the paid labor force typically have
more tenuous ties to the public sphere because they must also
accommodate care taking demands in the private.30
In addition, there are psychological or spiritual costs resulting
from the attenuated and compromised relationships a caretaker
is forced to have with both the market and family (if she works in
both), or from the need to choose, thus sacrificing one to gain
the other.31 The caretaker is caught within social configurations
and institutional arrangements that are unjust.
Further, most institutions in society remain relatively unre¬
sponsive to innovations that would lessen the costs of caretaking.
Caretaking occurs in a larger context, and caretakers often need
accommodation in order to fulfill^ multiple responsibilities. For
example, many caretakers also engage in market work.32 Far
from structurally accommodating or facilitating caretaking,
however, workplaces operate in .modes incompatible with the
idea that workers also have obligations for dependency. Work¬
place expectations displace the demands of caretaking—we as-
 DEPENDENCY AND SOCIAL DEBT
47
r
sume that workers are those who are free to work long and regi¬
mented hours. These costs are not distributed among all ben¬
eficiaries of caretaking (be they institutional or individual).
Unjustly, the major economic and career costs associated with
caretaking are typically borne by the caretaker alone.33 If she is
lucky, the caretaker is able to persuade her partner in the private
family to share the costs with her, spreading them out a bit. But
the costs remain confined to the family in a world where market
institutions assume workers are unencumbered by family and
dependency, and the government assumes that (functioning)
families provide for basic needs.
There are penalties that dually responsible workers currently
suffer, while market institutions are relieved of responsibility for
dependency. It is important to note here that while caretaking
remains gendered in practice, it is the caretaking itself, not the
gender of the caretaker, that is inherently disadvantageous in
our system. When men do care work, they also suffer costs. It is
the caretaking itself that institutions are free to punish. These
penalties must be removed, and there must be a more equitable
distribution of responsibility for dependency among the pri¬
mary societal institutions of family, market, and state.

C. Default—Accruing a Social Debt for Social Goods

I argue that caretaking work creates a collective or social debt
and that each and every member of society is obligated by this
debt. Furthermore, this debt transcends individual circum¬
stances. In other words, we need not be elderly, ill, or children to
be held individually responsible. Nor can we satisfy or discharge
our collective responsibility within our individual, private fami¬
lies. Merely being financially generous with our own mothers or
duly supporting our own wives will not suffice to satisfy the share
of the societal debt we generally owe to all caretakers.
My argument that the caretaking debt is necessarily a collec
48 THE AUTONOMY MYTH

tive one is based on the fact that biological dependency is a uni¬

versal and inevitable phase in the human condition and, there¬
fore, is of necessity a collective or societal concern. Individual
dependency needs must be met if we, as individuals, are to sur¬
vive, and our aggregate or collective dependency needs must be
met if our society is to survive and perpetuate itself. The man¬
date that the state (collective society) respond to depen-dency,
therefore, is not a matter of altruism or empathy (which are in¬
dividual responses often resulting in charity), but is a matter that
is primary and essential because such a response is fundamen¬
tally society preserving.
If infants or ill persons are not cared for, nurtured, nourished,
and perhaps loved, they will perish. We can say, therefore, that
they owe an individual debt to their individual caretakers. But
the obligation is not theirs alone—nor is their obligation con¬
fined only to their own caretakers. Social justice demands a
broader sense of obligation. Without aggregate caretaking there
could be no society, so we might say that it is caretaking labor
that produces and reproduces society. Caretaking labor provides
the citizens, the workers, the voters, the consumers, the students,
and others who populate society and its institutions. There are
essential tasks to be performed in every society that are legiti¬
mate state concerns. One of these is the response to depen¬
dency.35 The fact that biological dependency is inherent in the
human condition means that it is of collective or societal con¬
cern.
Society-preserving tasks, such as dependency work, are com¬
monly delegated. The delegation .is accomplished through the
establishment and maintenance of social institutions. For exam¬
ple, the armed services are established to attend to the collective
need for national defense. But delegation is not the same thing
as abandonment. The armed services are structured to be the
responsibility of both some designated members (volunteers or
draftees) and all members of society (taxpayers and voters).36
 DEPENDENCY AND SOCIAL DEBT 49
A . #

r
This dual and complementary responsibility is consistent
with our deeply held beliefs about how rights and obligations
are accrued and imposed in a just society: societal obligations
have both an individual and a collective dimension. Certain
members of society may volunteer, be recruited, or even be
drafted for service, but they have a right to be compensated for
their services from collective resources. They also have a right to
the necessary tools to perform their assigned tasks and to guar¬
antees that they will be protected by rules and policies that facil¬
itate their performance. Caretakers should have the same right
to have their society-preserving labor supported and facilitated.
Provision of the means for their task should be considered the
responsibility of the collective society.

V. THE RHETORIC OF SUBSIDY AND SELF-SUFFICIENCY

In popular and political discourse, the idea of “subsidy” is the

equally stigmatized companion to dependence, the opposite of
the ideal of self-sufficiency. In fact, dependency is assumed if an
individual is the recipient of certain governmental subsidies,
such as welfare. The specter of dependency serves as an argu¬
ment against subsidies in the form of governmental social wel¬
fare transfers. Policymakers, who argue for the goal of
independence, favor the termination of subsidy so the individ¬
ual can learn to be self-sufficient.
But a subsidy is nothing more than a process of allocating col¬
lective resources to some persons or endeavors rather than other
persons or endeavors, because a social judgment is made that
they are in some way “entided” or that the subsidy is justified.37
Entitlement to subsidy is asserted through a variety of consider¬
ations, such as the status of the person receiving the subsidy,
their past contribution to the social good, or their need. Often, a
subsidy is justified because of the position the subsidized group
 THE AUTONOMY MYTH
5°

holds or the potential value their endeavors have for the larger
society. Sometimes the benefits we receive are public and finan¬
cial, such as direct governmental transfer programs to certain
individuals or business entities, such as farmers or sugar grow¬
ers.38 Public subsidies can also be indirect, such as the benefits
given in tax policy.39 Private economic subsidy systems work in
the forms of foundations, religions, and charities.

A. Types of Subsidy
Typically, a subsidy is thought of as the provision of monetary
or economic assistance. However, a subsidy can also be deliv¬
ered through the organization of social structures and norms
that create and enforce expectations. A subsidy can also be non¬
monetary, such as the subsidy provided by the uncompensated
labor of others in caring for us and our dependency needs as in¬
dividuals, as well as members of a larger dependent society. Tak¬
ing this observation into account, along with the ideas of
inevitable and derivative dependency, it seems obvious that we
must conclude that subsidy is also universal. We all exist in con¬
texts and relationships, in social and cultural institutions, such as
families, which facilitate, support, and subsidize us and our en¬
deavors.
In complex modern societies no one is self-sufficient, either
economically or socially. Whether the subsidies we receive are fi¬
nancial (such as governmental transfer programs or favorable
tax policy) or nonmonetary (such as the uncompensated labor of
others in caring for us and our needs), we all live subsidized lives.
In fact, all of us receive both (orms of subsidy during our
lives. 1 hose who adhere to the myths.'of autonomy and inde¬
pendence must recognize that the uncompensated labor of
caretakers is an unrecognized subsidy, not only to the individu¬
als who directly receive it but, more significandy, to the entire so¬
ciety. yV
 DEPENDENCY AND SOCIAL DEBT
* • . 51

The interesting question is why some subsidies are differenti¬

ated and stigmatized while others are hidden. Subsidies to
market institutions and middle-class families are called “invest¬
ments,” “incentives,” or “earned rewards” when government
supplies them, but deemed “gifts,” “charity,” or the product of
“familial love” when they are contributions of caretaking labor.
The actions of our government thus far reflect the inconsistent
and hypocritical stance taken with regard to subsidy. The family
is to be self-sufficient, but the situation of others is viewed sym¬
pathetically.

B. Subsidy and Politics—Contemporary Comparisons

Curiously, the negative stigma of subsidy reflected in its com¬
panionship with dependency does not carry over to the rhetoric
surrounding corporate welfare, or subsidies to businesses or in¬
dustries. Corporate welfare, or state action that benefits a spe¬
cific firm or sector, may take the form of grants, tax breaks, real
estate, loans, or government service. Robert B. Reich, President
Clinton’s labor secretary, documents the emergence of business
subsidies and bailouts in New Deals: The Chrysler Revival and the
American System. The congressional bailout of Chrysler Corpora¬
tion in 1980 marked the beginning of a series of outright rescues
of American mega-firms that included Lockheed, railroad com¬
panies, and, at the end of the 1980s, the savings and loan in¬
dustry.
Policy leaders have come to take for granted the necessity of
assistance to large corporations. By the 1990s, this amalgam ol
cash payments, special rules, and tax subsidies totaled some¬
where between $30 and $100 billion a year.
These subsidies exist in various forms, but exemplify a politi¬
cal and rhetorical acceptance for government intervention on
behalf of American firms. This goes beyond the motto “what is
good for General Motors is good for the country.” In fact, Reich
52 THE AUTONOMY MYTH

traces this conception of assistance to a nineteenth-century law¬

yer, Jay L. Torrey. Torrey urged Congress to accept an analogy:
“When a vessel is labouring git sea, nothing will more surely sink
her than to leave untouched the broken masts and loose spars
which every wave is using as a battering ram to pound her to
pieces and carry her to the bottom.”40 This influential compari¬
son resulted in reforms in bankruptcy law, and ultimately an ac¬
ceptance of state assistance for firms deemed to be too valuable
to be let go under. Ironically, this sympathy for the firm arose dur¬
ing a time of “tough love” (or worse) for the American family.
The same politicians who seem to be out of touch with the ac¬
tual situation of welfare recipients by insisting on their self-
sufficiency41 choose to disregard these myths when it comes to
matters such as the farm subsidy.42 These conflicting concepts of
autonomy and subsidy were highlighted recently when, on the
very same day that certain Democratic senators joined with Re¬
publicans in proposing stricter requirements for welfare recipi¬
ents, the House of Representatives passed a bill that would
provide large subsidies to America’s farms.43 The language used
in each case is revealing: the agricultural bill is named the Farm
Security and Rural Investment Act, and ironically was described
by President Bush as establishing a “reliable safety net for our
Nation’s farmers and ranchers.”44 The president emphasized
that the act would provide the “support” that “ [h] ardworking
. . . farm and ranch families” deserve. Obscenely, because the
House voted down a motion that would cap payments at
$275,ooo a year per farmer, the result is that three-quarters of
the subsidy payments will go to the largest and richest 10 percent
of farmers—in other words, to agribusihesses, not to the “hard¬
working farm and ranch families” who deserve support.45
On the same day, a dozen Democratic senators “declared that
Congress must adopt ‘tougher work requirements’ ” so that by
2007, 70 percent of welfare recipients must be engaged in work
 DEPENDENCE AND SOCIAL DEBT 53

and other supervised activities, an increase from the current re¬

quirement of 50 percent.46 Unlike the Farm Bill undertaken ear¬
lier, welfare reform does allow states to cap their payments, so
that if a child is born to a mother already receiving welfare pay¬
ments, she will not receive any additional funds to support and
feed that child.47 For example, New Jersey has implemented a
system whereby a woman on welfare receives a basic $488 per
month with an additional $64 for each child. But if a woman on
welfare gets pregnant and has a child while receiving assistance,
she receives no additional cash allotment for the new baby.48 It
was argued that to provide the funds would create an incentive
for reproduction.

VI. CONCLUSION

The societal arrangement whereby dependency was the respon¬

sibility of the private family may have made some sense when
marriage provided (and assumed) a certain population for the
family. If we have both a caretaker and a wage earner who make
differentiated but complementary contributions—one provid¬
ing the caretaking and emotional resources, the other the mate¬
rial necessities—then perhaps dependency can be handled
within this family. But what about the situation of millions of
families that do not conform to that (some would say antiquated)
ideal? And what about the costs to individuals within families
that do conform—the losses of opportunity and access because
of the burdens of caretaking? Further, what about the responsi¬
bility of the rest of us—society and its institutions? How is it just
that we appropriate the labor of caretakers and refuse to con¬
tribute a fair share of the burdens associated with that care?
The myths about autonomy, independence, and self-
sufficiency both for individuals and for families have only been
54 THE AUTONOMY MYTH

able to flourish and perpetuate themselves because dependency

has been hidden within the family. When certain families reveal
the fallacy of the assumption that they can adequately manage
their members’ needs, we do not reexamine the premises, but
demonize those families as failures. Therefore, those in need of
economic assistance are viewed as deviating from the stated
norm of independence and self-sufficiency. It is time to rethink
“subsidy,” as well as “autonomy” and “dependency.”
If caretaking is society preserving, and therefore productive,
work, the political and policy questions should focus on an opti¬
mal reallocation of responsibility for dependency across societal
institutions. Reallocation in this scheme may be provided
through economic transfers to caretaking units, as well as by the
provision of structural supports that accommodate caretaking
responsibilities within workplaces so that those who both work
for wages and work for love or duty do not have to compromise
one to do the other.
In chapter ten I build upon these suggestions. In the section
that follows I explore the rhetoric of marriage in policy dis¬
course by focusing on adherents to the civil society movement,
often called “communitarians.” I also look at the roles assigned
to marriage and the marital family and ask what functions mar¬
riage, per se, actually performs and which of those functions
should be considered essential and appropriate for our diverse
and secular state.

\
 Part Two

Institutionalizing Autonomy
 «

%
 Existing Societal Arrangements

T 1 he significance of the family as a societal construct is re¬

vealed by its position as a primary terrain for the cultural wars in
which our society is increasingly mired. The chapters in this sec¬
tion look at the relationship between our legal and policy under¬
standings of the family and our concepts of autonomy and
independence. An essentialized, traditional notion of the family
supports a static set of cultural, social, and economic relation¬
ships, most significandy confining responsibility for dependency
to the local and intimate levels of society. The stakes are very
high for those who want to maintain the status quo and not dis¬
turb the role of the family as the primary repository for depend-
ency—a role that alleviates other societal institutions from
assuming any responsibility in that regard.
This section develops the argument that it is not only the indi¬
vidual but also the family that is cast as ideally independent in
our scheme of things. The autonomy of the family is assumed in
discussions placing it on a different plane than other societal in-
58 THE AUTONOMY MYTH

stitutions. In this regard, society is often presented as though it

were constituted by “separate spheres.” The “public” and the
“private” spheres are cast ds complementary social spaces, each
connoting a distinct area of human interest and activity. Within
this scheme of division, the family represents the quintessen-
tially private institution, separated from the market and its func¬
tions, on one hand, and the quintessentially public state, on the
other. In this sense, the family is perceived as autonomous, with
some of its members having overlapping interaction with the
public sphere. This family/state model can be diagrammed thus:

SOCIETY

Diagram 1.1 = individual; H = husband; W = wife; C = child. The config¬

uration of the Family drawn here is that of the common law, in which the
Husband was the head of the Family and owed obedience and ser¬
vices by Wife and Child. The common-law Family was hierarchical and
patriarchal.
 EXISTING SOCIETAL ARRANGEMENTS 59

Not only is the family perceived as occupying the private

sphere, it is also conceptualized as embodying values and norms
that are very different from those of the institutions occupying
the public sphere, particularly those of the market. Family rela¬
tionships are cast as different in function and form than rela¬
tionships existing in the public world. According to this
conceptualization, families are altruistic institutions held to¬
gether by bonds of affection. A division of the world into “pub¬
lic” and “private” realms also indicates that the family is defined
as both separate and necessary for achieving a balance or whole¬
ness.
The notion that the family is private and separate has had a
tremendous impact on the way the law has developed. Ongoing
family functioning has been shielded from outside scrutiny
through the legal doctrine of family or entity privacy. However,
it would be a mistake to think that the conceptual organization
of “separate spheres” means that the marital family exists out¬
side of the regulatory reach of the government and its laws, co¬
cooned within the protection of the family privacy doctrine.
If we look at the family from the perspectives of its formation
as a legal entity through marriage, and its dissolution as a legal
entity through divorce, it is clear that the family has always been
heavily regulated by the state. What have historically been
deemed private were the day-to-day interactions of an existing,
legally defined, and recognized family. But it is the state through
its regulation and recognition of the status of marriage that
brings the family into legal existence.
The three chapters in this section address the institution of
marriage from different perspectives. The “traditional’ family is
built around this institution. The law tells us who may marry
and, in so doing, defines the circumstances under which a sexual
union and its offspring will be considered legitimate and entided
to the special treatment afforded the marital family in our soci¬
ety. Once the marriage is established, the state must be a party to
6o THE AUTONOMY MYTH

its dissolution; it dictates the terms under which divorce may

occur and under which property and ongoing economic respon¬
sibility for the ex-spouse or children may be allocated.
We may speak of a marriage “contract,” but it is a contract in
which the state is an active party, defining the terms and conse¬
quences for the other parties—husband and wife. Until the in¬
stitution of the prenuptial agreement, which occurred only
recently, men and women entering the institution of marriage
were not free to make individualized agreements about the
terms and consequences of their relationship. Marriage rules
concerning the character of property and support obligations
applied to all couples at divorce. These rules were more than
mere default. State-imposed rules defined the responsibilities
and consequences attached to marriage and structured the rela¬
tionship between husband and wife. Individuals were unable to
make a legally enforceable alternative to the state rules.
Further, as the discussion in chapter two indicates, any serious
consideration of the marital or traditional family in America
must also consider its public and essential function with respect
to dependency.1 Expectations for family responsibility for de¬
pendency relieve the state of some obligations it might other¬
wise have to assume. This section demonstrates that thinking
of the family as manifesting a separate sphere facilitates this
arrangement.
While it is true that law initially defines the family, controlling
entry into the privileged status, once it is formed and given con¬
tent, the family is a powerful construct. Family has symbolic sig¬
nificance to many groups within society and can be manipulated
by politicians and others with ideological objectives to mobilize
a variety of constituencies. In addition, perceived family
strengths (or weaknesses) can be utilized to place pressure on po¬
litical institutions. The adjustments and accommodations that
may result can alter the very nature of the state’s relationship to
the family and the individual.
 EXISTING SOCIETAL ARRANGEMENTS 6l
* • -

The family is currently subsidized on both a material and a

cultural level in its traditional, preferred (marital) form. Sup¬
porters argue the legitimacy of allocating public resources to the
marital family. Such subsidy is facilitated and enhanced by the
symbolic position the preferred family has in political rhetoric
and American ideology. One implication of this preference for
the marital family form is the demand for access to marital sta¬
tus by those who are in unions that do not conform to the ideal
form. The more favored the preferred family is, the more pres¬
sure is generated from outsiders to the institution demanding
entry into or expansion of the subsidized family category.
Because of the interactive relationship between the family
and other institutions within society, it is much more accurate to
view the family not as existing in or constituting a separate
sphere, but rather, as being a constructed institution contained
within the larger society. As such, the extent and functioning of
other societal institutions profoundly affects the nature and
shape of the family. By the same token, the nature and function¬
ing of the family profoundly affects other societal institutions,
particularly the state. This interrelationship is more fully ex¬
plored in chapter eight on the social contract. It is diagrammed
on the next page.
The metaphor of “symbiosis”2 seems more appropriate to
describe this model of the family in relationship to the state than
does the separate spheres imagery. The family is located within
the state—family and state are interactive and define one an¬
other. Alterations in the scope or nature of one institution will
correspondingly alter the scope or nature of the other.
Note also in this diagram that there is an outermost ring la¬
beled “society.” This reflects a recognition that the state as I per¬
ceive it does not occupy the entire social space. Of course, the
state may contract or expand, and this process will inevitably
have an impact on those “voluntary arrangements or struc¬
tures that coexist in this relatively unregulated space. It is this
62 THE AUTONOMY MYTH

SOCIETY

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Diagram II. The Family depicted in this diagram is the egalitarian fam¬
ily the modern version of the marital arrangement in which Husband
and Wife are viewed as equals and the Child has an elevated, if some¬
what subservient, position. Within the larger society, the Family coex¬
ists with market and nonmarket institutions, some having greater
impact on the family than others. Voluntary and private institutions,
such as religion, can and do have effects on specific, individual Family
units, but it is the more structured and dominant institutions the ones
we cannot avoid or opt out of that must be part of a comprehensive
consideration of the Family and its place in society. Here I am referring
to the relationship between Family and;S.tate, but later chapters ad¬
dress the market, which is most certainly a dominant societal institu¬
tion with which the Family must deal. The line drawn around the Family
is the demarcation of family privacy, which sets the entity apart from
other societal institutions. It is porous ,since, in the egalitarian family, the
state will intervene to prevent abuse or neglect. In the common-law ver¬
sion of the Family, the privacy line would be more intact.
 EXISTING SOCIETAL ARRANGEMENTS 63
tr
space that is occupied by organizations such as religious or phil¬
anthropic entities. However, in this book I am concerned with
those institutions that are clearly contained within and defined
by the state. It is those institutions that are correctly understood
as “coercively constituted,” in that they are creatures of the
state. While law may affect voluntary entities, it is those institu¬
tions, such as the family and the market, that are actually cre¬
ated and constituted as coherent institutions through law. Their
very existence as objects of state regulatory concern comes
into being through law: it is law that gives them consequence
and meaning even outside of the wishes or demands of their
members.
Of course, these various state-constructed entities may spill
over into the voluntary field. There is a well-developed sense of
family in religion, for example. So, too, individuals and groups
outside of the regulated space may clamor for entry into it, will¬
ing to trade the freedom of nonlegal status for the benefits of the
legal and privileged institutional form. Such overlapping inter¬
est on the part of the coercive and voluntary realms in regard to
an entity such as the family might provide an occasion for ten¬
sion, even for transformation or adjustment in state rules. In this
way these coercive institutions are potentially dynamic in na¬
ture. The state has the authority and power to monitor (or im¬
pede) their transformations.
If this model of the family/state relationship is accurate, it
has important implications for public policy. In the first instance,
it indicates that the family’s relationship to the state is not fixed
or static. State policies can profoundly affect the form and func¬
tioning of the family. Correspondingly, if the family is con¬
structed through interaction with the state and society, the
family cannot be posited as a “natural entity with a form that is
constant over time and culture. Nor can a preferred family for m
be assumed essential to family functioning, such as caring for
children or providing emotional and psychological support lor
64 THE AUTONOMY MYTH

members. Instead, the state defines the nature of the preferred

family as a political matter. Definitions of what constitutes a fam¬
ily can change, and perhaps will inevitably change, in response
to political and social pressures.
Altered state regulation, support, and subsidy for the pre¬
ferred family may affect that family; it may empower it or create
tensions and pressures that lead to demands for accommodation
or regulation of other institutions with which the family inter¬
acts. Changes in the family can spur changes in other societal in¬
stitutions, such as the workplace. As a societal institution within
the state, the family competes with other institutions for alloca¬
tion of state resources, including political and ideological capi¬
tal. Since other societal institutions are also inherently state
constructs, existing in law and grounded in state regulatory au¬
thority, the state, acting through law, can mandate accommoda¬
tion and change in those institutions.
In the chapters in this section, I first look at the treatment of
the marital family undertaken by those adhering to a “tradi¬
tional” perspective. The marital family is used in an ideological
manner, exemplified here by communitarians seeking to
strengthen the institution.
In discussing the communitarian position, as contrasted with
the libertarian position, Amitai Etzioni expresses the move¬
ment’s commitment to values that would be considered “pro¬
gressive” in most circles:

[Cjommunitarians (at least the more enlightened among them)

favor new communities, in which all members have the same basic
moral, social, and political standing. In.these communities, values
are reformulated and policies evolve in a free dialogue and ex¬
change in which ideally all participate, and particular groups do
not impose their values. Whereas traditional communities were
often homogeneous, new communities seek a balance between di-
 EXISTING SOCIETAL ARRANGEMENTS 65
P

versity and unity. As Gardner notes: “To prevent the wholeness

from smothering diversity, there must be a philosophy of plural¬

ism, an open climate for dissent, and an opportunity for subcom¬

munities to retain their identity and share in the setting of larger

group goals.”3

I choose this group rather than the “easier” targets of the

Southern Baptists or the Promise Keepers (which are discussed
in chapter four) because it is important to realize how deep the
ideological commitment to the institution of marriage runs. Its
mere existence as an option for the organization of one’s inti¬
mate life impedes the imagination of theorists, limiting and di¬
recting approaches to social problems even for those truly
concerned with children and poverty. Even “progressive” re¬
formers and politicians stress the centrality of the heterosexual
marital relationship in their visions for a just society. Marriage is
positioned as the primary affiliating circumstance, the core fam¬
ily relationship in these discourses.
Those who cling to the norm of the traditional, heterosexual
marital unit often conclude that the nuclear family is in “crisis”
because of the tendency of many marriages to disassemble and
dissolve. Some in the “crisis camp” further claim that society is
also in a state of crisis as a result of the instability in the institu¬
tion of marriage.4 Others are concerned by the crisis they per¬
ceive in increasing visibility of “deviant” relationships, such as
nonmarital heterosexual cohabitation and same-sex relation¬
ships. These are entities that “compete” with marriage, and
many in such relationships are claiming that their sexual affilia¬
tions are entitled to the benefits and privileges previously ex¬
tended only to marriage.
I think the sense of crisis resulting from increasing diversity in
family formation is unwarranted. Not only can the form of the
preferred family constructed within our (or any) society be re-
66 THE AUTONOMY MYTH

configured, it has been reconfigured in the past to reflect evolv¬

ing and different sets of expectations and aspirations. We see
this clearly in the transformation of the marital family from a
hierarchical unit with well-defined gendered roles to the “part¬
nership” between equals expected to share responsibilities
and rights in all areas of life that is described in chapter four.
This transformation indicates just how sweeping the changes in
our beliefs about the institution of marriage can be and have
been.
Chapter five looks at the marital family from a functional per¬
spective, raising the question of how the changing nature of
family roles and relationships between husbands and wives
should affect the way we think about the institution of marriage.
A sense of past transformation is the appropriate context for the
current struggle over what will be the form of tomorrow’s pre¬
ferred family. The arguments that family should not be cotermi¬
nous with marriage are not a threat to the family, but rather a
recognition that an intimate entity can function and flourish
even without the marital connection as its core intimate tie.
What I do think constitutes a crisis is the lack of coherent or
serious policy discussion about the process of change in family
form that we are undergoing. We need ways of reflecting upon
and absorbing the changes that are occurring in the wake of al¬
tered patterns of intimate behavior and family formation.
Change has introduced some instability in regard to the institu¬
tion of the traditional marital family, but instability alone does
not constitute a crisis.
We must approach this time (,)f change in a thoughtful and
considered manner, asking what functions we want our families
to perform and how the society and its institutions can assist in
carrying out those responsibilities. Even without the occasion of
far-reaching change that we now encounter, it seems that fami¬
lies and society would benefit from periodic self-conscious re-
flection. We should consider the continued viability and desir¬
ability of historic assumptions about the family as an institution,
as well as debate about directions for the future.
We are at a point where we must accept that the relationship
between marriage and popular conceptions about the family
has changed substantially over the past four or five decades.
This change is reflected in the disengagement of marriage from
the concept of family in many people’s minds. Sexuality is no
longer thought only appropriate when confined to marriage.
Couples live together without marriage, but in marriage-like do¬
mesticity. Reproduction and child rearing have also escaped
from the marriage box, with rising divorce rates and instances of
unwed motherhood, combined with a rise in gay and lesbian
lone parenting, increasing the number of children raised in
single-parent households.
It is time to build our family policy around these emerging
norms, to focus not on form but on the function we want fami¬
lies to perform. Certainly one of the most important functions
assigned to the family is that of caretaking. If we were to con¬
ceive of family as organized around this relationship, we would
model it as seen on the next page.
I also argue that the transformations in our expectations and
aspirations for our families cannot be undone. Families as prac¬
ticing units (as contrasted with legally defined entities) in all like¬
lihood will only continue to change, deviating further from the
traditional form. Those who try to use law to push new and
emerging forms of family into old molds seem doomed to frus¬
tration and failure. Our energy should be turned from obsessing
over the changing nature of marriage to rethinking the expecta¬
tions and assumptions we have for the family of the future.
The new and emerging family may not function in all regards
in the same way as did the traditional marital ideal. However, we
must ensure that family policy addresses the needs of the new
68 THE AUTONOMY MYTH

SOCIETY

Philanthropy

Diagram III. CT = Caretaker; D = Dependent. The categories of H and

W, as well as C, are irrelevant Dependents can be children, the eld¬
erly, the disabled, or others in need of care. The Caretaker may be the
person who is (was) a Wife and mother, or a Husband and father, or
neither of these persons, rather someone outside of the old Family role
models. The significant thing is that this person (or these persons,
since the model is concerned with function, not form) is a Caretaker.
1(H) and !(W) are those adults no longer distinguished by gendered
Family roles based on sex. This would mean that the institution of the
Family would no longer mediate thqse adult relationships. In interac¬
tions with each other, those adults would not be governed by special
Family rules, but by the same rules that apply to all individuals in Soci¬
ety in defining their relationship with the state and with each other, i.e.,
contract, tort, criminal law, property law, and equity would be the bases
for defining interactions with other individuals. Individual privacy would
guard decisions from state interference in regard to sexual and repro¬
ductive matters.
 EXISTING SOCIETAL ARRANGEMENTS 69
r

family so it is able to perform those most important and funda¬

mental tasks the family has historically been assigned. For exam¬
ple, it may be that the new family needs a different form or
amount of societal assistance in undertaking responsibility for
dependency It may be that other societal institutions will have
to adjust to the changes in the family in order to build a coherent
policy. It is clear, however, that some simultaneous reconception
of those other institutions must be compelled by the state in
order to ensure that these institutions respond in ways that ac¬
commodate and facilitate the family in carrying out its societal
responsibilities.
One final diagram is necessary, although as explained in the
postscript it is not my preferred model of state/family organiza¬
tion. This model is one in which the individual exists unmedi¬
ated by the concept of family as a separate, private, and
privileged space within the state (see next page).
70 THE AUTONOMY MYTH

SOCIETY

Philanthropy

Diagram IV. I = Individual; 1(H) = Husband; l(W) = Wife; 1(C) = Child;

l(CT) = Caretaker; 1(D) = Dependent. This particular configuration of
the family is a version of the state unmediated by family. Family is de¬
fined by a line of privacy or nonintervention. An example of this might
be the ancient Spartan system or, a more recent example, the kibbutz
system in Israel.
 Chapter Three

The Family in the Rhetoric of Civil

Society—Privileging Marriage

I. INTRODUCTION

In recent years, commentators concerned with the state of civil

society (“communitarians” or civil societarians) have given their
critique of what ails modern American civilization. The focus
has been on the state of that part of the society defined by them
as nongovernmental institutions and organizations. Mostly pro¬
gressive and liberal thinkers, civil societarians have formed im¬
portant institutions and act as commentators on policy matters.
As well-positioned academics and political and policy advisers,
they have been very politically influential at both the federal and
state governmental levels. The publications of the civil societar¬
ians claim the family as one significant aspect of their policy do¬
main, and set forth its rehabilitation as one of their missions.
Rehabilitation is perceived to be achieved by the preservation
and perpetuation of the family’s marital form. Members gener¬
ate and disseminate social scientific papers and reports on the
status of the family as an institution in crisis.
72 THE AUTONOMY MYTH

On an ideological level (and along with much more conserva¬

tive commentators), civil societarians believe that the marital
family is a foundational institution—the “cradle of citizen¬
ship”—that teaches “standards of personal conduct that cannot
be enforced by law, but which are indispensable traits for demo¬
cratic citizenship.”1 Problems with the marital family, therefore,
are clearly seen as problems for democracy, justifying legal and
political responses.
In recent years, a number of civil societarian groups have
met, held conferences and hearings, and generated position pa¬
pers and calls for action in an effort to engage the nation in a dis¬
cussion of civil society.2 This chapter examines two reports that
set forth the purported diminished state of civil society and that
suggest proposals for civic renewal: “A Nation of Spectators:
How Civic Disengagement Weakens America and What We
Can Do About It,” prepared by the National Commission on
Civic Renewal [hereinafter Commission] and “A Call to Civil
Society: Why Democracy Needs Moral Truths,” prepared by
the Council on Civil Society [hereinafter Council].3
There is some significant membership overlap in the two bod¬
ies, which may explain the similarity in analysis and in policy
recommendations.4 Of particular interest is the fact that
William Galston, an adviser to both former president William
Jefferson Clinton and former presidential candidate Albert
Gore, is both a member of the Council and the executive direc¬
tor of the Commission. Professor Galston has been an active
and influential advocate from the liberal or progressive camp,
arguing for policies that encourage the traditional two-parent
family. The reports evidence that he h'as played a strong concep¬
tual role in both bodies.
Galston’s position on the family exemplifies the civil societar¬
ian approach. Unfortunately, his emphasis on the decline of the
two-parent family operates to ellipse concern about social and
 THE FAMILY I Ns C I V I L SOCIETY
73
O'

economic forces that are truly destructive to families, regardless

of their form. Of particular concern in this process are the po¬
litical implications of civic societarian discourse, which is re¬
plete with allusions to crisis and “family breakdown.” The
assertions of crisis and breakdown are supported by “evidence,”
such as opinion polls and academic studies.
Initially, from a purely academic perspective, civil societarian
arguments’ reliance on public opinion polls is troubling. These
polls are often used as though the responses to certain questions
by a majority of those polled represent some transcendent
“truth” about the state of American society.5 That “truth” then
becomes the justification for recommendations for legal policy
that would punish some families and privilege others.
Civil societarians justify coercive action based on opinion
polls that show that “the American public” agrees with their dire
observations about the family.6 But as discussed in chapter four,
the term “family” is susceptible to a variety of definitions. In ad¬
dition to the “traditional” family, populated by formally married
sexual affiliates and their biological children, family can be un¬
derstood to include other types of couples, such as unmarried
sexual affiliates, whether heterosexual or homosexual.
Family may come with or without children in coupled house¬
holds. To some people, family may also mean collections of in¬
dividuals not necessarily related by blood, but held together in
kinship systems in which sexual affiliation is not the paramount
tie. Slightly different is the sense of family associated with lines
of descent; an extended and intergenerational concept of fam¬
ily. To many, particularly those who are living it, single parent¬
hood does not preclude the designation of family. There are a
myriad of possible meanings of family, but the point I want to
emphasize is that it is by no means clear what definition respon¬
dents have in mind when replying to opinion polls inquiring
about “the Family.”
 THE AUTONOMY MYTH
74

It is also unclear what respondents have in mind when asked

to state their opinions on family functioning and moral decline.
For example, agreement with the statement that “breakdown”
in the family is a major indicator of “moral decline” may evi¬
dence concern with divorce and single motherhood on the part
of some responding to the opinion poll. But to others, agree¬
ment may indicate concern with the breakdown of intergenera-
tional ties, as illustrated by adult children’s no longer caring for
their aging parents at home. Breakdown in family discipline
may be thought to have moral significance, evidenced by the
fact that overworked parents (married as well as single) don’t dis¬
cipline their children into “civility.”
The very use of the term “breakdown” to epitomize changes
in family structure indicates that the civil societarians incorpo¬
rate the premises of an ideologically driven analysis. They could
have chosen another, less loaded word, such as “transforma¬
tion” or “evolution,” to talk about changes in family form.
Using “breakdown” to describe changes in patterns of intimate
behavior is manipulative—it generates in the minds of the re¬
spondents a sense that there is a societal crisis, which influences
the response they give. In this way, the communitarians trans¬
form demographic information into a societal problem, a prob¬
lem inherent in the image they initially conjured.
The civil societarians not only identify changing patterns of
intimate behavior as an existing crisis for democracy and its po¬
litical institutions; they also call for policy solutions directed at
those entities. They have constructed a crisis in individual
morality as well, turning the absence of marital status into an in¬
dication of individual moral failing' Marriage in the civil soci-
etarian’s hands becomes much more than a legal category. It is
reconfigured into the mantle of morality, from both a societal
and an individual standpoint. Marriage is presented as the path
to personal and familial (and therefore societal) salvation.
 THE FAMILY I NA CIVIL SOCIETY
75

But as I argue in chapter four, marriage is primarily a legal

category and does not have a well-defined practical definition
that is consistently manifested across all couples who participate
in the institution. Being married in itself does not indicate how
individuals are living their lives, performing their societal func¬
tions, or expressing morality. And, for those civil societarians
concerned with poll results, it is significant that the overwhelm¬
ing majority of Americans surveyed in a recent poll do not want
to see the government pushing marriage as social policy.
Columnist David S. Broder, reporting on a poll taken by An¬
drew Kohut from the Pew Research Center, remarked on the
American people’s concern with the “decline of moral charac¬
ter of the nation.” Kohut found that three-fourths of those in¬
terviewed thought people were “not as honest and moral as they
used to be and that young people lack the same sense of right
and wrong their counterparts had a half century ago.” Yet,
Kohut also reported as “a real surprise to him” that when the
same people were asked if they thought the government should
develop programs such as those proposed by President Bush to
encourage people to get and stay married, the answer was an
“emphatic no.” The margin indicating that the government
should stay out of marriage promotion was 79 percent to 18 per¬
cent. “Even among ‘highly committed’ white evangelicals,
Kohut found, the verdict was 60 percent to 35 percent against
such programs.” The speculation was that it would be just too
intrusive a role for even a well-intentioned bureaucracy.”7 Such
reservation is consistent with the American version of individu¬
alism discussed in chapter one, a sense of autonomy that trans¬
lates into a demand for freedom from governmental action.
Public opinion polls aside, it seems to me that the question
should not be how we can resuscitate marriage and thus save so¬
ciety and the family, but how we can support all individuals who
create intimate family relationships, regardless of their form. Of
76 THE AUTONOMY MYTH

particular importance are concerns for the caretaking tasks per¬

formed in families—whether children are being cared for and
whether the elderly and ill dre being nurtured and loved. If there
are problems in our society for those members who are depen¬
dent, we must then ask what institutional and other adjustments
are warranted in order to address their needs. By exclusively fo¬
cusing on marriage and deviant family form, the civic societari-
ans seem to ignore these questions.

II. DEFINING THE PROBLEM-

THE CIVIL SOCIETARIAN PERSPECTIVE

Upon reading civil societarian literature, one is confronted with

a mass of assertions, assumptions, and accusations concerning
the declining state of the nation, many of them unfootnoted, as
though beyond dispute.8 Consider the following statement from
the Commission’s report:

During the past generation, our families have come under intense
pressure, and many have crumbled. Neighborhood and commu¬
nity ties have frayed. Many of our streets and public spaces have
become unsafe. Our public schools are mediocre for most stu¬
dents, and catastrophic failures for many. Our character-forming
institutions are enfeebled. Much of our popular culture is vulgar,
violent, and mindless. Much of our public square is coarse and
uncivil. Political participation is at depressed levels last seen in the
1920’s. Public trust in our leaders and institutions has plunged.9

The report of the Commission suggests that the state of

morality in American society is “suppressing satisfaction with
the state of the nation . . . weighing down American attitudes as
Vietnam, Watergate, double-digit inflation and unemployment
once did.”10 This is reflected in the passivity and disengagement
 THE FAMILY II* CIVIL SOCIETY 77

of the average person, who is seen as lacking the confidence “to

make basic moral and civic judgments, to join with [their]
neighbors to do the work of community, to make a differ¬
ence.” 11 In seeking to strengthen the forces of civic renewal, the
Commission asserts that there are roles for “[individuals, fami¬
lies, neighborhood and community groups, voluntary associa¬
tions, faith-based institutions, foundations, corporations, [and]
public institutions.”12
As is perhaps appropriate in a report of “civic” health, most
of the attention in the report that follows focuses on the individ¬
ual responsibility of citizens. As citizens, we are certainly seen to
be a much diminished group that “place [s] less value on what
we owe others as a matter of moral obligation and common cit¬
izenship; less value on personal sacrifice as a moral good; less
value on the social importance of respectability and observing
the rules; less value on restraint in matters of pleasure and sexu¬
ality; and correspondingly greater value on self-expression, self-
realization and personal choice.”13 The Commission’s final
report concludes where it began, with a “call to [more responsi¬
ble, old-fashioned] citizenship.”14
The family, labeled “the seedbed of virtue,” is seen to pro¬
duce citizens.15 Families are “crucial sites for shaping character
and virtue, they provide vivid models of how to behave in the
world, and they help connect both children and adults to their
neighborhoods and communities.” 16 One need not dispute the
importance of family to individuals and to the future of the na¬
tion to find fault with the Commission’s perspective. Chapter
two of this book, which focuses on dependency, recognizes the
essential role that the caretaking family performs for the society
and its institutions. The point is that many strong supporters of
family are nonetheless more tolerant or accepting of diversity in
family form than is the Commission.
In fact, the report states that a major failing of the self-
indulgent citizen is the rejection of the institution of marriage.
 THE AUTONOMY MYTH
78

This behavior is particularly significant since marriage is central

to the civil societarian’s concept of “the family.” The Commis¬
sion’s report is very clear that the family at the center of civil so¬
ciety is a traditionally populated one—a nuclear or marital
family. The Commission’s conclusion about the decline of the
family is evidenced solely through measuring the incidence of
divorce and nonmarital births.17 The report is full of assertions
about the inferiority of the nonmarital family’s child-raising
ability. The authors recommend that the nation make a com¬
mitment to the proposition that “every child should be raised in
an intact two-parent family whenever possible.”18 This focus on
form, to the exclusion of other aspects of family, assumes that
form determines function. Its effect is to provoke law reform
proposals that seek to make divorce more difficult and to deter
single parenthood.
The report narrowly focuses on the institution of marriage as
being essential to the success and future of the family without
discussing some of the problems inherent in that position. For
example, it totally fails to recognize that marriage is and always
has been an exclusionary institution. Until the Civil War,
African Americans who were enslaved were not allowed to
marry. Until well into the second half of the twentieth century,
white Americans were prohibited from marrying members of a
different race in many states.19 In spite of a few court and leg¬
islative victories, gay men and lesbians are still precluded from
marrying partners of the same sex in all states and in federal
law.20 In addition, marriage is reserved for those couples in
which the partners are unrelatecf to each other, are not married
to others, and conform to certain state mandates in regard to
their capacity to contract.
The report is also narrow in its focus on individuals and indi¬
vidual lack of moral direction as the source of the problems we
face. There is virtually no demand for societal engagement with
 THE FAMILY I N CIVIL SOCIETY
79
r

the problems the report associates with the decline in marriage.

The report is further limited by its lack of attention to how
changes in nonfamily societal institutions have affected the fam¬
ily and civic health in general. At one point the commissioners
recognize that “[ajlthough civil society is independent of the
state and market, it is not unaffected by them.”21 This insight is
limited to a concession that the norms expressed in public law
“inevitably shape and temper the values and goals” of voluntary
associations.22 There is no recognition that the policies and
practices of both the state and the market also shape the mate¬
rial circumstances and well-being of citizens and families, and
thereby have a potentially profound effect on the development
of civil society.23 Nor is there recognition that the moral state of
the family and individuals within it are profoundly affected by
the moral state of the nation and its other institutions.

III. FAMILY FUNCTION AND FAMILY FORM-

COLLAPSING THE DISTINCTION

The Commission constructed an “Index of National Civic

Health.”24 This index, perhaps devised to suggest that there was
some scientific nature to their inquiry and fact-finding process,
purports to measure changes in civic health in the period be¬
tween 1974 and 1996. The Commission established five equally
weighted categories as being relevant to the assessment of civic
health: political participation, political and social trust, associa-
tional membership, family integrity and stability, and crime.
The Family Component contained only two variables or subcat¬
egories within it: divorce and nonmarital births, which are each
equally weighted at 10 percent.
This narrow and exclusive focus on family form, when ad¬
dressing the family within civil society, is consistent with other
8o THE AUTONOMY MYTH

polemical writing on the topic. In its “Report to the Nation,” the

Council on Civil Society expressed concern with the moral state
of the nation and identified as the first of three proposed goals
“to increase the likelihood that more children will grow up with
their two married parents.”25 The Council found proof of de¬
clining morality primarily in the “steady spread of behavior that
weakens family life, promotes disrespect for authority and for
others, and insults the practice of personal responsibility.”26
The Council’s report drew the civil societarian’s typical causal
link between nontraditional family forms and social harm.2'
Whether in the language of the Council or of the Commission,
the “disintegration”28 or “breakdown”29 of the family30 evi¬
dences, as well as further causes, civic decline.
It is important to note that this perception of breakdown is
viewed as serious enough to justify exceptional treatment of the
family, in that the intervention recommended is outside the gen¬
eral paradigm for civil society. Both the Council and the Com¬
mission express an image or concept of civil society that focuses
on its voluntary nature; the groupings and associations of concern
to the civil societarian are defined as standing outside the state.31
Nonetheless, as is clear from the Council’s recommendations,
their conception of the family within civil society is that it
should be a coerced institution, coerced through state regulation
of marriage. Hence, they suggest that no-fault divorce laws be
reformed for the purposes of both “lowering the divorce rate
and improving the quality of marriage.”32
Thus, the family is not to be treated as a voluntary or unregu¬
lated institution. Quite the contrary: regulation would be mani¬
fested not only at entry into marriage, but also at exit, with
requirements of fault reimposed in some instances, such as
through the establishment of a covenant marriage model.33
Marriage is the only civil institution for which the Council rec¬
ommends a system of coercive la^vs and regulations over forma-
 THE FAMILY I £T CIVIL SOCIETY 8i
r

tion and dissolution. In addition to reinstituting fault as the basis

for divorce, the Council recommends repealing federal regula¬
tions that prevent school districts from discouraging unwed teen
childbearing, so that schools are free to adopt disincentives to
such behavior.34 It is also suggested that preferences in public
benefits, such as public housing, be established for married cou¬
ples.
By contrast, when considering what actions might be appro¬
priate for other civic institutions, the Council reflects the Amer¬
ican preference for limited governmental intervention by
recommending less governmental control (e.g., passing legisla¬
tion to allow the media to develop a voluntary “Family Hour” pol¬
icy without fear of litigation by the government).35 Other
institutions are not viewed as being in need of coercive legisla¬
tion or ongoing supervision in order to perform their civic re¬
sponsibilities. Business, labor, and economic institutions are
“urged” to, or cajoled into, reconsidering priorities.36 Commu¬
nitarians suggest no rules or restrictions for monitoring the op¬
erational decisions of economic institutions.

IV. REGULATING THE FAMILY-

MORAL JUSTIFICATION AND BEYOND

In considering the justification for regulation of the family, it is

helpful to untangle moral objections to the non-nuclear family
from arguments asserting that there are harmful consequences
to children’s being raised in such families.37 Morality is promi¬
nent in the discourse of those concerned with civil society, but
most commentators supplement moral concerns with secular
ones. For example, Galston made “a liberal-democratic case for
the two-parent family” in a widely quoted article in The Respon¬
sive Communityi38 He begins his argument by positing the family as
82 THE AUTONOMY MYTH

a moral unit that makes an “irreplaceable contribution to the

creation of citizens possessing the virtues necessary for liberal
democracy.”39 His tying together of morality and family is fol¬
lowed by a reference to a Washington Post article that reports the
results of a nationwide inquiry into the public mood.40 Galston
uses the poll data and the article to conclude, “the public be¬
lieves that America is in the grip of ‘moral decay.’ ”41 Further,
the explanation for moral decay is reported to be the “break¬
down” of the family.42
Galston, apparentiy buoyed by what he took to be the public’s
endorsement of his analysis, deemed their characterization
“hardly the product of an overheated public imagination.”43 At
this point, he cited statistics on divorce and nonmarital mother¬
hood, presumably considering them hard evidence of public
perceptions. There seems to be something counterintuitive and
confusing about this turn in Galston’s argument. He has im¬
posed upon his reader the definition of what constitutes “break¬
down” for the public responding to the poll—divorce and single
motherhood.44 But if his assertion that these statistics illustrate
the problem is true, and if it is also true that the divorce rate con¬
tinues to hover around 50 percent45 and never-married mother¬
hood is on the rise,46 then a significant number of those
responding to this, and other, polls about the state of American
moral health must be agreeing that their own behavior is an indica¬
tion of moral decline—that they themselves, or at least their be¬
havior, are immoral.
I am not convinced that this poll indicates anything about the
nature of the public’s opinions.42,The map of the public mind
that Galston seeks to draw is too uncharted to support his con¬
struction of the moral family as exclusively the marital family. In
addition, poll information based on public perception and opin¬
ion should not be presented as evidenqe of the “truth” of moral
decay. '
 THE FAMILY CIVIL SOCIETY
83
r

As a liberal political theorist, however, Galston does not rest

his argument for regulation of the family on morality alone. He
recognizes that coercive rules have the potential to jeopardize a
liberal democracy’s dedication to “a wide sphere of individual
freedom.”48 He concludes that “[sjtate action must therefore be
justified in light of widely shared public purposes, and the line
separating such public purposes from personal moral prefer¬
ences must be vigilantly safeguarded.”49 Galston then under¬
takes a search for non-morality based public purposes for his
preference for intact two-parent families, such as economic con¬
sequences and nonmonetary or noneconomic consequences of
single parenting.50
Galston identifies the consequences of family breakdown in
both economic and noneconomic terms, arguing that the effects
on children are particularly serious.51 The economic effects are
well documented—single-parent families are generally poorer
than two-parent families.52 Galston suggests that “it is no exag¬
geration to say that the best anti-poverty program for children is
a stable, intact family.”53 One must wonder if he is unaware of
the many poor working two-parent families in the United States.
While having two parents may increase the likelihood that a
child will not starve, it certainly does not guarantee it. There¬
fore, to label the intact family as “the best” program to prevent
childhood poverty seems glib and insufficient.
Of course, if the problems confronting children were only
economic, the solution would be obvious transfer monetary
resources to the child-rearing unit (from one parent to the other,
or from the state to the care taking parent). Galston identifies
other consequences for children living in one-parent homes that
are less susceptible to economic measures, however.54 Quoting
Karl Zinsmeister, he asserts that there is an emerging consensus
on the noneconomic consequences of divorce: “ There is a
mountain of scientific evidence showing that when families dis-
 THE AUTONOMY MYTH
84

integrate, children often end up with intellectual, physical, and

emotional scars that persist for life . . . We talk about the drug
crisis, the education crisis, and the problems of teen pregnancy
and juvenile crime. But all these ills trace back predominandy to
one source: broken families.”55
Galston further elaborates by describing the conclusions of a
few studies to support his assertion that “the disintegrating American
family is at the root of America’s declining educational achievement.”56 Ac¬
cording to Galston, one study’s lead investigator indicated that
children “need authoritative rules and stable schedules, which
harried single parents often have a hard time supplying.”37
Quoting the investigator, Galston writes: “ ‘One of the things
we found is that children who had regular bedtimes, less TV,
hobbies and after-school activities—children who are in house¬
holds that are orderly and predictable—do better than children
who [are] not. I don’t think we can escape the conclusion that
children need structure and oftentimes the divorced household
is a chaotic scene.’ ”58
Galston explicidy recognizes that his preference for an intact
two-parent family does not mean that this is always true or that
all single-parent families are “dysfunctional.”59 I presume he
would also recognize that quite often, two-parent families are
chaotic. His is a statistical argument directed at shaping social
policy. It is also explicitly a moral or “frankly normative” argu¬
ment, whose building blocks are not only scholarly evidence, but
also “the moral sentiments of most Americans.”62
Speaking for “most Americans,” Galston asserts that “[a] pri¬
mary purpose of the family is to r^ise children, and for this pur¬
pose families with stably married parents are best. Sharply rising
rates of divorce, unwed mothers, and runaway fathers represent abuses of
individual freedom, for they are patterns of adult behavior with
profoundly negative effects on children.”6’ With this intriguing
choice of emphasis, Galston joins'the moral with the statistical,
 THE FAMILY J.N CIVIL SOCIETY
85

labeling as “abuses” parental martial behavior that he posits has

a negative effect on children.62
To combat the abuses he has constructed, Galston advocates
changes in law and policy, including a braking mechanism on di¬
vorce and serious efforts at collection of child support.63 As
mundane as those suggestions seem in light of current policies,
the logic of his argument is to lay the groundwork for more co¬
ercive rules.
In Galston’s rendition of reality, not only is family form a pre¬
dictor of economic well-being, but unmarried motherhood is a
proxy for poor organizational skills and individual immorality.64
Many other commentators have clarified, elaborated upon, or
challenged the empirical or “scientific” findings of the effects of
family form on children that seem so persuasive to Galston and
other two-parent-family proponents.65 For example, Professor
Judith Stacey commented on the process whereby the results of
only some studies (those supporting the family disintegration
thesis) get publicized and aggressively made part of public pol¬
icy discourse through think tanks and advocates with access to
media.66
Furthermore, new studies call into question civil society advo¬
cates’ conclusions that single parenthood is harmful to chil¬
dren.67 For example, a large, multiethnic study at Cornell
University indicates that single motherhood does not necessarily
compromise preparedness for school, suggesting that what mat¬
ters most is the mothers’ abilities and educational levels.68
In another large study, of nearly 1,400 families and more than
2,500 children conducted over three decades, Professor Mavis
Hetherington concludes, “The negative long-term effects of di¬
vorce on children has been exaggerated to the point where we
now have created a self-fulfilling prophecy.”69 Hetherington as¬
serts that the reason divorce has been called harmful to children
is that studies have failed to examine long-term effects, instead
86 THE AUTONOMY MYTH

focusing only on the first year or two after divorce.70 She asserts
that over a longer time frame, the majority of children from di¬
vorced homes “looked a lot like their contemporaries from non-
divorced homes.”71
It may also be that younger scholars, not as tied to the institu¬
tion of marriage as their elders, might look with a more critical
eye on existing gloom-and-doom material.
In an interesting paper examining the causal basis of commu¬
nitarian family values (and Galston’s work in particular), Andrew
Lister concludes that the connection between family structure
and negative outcomes is far from clear and documents the ob¬
stacles that stand in the way of gathering evidence on this rela¬
tionship.72 For example, mere associations, such as that between
single-parent families and poor school performance, do not tell
us very much about causation.73 Children in two-parent families
may graduate from high school at a higher rate, but children liv¬
ing in one-parent households are less likely to have college-
educated parents and are more likely to be black or Hispanic
(hence subject to discrimination, language barriers, and rela¬
tively diminished pools of family resources available for educa¬
tion).74 If such factors are not taken into account, it is impossible
to determine how much of the difference in school achievement
is due to family structure and how much to other parental char¬
acteristics.75 Lister concludes that it is misleading to focus our de¬
bate on scientific evidence about the effects of family structure
on children’s well-being and suggests that we directly consider
the moral balancing involved in setting family policy.76
In regard to moral issues, feminists raise additional points of
contention that are normative in natu're, reflecting concern for
the historic role of marriage in the subordination of women.
Professor Iris Marion Young has questioned Galston’s exclusive
focus on children, noting that .a preference for marriage
“amounts to calling for mothers to'depend on men to keep them
 THE FAMILY IP*. CIVIL SOCIETY 87
r

out of poverty, and this entails subordination in many cases.”77

Professor Pepper Schwartz expressed her disagreement with the
arguments favoring the two-parent families thus: “On what
grounds could I possibly dissent? How about gender? How
about man’s inhumanity to woman? How about a thousand
years of female sacrifice unnoticed, almost unmentioned? And
how about the family as the primary institution of women’s sub¬
ordination?” 78
It is important to see the extent of the difference in moral vi¬
sions between Galston and such commentators. While the pro¬
ponents of two-parent families seem to believe that parents
indulgently divorce with little concern for their children’s wel¬
fare, feminist arguments, such as those I have described, indicate
that there are deeper social problems associated with the institu¬
tion of marriage than the fact that some people divorce or that
some choose to have children without marrying.
I agree with the criticisms of the work on the inherent advan¬
tages of the marital family offered by both social scientists and
feminists. Those who are skeptical of the predictive value of the
“science” underlying claims for the superiority of the two-
parent family have a valid basis for that skepticism. Conflicting
evidence about the success of single-parent families, as well as
inconvenient evidence about the shortcomings of traditional
families, seems to get lost in the civil societarian’s smooth transi¬
tion from observations about the need for action to help chil¬
dren to laying blame on parents living in nontraditional family
forms.
However, even if civil societarians are correct in that divorce
produces harmful effects on children, their analysis fails to con¬
sider, let alone add to the equation, the costs suffered by women
(and, ultimately, the children they care for) if we deter divorce
and punish single motherhood through establishing economic
and normative disincentives. The children who today live within
88 THE AUTONOMY MYTH

the families we seek to discipline are punished along with their

mothers in the effort to lessen the harms it is argued will be suf¬
fered by other children in the future. Commentators such as
Galston fail to consider that harm to the primary caretaker will
inevitably negatively affect those children for whom she cares.
Professor Susan Moller Okin argues that women become vul¬
nerable when they assume the role of primary caretaker, and
that “their vulnerability peaks if their marriages dissolve and
they become single parents.”79 She argues that women are
made vulnerable at divorce by their responsibility for child rear¬
ing and dependence on the marital relationship.80
The feminist critics are also correct to point out that marriage
remains a gendered institution—one in which wives, rather than
husbands, carry the larger share of the burdens associated with
intimacy and child care.81 For some women, reproduction out¬
side of the marital family may be easier than having to cope
with the vestiges of patriarchal privilege’s shaping the expecta¬
tions and demands of their husbands, in addition to caring for
children and working. Civil societarians should remember that
their vision of the marriage relationship as being benign and
beneficial is not always the experience of women. Abuse and vi¬
olence within the institution remain a real concern for many.82

V. POVERTY AND WELL-BEING

Rather than reiterating and elaborating upon insights already

eloquently presented by others, I, want to turn to a different set
of questions and concerns about the' role of the family in civil
society debates. Specifically, I want to question the lack of atten¬
tion given to the effects of other societal institutions on the fam¬
ily. My perspective is that those concerned with the health of
civil society and our nation should focus on the pressures placed
on the institution of the family (however defined) by significant
 THE FAMILY IN CIVIL SOCIETY
A * / 89

trends or changes in the nonfamily institutions of society, partic¬

ularly those in the business or market sector. The pressures
generated by uncontrolled market institutions are at least as rel¬
evant to the health and well-being of children and families as
are uncontrolled mothers and fathers: the irresponsibility of the
state in not regulating or mediating the excesses of market activ¬
ities is at least as devastating to a child as the irresponsibility of
any unwed or divorced parent. We must count the costs to the
family and, hence, to civil society of increased income dispar¬
ity,83 wage stagnation for middle- and lower-income wage earn¬
ers,84 and persistent impoverishment for too many of our
nation’s children.85
One interesting study by two leading researchers suggests that
it is the government’s failings regarding poverty that are respon¬
sible for the problems seen in today’s families.86 The study notes
that the United States has a 21.5 percent child poverty rate,
which is almost double the rate found in Western Europe.87 The
authors attribute this phenomenon to a relative lack of govern¬
ment tax and money transfer benefits to families below the
poverty line in the United States as compared with European
countries. For example, in Europe there is a guaranteed mini¬
mum level of child support to single parents when the absent
parent cannot or will not pay child support.88 They further note
that attempts to relieve child poverty in the United States have
failed. For example, the recent $4.oo-per-child tax credit does
nothing to aid families who already have no federal income lia¬
bility because of their low annual incomes.89 The authors sug¬
gest that these two solutions—guaranteed child support and
child allowances for every family—would produce better results
in fighting child poverty in the EJnited States.

A. The Uncontrolled Market and the Unresponsive State

Interestingly, the Council on Civil Society initially identified
“growing inequality” as a primary condition endangering “the
 THE AUTONOMY MYTH
90

very possibility of continuing',self-government.”90 The nation’s

current predicament was cast as “growing inequality, sur¬
rounded and partly driven by moral meltdown.”91 The recogni¬
tion that there is growing inequality, and that it is relevant to
assessing the decline in civil society, was ultimately and quickly
overshadowed by the council’s identification of morality as the
paramount concern. Once again, gross public data proved valu¬
able in shifting the discussion to morality. The Council cited an
opinion poll finding that “[b]y a margin of 59 percent to 27
percent, Americans believe that ‘lack of morality’ is a greater
problem in the United States than ‘lack of economic opportu¬
nity.’ ”92 Whatever the Americans answering the survey might
have meant in giving their responses, the Council on Civil Soci¬
ety followed the civil societarian’s traditional litany—that the
problem is moral meltdown and that it can be traced to the bro¬
ken “cradle of citizenship,” the family.93 The implications and
effects of inequality were left unexplored.
I think there is a strong argument to be made, however, that
growing inequality does have implications for civil society and
that it should be central in the debates. In order to begin that ar¬
gument, it is productive to map the growth in inequality on the
same grid that the Commission on Civic Renewal used in con¬
structing its “Index of National Civic Health.” The Commis¬
sion selected the period from 1974 to 1996 to measure those
things it considered relevant—falling political participation, de¬
cline of political and social trust, a decrease in membership in
organizations, and youth crime rates.94
During that same time period, there has been significant,
growing inequality in income distribution in the United States,
as well as a general decline in wages for many Americans.95
There also has been a contraction of responsibility for the provi¬
sion of basic social goods, such as insurance, by market institu¬
tions, and a withdrawal of the federal government’s entidement
to welfare benefits.96 These changes and others detailed in chap-
 THE FAMILY IN CIVIL SOCIETY 9i
A • ,
tr

ter nine, such as declining real wages, increased economic in¬

equality, and more tenuous connections to the labor force, have
had a tremendous impact on the well-being of families and chil¬
dren. In fact, these inequalities may be more central to under¬
standing the other designated indicators of decline than either
the rising divorce rate or the increase in never-married mother¬
hood (factors that the Commission identified as the relevant
variables in the Family Component of its index).97

B. Inequality and the Family

What happens to families (regardless of form) whose economic
well-being is threatened? Families are entering poverty at larger
rates. In 1977, 7.7 percent of families lived below the poverty
line.98 In 1993, 11.4 percent of families were below the poverty
line.99 Even in an era of strong economic growth, poverty per¬
sists. For example, in a recent article in the New York Times, Nina
Bernstein detailed how the poverty rate in New York City per¬
sisted in spite of the strongest economy in years. Nearly one in
four New York City residents had incomes below the poverty
threshold in 1998.100
Of particular concern are children; in recent years, about one
in five American children (12 to 14 million) has lived in a family
with income below the poverty line.101 The United States is the
only Western industrialized nation that does not have some
form of universal cash benefit for families raising children.102 In
addition, child poverty rates are higher in the United States than
in sixteen other industrialized countries.103 Poverty has both
short- and long-term consequences for children. Evidence sup¬
ports the conclusion that family income can substantially influ¬
ence child and adolescent well-being, specifically physical
health, cognitive ability, school achievement, emotional and be¬
havioral outcomes, and teenage out-of-wedlock childbearing.101
Even in families well above the poverty line, falling economic
fortunes create a scramble to stay ahead. Certainly wage and job
 THE AUTONOMY MYTH
92

instability produces stress, entourages longer work hours, and

necessitates the participation of more family members in the
workplace. In this regard, it is interesting that although families
are entering poverty at increasing rates, more married women
with young children are entering the labor force.103 In 1970, 30
percent of married women with young children were in the
labor force.106 In 1987,57 percent of married women with young
children were in the labor force, and that number has continued
to rise.107
Reporting on a study by Ellen Galinsky of the Families and
Work Institute, the Washington Post indicates that children’s inter¬
action with their parents is affected by parental job-related
stress.108 Further, economic necessity means that both parents
are working longer hours—over the last two decades, Ameri¬
can fathers’ time at work increased by 3.1 hours per week, while
mothers added 5.2 hours.109 Employed fathers with children
younger than eighteen now work an average of 50.9 hours per
week, and working mothers average 41.4 hours per week.110
Americans surpass citizens of every other industrialized na¬
tion in time spent on the job, putting in the equivalent of two
weeks more per year than the Japanese.111 In addition to having
a negative effect on parent-child interaction, this increase in
hours and the stress it generates affects the marriage relation¬
ship112 and leaves little time or energy for indulgence in volun¬
tary civic activities. Perhaps the real danger to civic society is the
runaway nature of contemporary American capitalism and the
inequities it has generated.

C. Economics and Civil Society / .

Stagnant wages and income inequality are major factors con¬
tributing to a diminished American dream.113 The experience of
inequality must certainly contribute to suspicion and mistrust on
the part of those who see others getting further and further
 THE FAMILY IN CIVIL SOCIETY
93
r

ahead. Inability to provide one’s children with minimal goods

and services can lead to frustration and despair. John Ehren-
berg, in his new book on civil society, comments on the series of
articles by Sara Rimer in the New York Times in which she investi¬
gated the effects of the “downsizing of America” on community
life.114 Rimer found people too exhausted and busy to partici¬
pate in their communities.115 Ehrenberg, referencing William
Julius Wilson, further notes that there seems to be an association
between lack of work and the disappearing civil society.116
The real danger of the civil societarian’s narrow focus on
family form is that it will deflect attention away from the more
serious problems that the current political and economic con¬
texts present for the family. Many different types of families suc¬
ceed at their assigned societal tasks. It seems clear that a certain
level of resources is necessary to accomplish those tasks, and in
recent years, these resources have become less available to many
families. This is not the fault of the families, but rather the result
of changes in attitude and in the scope of governmental safe¬
guards and market practices. How should society respond to
these changes? Focusing on family form will not help us begin
making coherent policy to help our families. To consider what
appropriate family policy might be, we might begin with the fol¬
lowing questions:

• How should the need for resources for caretaking be satisfied

so caretakers can act independently, make decisions, and f ul¬
fill societal expectations in ways that best respond to their in¬
dividual circumstances?
• Should caretakers be primarily dependent on the family for
such resources?
• Given the uncertain status of marriage, in which the divorce
rate remains around 50 percent117 and women are expected to
be wage earners as well as wives and mothers, how can we
 THE AUTONOMY MYTH
94

continue to have the traditional model of the family offered by

politicians as the solution for poverty?
• Shouldn’t the richest country in the history of the world have
a family policy that goes beyond marriage as the solution for
dependency?
• Specifically, doesn’t the family, as it exists today, require sub¬
stantial assistance from other societal institutions?
• Is it fair that the market and the state (which are totally de¬
pendent on caretaking labor and in no way self-sufficient or
independent from caretaking) escape responsibility for de¬
pendency, and continue to be freeloaders (or free riders) on the
backs of caretakers and families?
• Isn’t it time to redistribute some responsibility for dependency,
to mandate that the state and the market bear their fair share
of the burden?

These are the questions to which I would urge the civil soci-
etarians to turn their attention. The problem with society is not
that marriage is in trouble. The real crisis is that we expect mar¬
riage to be able to compensate for the inequality created by and
within our other institutions.

\
 Chapter Four

Why Marriage?

I. INTRODUCTION

As I argued in chapter two, the marital family has designated

functions within a society. It also has significant meaning to
many individuals. But what exacdy is that marital family? What
does it mean to society and to individuals as a set of practices as
well as a politics? This chapter explores the many potential indi¬
vidual and societal meanings that may be ascribed to marriage,
and the ways in which those meanings can inform and influence
our thinking about laws and policies that relate to marriage. I
also examine the history of changes that have occurred, both
within marriage as an institution with assigned and assumed so¬
cietal functions, and in our expectations about the roles that in¬
dividuals will play within this institution.
When thinking about what marriage means, both to society
and to individuals, we need to remember that marriage is an in¬
stitution susceptible to societal pressure and change. This means
that marriage has a history of transformation and reconstitution
96 THE AUTONOMY MYTH

that may be relevant to contemporary consideration of the rela¬

tionship. Certainly, marriage as both practice and aspiration is
not the same institution today as it was in our grandparents’
youth in the mid-twentieth century.
Consider how we, as a contemporary, modern, and secular
society, might imagine the legal institution of marriage if we
were able to work upon a “clean slate,” freed from the religious
and common-law history of the institution. What would be our
sense of the appropriate content, purpose, and function of this
legal institution of modern marriage? One way to begin to an¬
swer that question is to look at what marriage does mean today
on a cultural and social level, looking to see how people are “liv¬
ing marriage” in their everyday lives.
This line of inquiry might be pursued along two separate
paths: First, what does the word “marriage” convey to us as in¬
dividuals? In addressing this question, we look at marriage from
a personal perspective—as a cultural and social practice in
which we engage. Second, what does marriage convey to us col¬
lectively—as a society? From this perspective, we look at the
functions that marriage performs on political, ideological, and
structural levels—its construction as an institution in law and
policy.
Related questions that might also be asked include: how is it
possible to have only one legal definition of marriage in a di¬
verse, pluralistic, and secular society such as ours? Further, is
marriage about behavior and functioning, or is it about legality
and form? What does the legal designation of marriage foster,
reform, facilitate, support, preserve, or protect? Real and con¬
structive debate about these issues is often obscured or ob¬
structed by marriage’s potentially infinite number of meanings.

v
 WHY MARRIAGE? 97
A . ^

II. THE MANY MEANINGS OF MARRIAGE

A. Individual Meanings
Of course, today both individuals and society know that mar¬
riage constitutes a legal relationship. The law defines some
meanings of marriage for individuals. It is also an exclusive, and
excluding, institution—not everyone can enter. Through law,
the state establishes uniform standards for marriage, specifying
who may marry whom and what formalities must be observed.
In addition, law sets out the consequences of marriage at the
dissolution of the relationship, be it by death or divorce. These
consequences have become clear and predictable to lawyers and
others administering the system.1
However, making predictions about the ultimate content and
conduct of any given ongoing marriage is far from a clear-cut
task. Within the boundaries establishing entry into and exit from
the institution, individuals are free to create a variety of mean¬
ings of marriage for themselves. This is because society, through
its laws, has historically covered existing marriage relationships
with a shroud of “privacy,” shielding them from direct state mi¬
cromanagement and supervision, and thus allowing the conduct
of individual marriages to vary widely. This concept of privacy
still affects the way we think about the relationship between the
state and the marital family.
For ongoing marriages, the norms for state/family relations
are those of nonintervention and minimal regulation. There are
exceptions to this norm of privacy, but most of them are fairly
recent innovations, such as increased legal recognition of and
response to domestic abuse and neglect, and removal of the
common-law interspousal tort immunity, which precluded one
spouse from recovering from the other for negligendy inflicted
injuries.2 Other regulatory interventions into ongoing family re¬
lationships, such as the rules that preclude spousal testimony in
 THE AUTONOMY MYTH
98

criminal cases, are trivial from the perspective of concern with

institutional dynamics.3
Because the law governing marriage leaves the day-to-day
implementation of marriage to the individual spouses, it is the
conduct of the parties that actually defines their marriage, giv¬
ing it content and meaning, not the mandates of the state. On¬
going marriages are individualized, idiosyncratic arrangements.
Even if cultural institutions, such as the media, or religious im¬
agery might influence how some understand marriage norms,
these norms are not mandated on individuals by law.
The doctrine of “marital privacy,” which is discussed in detail
in the postscript to this book, facilitates and reinforces the indi¬
vidualized nature of ongoing marriage. For purposes of the dis¬
cussion here it is only necessary to know that the doctrine
provides that, except in extreme situations, there are no mecha¬
nisms of legal enforcement available to resolve disputes in an
ongoing marital relationship. This is true even when the terms
sought to be enforced are those established by the state—im¬
posed by its “marital contract.” So, while a wife might have a
“right” to support under family law, she cannot enforce that
right against her husband in a court of law.4 The doctrine of
marital privacy mandates that the marital relationship first be
ruptured through some form of dissolution proceeding, such as
the divorce process.5
In other ongoing formal and legal relationships—the rela¬
tionship between shareholders and corporations, for example—
there is no expectation of privacy. Rights and obligations are
defined, limited, and structured so that the range and nature of
interactions are predictable. They ate also potentially publicly
enforceable even without dissolution. By contrast, the issuance
of a marriage certificate does not require any specific legally
mandated conduct on the part of the_ partners its issuance joins.
Modern marriage does not come with or require a charter of in-
 WHY MARRIAGE?
& . , 99
r
corporation, bylaws, or an oversight body such as the Securities
and Exchange Commission to interpret what the union means
to its participants and to monitor how those participants fulfill
their designated responsibilities and duties within the relation¬
ship.
Therefore, in both practice and form, marriage is as diverse
as the inhabitants of our contemporary, secular state. Our legal
doctrine and structures create a vacuum—an absence of legally
mandated meaning—leaving open for negotiation the content
of every individual marriage. Couples fill this vacuum with var¬
ious nonlegal and sometimes conflicting aspirations, expecta¬
tions, fears, and longings. Reflection on the prospect of varied
possibilities for the meaning of marriage suggests the institu¬
tion’s individualized and malleable nature.
Marriage, to those involved in one, can mean a legal tie,
a symbol of commitment, a privileged sexual affiliation, a
relationship of hierarchy and subordination, a means of self-
fulfillment, a social construct, a cultural phenomenon, a reli¬
gious mandate, an economic relationship, the preferred unit for
reproduction, a way to ensure against poverty and dependence
on the state, a way out of the birth family, the realization of a
romantic ideal, a natural or divine connection, a commitment
to traditional notions of morality, a desired status that commu¬
nicates one’s sexual desirability to the world, or a purely
contractual relationship in which each term is based on bargain¬
ing. Of course, this is not an exhaustive list—there are many
additional potential meanings for marriage, perhaps as many
meanings as there are individuals entering, or not entering, the
relationship.

B. Societal Meanings
The contemporary meaning of marriage is no easier to pin
down and ascertain if we look at it from a societal, rather than
IOO THE AUTONOMY MYTH

an individual, perspective. While it is true that societal expecta¬

tions of marriage are more publicly articulated, there are multi¬
ple expressed institutional meanings for marriage within the
society that constructs and contains it. In fact, despite profound
changes in the practice of marriage over the past decades, the
explicit reasons articulated for the institution from society’s per¬
spective have not changed all that much. Some rationales are
mundane, such as the need for formal record keeping and for as¬
signing responsibilities and rights among persons (e.g., to facili¬
tate property transfers at death or identify persons responsible
for payment of household debts).
There are also claims that society benefits by regulating mar¬
riage in regard to traditional public health objectives. The appli¬
cation for a marriage license can also be the occasion for
mandatory health screening or counseling on genetics. The
process can be used for social engineering purposes, such as to
supply information on the importance of marriage or to edu¬
cate couples about the purported negative impact on their chil¬
dren, should they have any, of any future decision to separate
and divorce.
Other societal justifications for marriage are more global in
nature and, therefore, also more questionable. Marriage, it has
been argued, is an effective method of containing and harness¬
ing (male) sexuality in the interests of the larger society.6 Socio¬
biologists (and some legal and policy analysts) view men as
naturally polygamous and aggressive when it comes to sexual
conquest. The expression of such “innate” qualities would re¬
sult in violence toward other ngiles and ultimate abandonment
of women and their children by a mate in pursuit of new con¬
quests.7 In assigning responsibility for a woman and her children
to one man, marriage channels his socially acceptable sexual ex¬
pression and frees the energy he might otherwise expend in sex¬
ual activity for socially productive work.
 WHY M A JR R I A G E ? IOI

Such assertions present complex theoretical and empirical is¬

sues. Do men in this society, at this time in history, given our exist¬
ing sets of cultural, economic, and social relationships, desire
and need intimate connections with women and children? If so,
is their need for such connection with women different from and
more complicated than mere sexual desire? Can men care about
children independent of those children’s role as carriers of
genes into the next generation? If the answer to such questions
is “yes,” the next question is whether male need and desire for
intimate connections is such so as to shape their behavior even
without the loose and tenuous bonds modern marriage supplies?
In addition, it may be noted that even if men do not need in¬
timate connections and the sociobiologists are right, it is not the
end of the matter. The so-called “male problematic”—men’s
abandonment of women and children—need not be problem¬
atic if there is social and economic support for those women and
children from other sources. If women and children do not need
physical protection from predators in modern American society
and have access to material and other goods, it may not matter if
men leave them, at least not to their ultimate survival.
This mention of the needs of children brings to the fore an
important and historic state interest in marriage. The institution
of the marital family has been the traditional site for the socially
essential reproductive process. Reproduction clearly entails im¬
portant societal interests: society must reproduce itself and often
creates policies that encourage women to have children. Society
is also rightly concerned with the ways in which children are ed¬
ucated and disciplined into productive workers, voters, and citi¬
zens, tasks traditionally undertaken by the marital family.
In fact, the state interest in children continues to be used to
justify state regulatory interest in the marital family.8 However,
as more and more nonmarital families perform these important
tasks (and perform them well), it becomes increasingly difficult
102 THE AUTONOMY MYTH

to use marital status as a basis for distinction in the allocation of

social goods to children and parents.
Of course, if there is some demonstrable harm to children or
others—clear links between cause and effect—associated with
the absence of marriage or its replacement with an alternative
relationship, then that might justify some state-provided incen¬
tives for marriage. However, the harm alleged should be some¬
thing more concrete than an affront to an abstract sense of
morality or to the symbolic order preferred by some officials. In
any case, even if there were some harm, that would not neces¬
sarily support negative regulation and prohibition of alterna¬
tives. Quite the contrary. If our concern is really with the
well-being of children, then we should have policies in place
that seek to put alternatives to marriage on an equal footing with
that relationship in regard to social subsidy and support. We
should strive to see that children are not disadvantaged merely
by the form of the family in which they find themselves.
One reason increasingly offered for maintaining marriage in
its privileged position is that the weakening of that institution is
potentially harmful to society itself. Marriage is argued to be an
essential institution for our democracy. This argument, based in
political theory, is supported by “evidence” that is largely histor¬
ical in nature. Proponents of the position that marriage provides
the “seedbed” of democracy bolster their arguments with ring¬
ing declarations about its position as the “most important rela¬
tion in life,” statements that are for the most part traceable back
to nineteenth-century Supreme Court decisions, such as May¬
nard v. Hill and Reynolds v. United Spates.'0 They also resort to and
wax eloquent upon statements made!t>y various Founding Fa¬
thers about the need for a “moral” nation in order to have
democracy flourish.11
Offered as the coup de grace of nineteenth-century sentiments
about marriage is the work of Alexis de Tocqueville. His writings
 WHY MARRIAGE? io3
a - >

from 1835 that there was “no other country in the world where
the tie of marriage is more highly or worthily appreciated” and
that “the American derives from his own home that love or order
which he afterwards carries with him into public affairs” are used
to bolster the connection between marriage and freedom.12
These arguments conflate marriage and family (and also
virtue, morality, and marriage). Having done so, they fail to rec¬
ognize that even if marriage was central in the nineteenth cen¬
tury, it may not be so today. Perhaps in the nineteenth century,
the institution of marriage was considered central in discussions
about the nature of “domestic habits” as a “ ‘necessary precon¬
dition’ for maintaining the constitutional Republic,”13 but those
who merely reiterate ancient platitudes do not adequately re¬
spond to today’s critics of the institution.
Those who urge that marriage is essential to democracy are
using nineteenth-century arguments based on nineteenth-
century institutions—historic notions of what constitutes
democracy, virtue, marriage, and family. In this regard, it is im¬
portant to remember that the version of our democracy in oper¬
ation during the nineteenth century denied all women and a
good number of men the right to vote and otherwise participate
in political life. Our virtuous nation and its Constitution legiti¬
mated slavery. So, too, the marriage invoked was the common-
law version that reflected a very different sort of sensibilities
than ours today—lifelong, patriarchal, and hierarchical. Even
if called by the same name, the institution of the nineteenth
century is certainly not the vision of marriage we have today.
Neither marriage nor democracy has remained constant in def¬
inition over time and across changes in our culture.
Finally (and I believe this is the real issue for many advocating
its centrality), marriage can have important expressive meaning
for a society, reflecting its moral or religious conventions. This
role, however, seems problematic for a diverse and secular state
104 THE AUTONOMY MYTH

such as the United States, with a constitutional system mandat¬

ing separation of church and state. This separation between re¬
ligion and the state is particularly significant and important
when marriage is the means whereby the state distributes signif¬
icant economic benefits. And it is not only the economic rela¬
tionship between husband and wife that the state shapes
through marriage. Marriage also structures the relationship be¬
tween the state and its citizens (as husbands or wives). For exam¬
ple, in considering the legal significance of marriage, the
Supreme Court of Vermont listed a variety of interests or rela¬
tions affected by marriage:

the right to receive a portion of the estate of a spouse who dies in¬
testate and protection against disinheritance through elective
share provisions; preference in being appointed as the personal
representative of a spouse who dies intestate; the right to bring a
lawsuit for the wrongful death of a spouse; the right to bring an ac¬
tion for loss of consortium; the right to workers’ compensation sur¬
vivor benefits; the right to spousal benefits statutorily guaranteed
to public employees, including health, life, disability, and accident
insurance; the opportunity to be covered as a spouse under group
life insurance policies issued to an employee; the opportunity to be
covered as the insured’s spouse under an individual health insur¬
ance policy; the right to claim an evidentiary privilege for marital
communications; homestead rights and protections; the presump¬
tion of joint ownership of property and the concomitant right of
survivorship, hospital visitation and other rights incident to the
medical treatment of a family member; and the right to receive,
and the obligation to provide, spousal support, maintenance, and
property division in the event of separation or divorce.14

The list encompasses not only the reciprocal economic relation¬

ship between spouses, but also the significance of the couple’s
relationship in regard to claims they tan make on third parties,
 WHY Mi A R.RIAGE? 105

such as landlords and tortfeasors. In addition, the list demon¬

strates that marriage conveys access to benefits and subsidies
from the state for spouses. Marriage plays a significant role in
the delivery of social goods from state to individuals.
Considering the role of the institution of the family in the al¬
location of these and other economic goods,15 it becomes partic¬
ularly important to ask why one religious group’s sense of what
is moral or divinely ordained should act to limit the options and
possibilities for us all. Why should marriage be the price of entry
into state support and subsidy? Why define the family through
this connection?

C. Arguing Meanings
People are not always clear about which of the many ways of
thinking about marriage inform the arguments that they make.
It is legitimate to demand that our policymakers and politicians
be specific about the roles or functions they ascribe to marriage
as they tinker with the institution. How do they understand mar¬
riage from a societal perspective, and how are they filling the
marriage-meaning void as the institution relates to individuals?
It may be the case that some advocates of privileging mar¬
riage are substituting an individualized meaning for a societal
rationale in their support for the institution. I argue that only so-
cietally based rationales should be considered legitimate in fash¬
ioning society-wide regulations and rules associated with the
institution of marriage. So long as we leave the infusion of
meaning into marriage to the individuals engaged in the institu¬
tion one couple at a time, the state should maintain a neutral
stance. State privileging is only justified when there is a corre¬
sponding legitimate state interest in the institution. Therefore,
society must justify the expression of its interest in marriage
through regulation and subsidy. What exactly is the state interest
should be the first question—the second is, why is this particular
intervention necessary to preserve or manifest it?
io6 THE AUTONOMY MYTH

In regard to the historic, societally based rationales for state

involvement with marriage, some, perhaps most, may no longer
seem appropriate in our changing world. For example, a couple
may want to marry because marriage means access to state sub¬
sidy in the form of economic and social benefits not available to
other forms of sexual affiliation. The same couple may also
want to marry because of the institution’s meaning to them as
individuals: a symbolic, cultural, or religious manifestation of
their relationship that will affirm their commitment to each
other.
If they are a same-sex couple, however, some religious leaders
and politicians will oppose such a marriage. They may do so be¬
cause they regard marriage as a natural, divinely ordained rela¬
tionship (an individualized, religious meaning). On the other
hand, they may do so because they view the subsidies of mar¬
riage as appropriately confined to heterosexual couples that
form reproductive units (a moral or tradition-based societal
meaning).16 It is at this point that the debate should begin. Indi¬
vidual meaning should not remove the need for the state to ar¬
ticulate a societal reason for exclusion of same-sex couples from
the economic benefits the state confers through the institution of
marriage.
I would argue that if we are to keep marriage as a legal and
privileged tie in our secular state, the state may appropriately
allow religious leaders to deny the ceremonial blessings to a
union of which they disapprove, but it may not correspondingly
deny the secular legal and economic consequences of that sta¬
tus. Thus it is illegitimate for tfie state to discriminate against
same-sex couples merely because they fail to fit within the tradi¬
tional, religious definition of marriage.
Given the recognition and openness of same-sex relation¬
ships, as well as the rise of other alternatives, and the general de¬
cline of the traditional family, the issue is whether the historic
 WHY M A R R I A G E ? 107

v
role of marriage as the exclusive mechanism to provide certain
economic benefits and protections can be appropriately main¬
tained. This was the question that set off the line of reasoning
used in Hawaii and Vermont cases in which the Supreme
Courts of those states mandated that same-sex couples be enti-
ded to all the privileges and benefits conferred on marital cou¬
ples.17 Looking at the current state of both marriage and
patterns of intimate behavior, the majorities in those cases con¬
cluded that the state must either open up that institution to
same-sex couples or create a nonmarriage category that confers
all the economic benefits of that status. The allocation of state
economic benefits was not to be limited by the moral or histori¬
cal and traditional meanings of marriage.
The questions faced by the courts in those cases—the ques¬
tions the rest of us have been avoiding thus far—included a con¬
sideration of when history and tradition should give way to new
patterns of behavior (such as nonmarital and same-sex cohabita¬
tion), as well as a reflection on the broader issue of when laws
should mirror a purely moral condemnation. This consideration
is particularly compelling when there is no societal consensus as
to whether the conduct in question is immoral. As the Hawaii
majority in Baehr noted, “constitutional law may mandate, like it
or not, that customs change with an evolving social order.”18
As illustrated in this chapter, the questions associated with a
modern consideration of marriage might become more compli¬
cated and difficult to answer if we must first reveal the meaning
(or meanings) we assign to the institution of marriage. This type
of consideration forces our focus away from the historic, sym¬
bolic nature or form of the marital relationship to the role or
function we want the institution of the family to serve in our so¬
ciety. It also reveals that we are making certain assumptions
about the capabilities and capacities of marriage as distin¬
guished from other types of family relationships in society—as-
io8 THE AUTONOMY MYTH

sumptions that may no longer be warranted—and about its

unique ability to accomplish certain societal functions.
Further, if we are clear about our expectations for and as¬
sumptions about marriage, it may become apparent that in
today’s world marriage is not the intimate family tie that should
warrant our concern. If we are concerned with dependency and
want to ensure caretaking through social and economic subsidy
of the family, then why not focus on the direct relationship of
caretaker/dependent? It is not necessary to support this unit in¬
directly through marriage when we can do so direcdy with care¬
taker/ dependent directed policies.

III. THE LAW OF MARRIAGE

Of course, as the Hawaii and Vermont cases indicate, when it

comes to marriage, we do not have a clean slate. Nor do we have
an institution consistent in nature and form over time. There is a
lot of writing on the walls, much of it in legalese in the form of
the special rules of “family law.” Not surprisingly, given the way
we have historically divided up the world into public and pri¬
vate, the law also reflects the notion of separate spheres. This
legal division complements the political and theoretical tenden¬
cies to distinguish the rules that apply to the family from those
that structure the state and the market. Law has conformed to
the assumption that each of these distinct spheres demands spe¬
cialized rules focused on the unique issues and institutional
arrangements contained within. While the market and state are
concerned with the law of contract a“nd property, mediated by
notions of due process and equity, the law of the family is rooted
in the status of marriage.
The special laws that apply to the family are consistent with
the idea that it is an autonomous', separate, and self-sufficient
 WHY M^A RRIAGE? IOg

entity. The unique nature of these rules has been justified by ref¬
erence to the family’s relational aspects and its intimate nature.
In fact, “family law” can be thought of as a system of exemp¬
tions from the everyday rules that would apply to legal interac¬
tions among people in a nonfamily context, such as the law of
contract and tort, as well as criminal law, property law, and rules
of equity. These exemptions are complemented by the imposi¬
tion of a set of special family obligations. Law defines the re¬
sponsibilities of family members toward one another and the
claims or rights they have, placing more duties on them vis-a-vis
one another than would apply were they strangers.19 It is not
surprising, therefore, that one common subject of family law lit¬
erature has been how to use law to redefine, reform, or regulate
intrafamily dynamics.
But family law does more than confer rights, duties, and obli¬
gations within the family. It also assumes and reflects a certain
type of relationship between family and state. As diagrammed
in the introduction to this section, during the nineteenth century
this relationship was typically cast as one of “separate spheres.”
Family (the private sphere) and state (the public sphere) were
perceived as largely independent of one another. This
metaphor of separation reflected an ethic or ideology of family
privacy in which state intervention was the exception.
The characterization of the family as autonomous—distinct
and separate from the state—still resonates in our rhetoric about
families. The family is designated the quintessentially “private”
institution. Family is distinguished from both the market and the
state (the quintessentially public institution) by its privateness. In
a sense, privacy is what defines the family, sets it apart from other
societal entities, and gives it coherence as a concept. For the
modern private family, protection from public interference re¬
mains the articulated norm—state intervention continues to be
cast as exceptional, requiring some justification.20
no THE AUTONOMY MYTH

However, privacy has not been awarded to just any group

considering itself a family. The contour of the family entitled to
protection through privacy has historically been defined as the
reproductive unit of husband and wife, giving primacy to the
marital tie. It was anticipated that this basic pairing would even¬
tually be complemented by the addition of children. In earlier
times, others, such as apprentices or servants, might “join” the
family.21 Extended-family members, such as elderly parents or
unmarried siblings, may also have been incorporated into the
family once its basic tie was forged. The legitimate family—the
one entided to privacy and protection—however, was defined in
the first instance through marriage.

IV. DEFINING THE FAMILY

While there might have been some consensus about the superi¬
ority of the marital family over other forms at some point in our
nation’s history (at least among political and economic elites),
today there is much disagreement about just who should be con¬
sidered “family.” The traditional core of husband and wife (with
or without children) seems to qualify under all definitions of
family. In fact, this reproductive unit is considered by many peo¬
ple to represent the “natural” and essential form of the family.
Some people argue that it should also be considered an exclusive
vision of family in terms of policy and law.22 In spite of the ten¬
dency of traditionalists to continue to equate the family with the
marital family, on an empirical level, family-like intimate entities
come in many different forms.
The most recent census data for the United States reveal that
for the first time in our nation’s history, less than a quarter of
households are made up of married, couples with their chil¬
dren.23 This is the form of family labeled by the Census Bureau
 WHY MARRIAGE? Ill
r

as “traditional.” The number of married-couple families with

children grew by just under 6 percent in the 1990s. By contrast,
families with children headed by single mothers increased by 25
percent during the same period.24 These families are not cen¬
tered around sexual affiliations. They are caretaking units and
reflect increases in nonmarital births and the continued rela¬
tively high divorce rate in the United States.
Empirically, it also seems that marriage is a less-dominant
form of intimate connection for heterosexual couples than in
the past. The number of heterosexual unmarried couples has
increased geometrically over the past few decades. The recent
census figures indicate that in 2000, 4.9 million households were
classified as opposite-sex unmarried-partner households.25 In
1970, there were only 523,000 such households identified.26
Many of these cohabiting couples are also caretaking units and
have children. In fact, according to the census data, about half
of the children living with cohabiting parents are living with
both their biological parents.27 Others live with one biological
parent and his or her cohabitant, resembling a stepfamily situa¬
tion.
The Census Bureau’s special report, “Married-Couple and
Unmarried-Partner Households: 2000,” actually begins by
making note of the ongoing changes in family form: “[a] reflec¬
tion of changing life styles is mirrored in Census 2000’s enumer¬
ation of 5.5 million couples who were living together but who
were not married, up from 3.2 million in 1990.”28 Even the ques¬
tionnaire used to gather information for the 2000 census reflects
the potential complexity of the definition of a household. When
determining how household members are related to the head of
household, the questionnaire provides ten options for related
household members, including “other relative—print exact re¬
lationship” and an additional five categories of unrelated house¬
hold members.29 The statistics on unmarried partners include
112 THE AUTONOMY MYTH

both opposite-sex couples, which account for 4.9 million of the

households in question, and same-sex couples, which account
for 594,000 households, or about one in nine of the total
unmarried-partner households.30 Since my objective is to re¬
place the marital family and its sexual and reproductive af¬
filiation as the core tie, with the caretaking family and its
relationship of care and dependency as central to the objective
of social policy, the sexual orientation of the adults within the
entity is irrelevant.31
In addition to married-couple and unmarried-partner house¬
holds, the census also identifies a growing number of units des¬
ignated as “nonfamily households,” which consist of people
living alone or with people to whom they are not affiliated or re¬
lated in terms the Census Bureau recognizes. Growing at twice
the rate of family households, these nonfamily households now
make up about one-third of the total units.32 Some of these
households undoubtedly consist of unidentified same-sex part¬
ners who would obviously resent the label “nonfamily” being
applied to their relationship. Of course, these other “nonfam¬
ily” units may have forms of intimate connection other than the
sexual one—they may be families of choice forged through
bonds of platonic affection. Such groupings may be constituted
by nonsexual affiliates who are merely “friends” or household
units composed of siblings or adult children and their elderly
parents. These units may also be desirous of family status and
the material and symbolic rewards it confers.
The census figures show us changed and changing forms of
intimate connection, but as the discussion of the civil societarian
position in chapter three indicates, understanding family is
about more than awareness of the current demographics. The
family has an institutional and cultural history, and for many, the
term “family” represents a constellation of values and norms
with far-reaching emotional and psychological significance.
 WHY MARRIAGE?
A . , ll3
V

It is the marital family that has historically been viewed as the

foundation of society, as the “healthy” form of family essential
for the well-being of the nation, as well as for individuals. Many
in our society would not even count some of the units described
in the census report under that category of families. Others
might concede the designation, but modify “family” with terms
such as “broken” or “nonmarital,” even “illegitimate,” signify¬
ing that those units deviate from the ideal marital norm. For
them, it is the traditional unit alone—based on the marriage of
one man and one woman—that is indisputably entided to the
label “family.”
This notion of the marital family as foundational to society
has resonated across centuries in our legal rhetoric—it is re¬
flected in the very organization of our laws and the nature of
legal subjects constructed under them. Compare Justice Field’s
1887 opinion that marriage “is an institution, in the mainte¬
nance of which in its purity the public is deeply interested, for it
is the foundation of the family and of society, without which
there would be neither civilization nor progress”33 with the lan¬
guage of a more recent court case. In Feliciano v. Rosemar Silver
Co., the court held “[mjarriage is not merely a contract between
the parties. It is the foundation of the family. It is a social institu¬
tion of the highest importance. The Commonwealth has a deep
interest that its integrity is not jeopardized.”34
We can also look to the privileged positioning of marriage in
the welfare reform bill that came into effect in 1996 (the Personal
Responsibility and Work Opportunity Reconciliation Act):
“Congress makes the following findings: (1) Marriage is the
foundation of a successful society. (2) Marriage is an essential in¬
stitution of a successful society, which promotes the interests of
children.”35
In the twenty-first century, our president echoes this ancient
mantra, linking it to more focused concerns about the relation-
114 THE AUTONOMY MYTH

ship between marriage and child well-being. The presidential

initiatives have resulted in the passage of new, marriage-
oriented legislation: bringing the issue of marriage onto the na¬
tional stage, George W. Bush in March 2002 opined that too
many families were fragile and broken. The president proposed
spending $300 million to promote marriage as part of the re¬
consideration of the 1996 welfare reform that was scheduled.36
Bush proposed funding programs that help couples work out
their problems before and during marriage. His analysis was
based on the following assertion: “You see, strong marriages and
stable families are incredibly good for children, and stable fami¬
lies should be the central goal of American welfare policy.” Pro¬
moting marriage was also part of the 1996 law that ended
welfare as an entidement, but only five states actually ended up
using federal dollars for this purpose. As Congress prepares to
hash out the reauthorization of the welfare law, marriage is
more central, and a debate looms over what role government-
sanctioned marriage promotion should play in fighting poverty.
Some commentators argued we would do much better to
fight poverty more directly. According to the 2000 census fig¬
ures, 6 percent of families with two parents lived in poverty,
compared to 33 percent of families headed by single mothers.
Responding to such figures and asserting that marriage is not
the answer to relieve the poverty of women and children, femi¬
nist groups such as the National Organization for Women point
out that poor women would benefit more from higher-wage jobs
with good benefits than from premarital counseling.
Stephanie Goontz, national co-chair of the Center for Con¬
temporary Families, was also interviewed when the Bush pro¬
posals first surfaced. While not arguing against providing
counseling for fragile families who cannot afford it, Coontz wor¬
ried that marriage promotion would be stressed at the expense
of what she considered “true anti-poverty programs.”
 WHY MARRIAGE? 115

Often, Coontz said, not being married is a symptom, not a

root cause of poverty. Her own research shows that men who be¬
come unwed fathers are more than twice as likely as married fa¬
thers to be unemployed and to have physical or psychological
problems that interfere with their ability to hold jobs. In addi¬
tion, unemployed men are far less likely than employed men to
form and sustain stable relationships, while men who have stable
jobs tend to seek mates who also have higher educational levels
and earnings potential.
Coontz and other researchers point out that pushing mar¬
riage while failing to give parents long-term support systems
may do more harm than good. ‘Job education and training are
what people need.” Coontz said. “It makes them more mar¬
riageable and makes marriages more likely to be stable but
doesn’t penalize children in those families if the marriage breaks
up or they don’t get married.” While good marriages may be
positive, endorsing marriage at all costs could put children at
risk of living in unhappy two-parent homes. Another potentially
destructive consequence is setting children up for instability and
disappointment when their parents’ relationships fail. Statistics
show that marriages and long-term relationships among poor
adults are more at risk of breaking down than those of finan¬
cially stable citizens.

V. MARRIAGE IN CONTEXT

The American marital entity has an interesting lineage as a legal

category. It is directly tied to one religious set of concepts and be¬
liefs. Looking back into its legal history, we see that marriage was
not created de novo as an American institution. As a legal relation¬
ship, its content and terms were drawn from British institutions
that had evolved rules exemplifying rigid relationships.37
ii6 THE AUTONOMY MYTH

In England there was a direct historic connection between

the state religion and the legal treatment of intimate relation¬
ships. Marriage was a sacrament administered by the church
and subject to its rules. Under the common-law system in effect
in England until fairly recendy (as legal institutions go), issues
concerning the creation and dissolution of marriage and other
aspects of family formation were left to the ecclesiastical courts.
It was not until the passage of the Matrimonial Causes Act of
1857 that jurisdiction over marriage and divorce was transferred
to civil courts.38
Consistent with the precepts of these courts’ religious ap¬
proach, marriage was viewed as a lifelong commitment. An an¬
nulment or, failing that, desertion were virtually the only routes
out of an unhappy union.39 The Church of England’s ecclesias¬
tical courts could grant a divorce “from bed and board,” which
allowed couples to live apart, but not to remarry.40 Divorce was
theoretically available, but only through a special act of Parlia¬
ment, and between 1800 and 1836, an average of three such bills
of divorce were granted each year.41 Generally, access to divorce
was limited until the late twentieth century.
This view of the presumed permanence of marriage was also
evident in colonial America, where divorce could be granted by
a secular judiciary, though this rarely happened.42 In fact, prior
to the mid-twentieth century in the United States, judicial di¬
vorce, although increasingly common over time, was available
only for “cause.”43
An “innocent” spouse could ask the state to sever the marital
tie when she or he was successful in,,demonstrating the “fault” of
her or his mate. Fault grounds indicated there had been some
egregious offense to the very marital union. At that time, states
such as New York only permitted divorce for very serious of¬
fenses that were considered to undermine the nature of the mar-
ital connection, such as adultery.^Other states considered the
 WHY aM A R R I A G E ? 117

amorphous category of “cruelty” to be a sufficient basis for dis¬

solution.45 Colonial divorce laws varied considerably by region,
and the northeastern states tended to be slightly more liberal
than their southern neighbors.46
In the United States, there was no established state religion
but the relationship between religious perceptions and beliefs
about marriage and the construction of state principles regard¬
ing that connection was still evident, if attenuated. The individ¬
ual states incorporated common-law concepts and definitions
from the religiously shaped English rules into their laws govern¬
ing family. American judges tracked the religious rhetoric of
their English counterparts when considering issues involving the
family.
Divine laws governed family relationships, setting out the nat¬
ural order for the individuals who entered them.47 The content
of the marital relationship was also divinely structured. In what
has become one of the most famous concurrences in the Amer¬
ican legal tradition, in the 1873 Supreme Court case of Bradwell
v. Illinois, Justice Bradley made what is still considered the classic
statement regarding the common-law perception of the divinely
determined distinct roles of husbands and wives:

[T]he civil law, as well as nature herself, has always recognized a

wide difference in the respective spheres and destinies of man and

woman. Man is, or should be, woman’s protector and defender.

The natural and proper timidity and delicacy which belongs to

the female sex evidently unfits it for many of the occupations of

civil life. The constitution of the family organizadon, which is

founded in the divine ordinance, as well as in the nature of things,

indicates the domestic sphere as that which properly belongs to

the domain and functions of womanhood. The harmony, not to

say the identity, of interest and views, which belong, or should be¬

long to the family institution is repugnant to the idea of a woman

ii8 THE AUTONOMY MYTH

adopting a distinct and independent career from that of her hus¬

band. So firmly fixed was the sentiment in the founders of the

common law that it became a maxim of that system of jurispru¬

dence that a woman had no legal existence separate from her hus¬

band, who was regarded as her head and representative in the

social state ... 48

As this quote so clearly illustrates, the marital family—the “tra¬

ditional family” of the common law and the Church of En¬
gland—was defined by distinct and hierarchical roles across
gender.
The organization of the family in the British and American
legal tradition was also patriarchal, with the husband—“head”
of the family—owed obedience and the wife performing do¬
mestic and sexual services for him. In return, he was obligated to
support her and their children. The husband’s role conferred
rights as well as responsibilities, including the right to punish
family members. Since he bore responsibility for their actions, a
husband had the right to reasonably chastise both wife and chil¬
dren. His support obligations gave him a corresponding right to
the earnings of his wife and children, and to control over their
property.49
Further, the view of marriage expressed by Justice Bradley on
the divinely ordained respective positions of the spouses also
limited the expectations and opportunities for married women
in the larger society. The marital family’s hierarchically orga¬
nized and well-defined gender roles placed the spouses in differ¬
ent spheres. Women, excluded from, many of the public aspects
of life, were perceived as appropriately dependent. As the
Bradley concurrence in Bradwell expressed, their true calling was
considered to be the home and family.50
This ordering of domestic life w;as intuitive—responsive to
the natural dependency of women. Common law-imposed dis-
 WHY MARRIAGE?
n9

abilities on women supported this ordering of the world. Mar¬

ried women were not able to own property or to make con¬
tracts.51 In some instances, they could not even be held
responsible for their own torts or crimes. Their husbands, per¬
ceived as controlling them absolutely, were charged instead.52
The common law expressed a structure in which the distinct
specialization of the spouses complemented each other—the
wage earner and the housewife; the protector and the protected;
the independent and the dependent. Each spouse needed his or
her complement in order to attain and maintain a whole, com¬
plete family entity, an entity that provided for all its members’
needs. This specialization, bringing together the head and the
heart of the family in the form of husband and wife, allowed the
marital family to function in a self-sufficient manner, providing
both economic and domestic resources to the unit.

VI. CONCLUSION

This unequal, if complementary, positioning of men and

women within the common-law family was revealed as prob¬
lematic for women when divorce became more prevalent under
no-fault statutes.53 These statutes changed a fundamental aspect
of marriage. Marriage in its common-law manifestation was
considered a lifelong commitment, but no-fault divorces ush¬
ered in a revolution in our way of thinking about the perma¬
nence of the relationship of marriage. No-fault meant much
easier access to divorce. In many states, divorce became avail¬
able on unilateral demand of one spouse, even over the objec¬
tion of the other that the relationship could be salvaged. Men
who wanted to be free of their “faultless” wives (as determined
under the previous fault divorce statutes) no longer had to bar¬
gain with those wives and buy their complicity in the divorce
120 THE AUTONOMY MYTH

process through concession of property or other economic in¬

centives.
Initiated by both wives and husbands, no-fault opened the di¬
vorce floodgate and exposed the economic vulnerability of the
common-law assignment of ownership of all wages and prop¬
erty to the wage earner. Wives were not considered entitled to a
share of property accumulated during the marriage, since they
did not earn the money to buy it, and since typically title was in
the husband’s name. As a result, women found themselves and
their children destitute at divorce.54
The discouragement of married women from participation
in the workplace and investment in a career under the Bradwell
system also had more general negative economic implications.
After divorce, women found that they had to work in the mar¬
ketplace as well as in the home, yet the old vision of marriage
had discouraged them from honing those skills they needed to
do so.
All of this has changed, of course. The no-fault revolution co¬
incided with another revolution in the way we understand the
world—the gender-equality movement, which ushered in mas¬
sive changes in all phases of life, including marriage. These
changes are examined more fully in the next chapter.

\
 Chapter Five

The Future of Marriage

I. INTRODUCTION

This chapter asks the question: given changes in the legal regu¬
lation of marriage, coupled with changing patterns of intimate
behavior, why should marriage continue to be the exclusive, pre¬
ferred core or basic family connection? It is marriage that is as¬
serted to be the tie that defines which families are legitimate.
For some critics of the status quo, the issue is the inclusion of
alternatives to the husband/wife dyad within the category of
marriage. For others, the question is marriage itself as a legal
construct that carries with it significant societal benefits. Why
should marriage be so privileged? Some proponents of abolish¬
ing marriage as a legal category argue that marriage should be
replaced by contract, allowing couples to structure their rela¬
tionships in the ways they want. According to this position, there
is no reason for the state to be involved in the articulation and
imposition of those terms any more than it would be involved in
the enforcement of contracts in general.
122 THE AUTONOMY MYTH

Feminists might also point but that one of the state’s historic
interests in the institution was to use regulation of marriage and
divorce to mediate relations of dependency between husbands
and wives. Since wives are no longer dependent persons who are
confined to home and hearth, there is no longer any appropriate
rationale for the state’s involvement in marriage. Given aspira¬
tions of gender equality, which posit that couples are capable of
making their own marital terms and freely deciding when and
for what reasons to dissolve their relationship, it should be they,
not the state, who make such determinations. What is, and what
should be, left of marriage as a status in modern American soci¬
ety? What societal purposes could state intervention and regula¬
tion of marriage serve in a no-fault, prenuptial-recognizing,
gender-egalitarian world? Shouldn’t private lives be left to pri¬
vate ordering—to contract?
Further indicating to many that it is time for a serious re¬
assessment of marriage and its role in society is the fact that
marriage drags along with it certain historic assumptions about
the institution and its members that limit the coherent develop¬
ment of family policy. Marriage also impedes other policy for¬
mation: it is offered as the social policy resolution for poverty in
welfare debates. Marriage may in fact be the only clear and con¬
sistent family policy idea developed in the United States. The
existence of the institution and assumptions surrounding it dis¬
tort our policy and politics. The theoretical availability of mar¬
riage interferes with the development of other solutions to social
problems involving children and poverty.
As the various (and by no mqans exhaustive) meanings of
marriage listed in the previous chapter indicate, marriage is ex¬
pected to do a lot of work in our society. It is not to quibble that
much of this work must be done. Children must be cared for and
nurtured; dependency must be addressed; and individual happi¬
ness is of general concern. However, we should be asking our-
 THE FUTURE OF MARRIAGE 123
* - ,
r
selves as we consider each of these tasks, what does marriage
have to do with it? Is the existence of the institution of marriage,
in and of itself, essential to accomplishing any of the societal
goals or objectives we seek to bring about?
In this chapter, I argue that for all relevant and appropriate
societal purposes, we do not need marriage and we should abol¬
ish it as a legal category. I argue that we should transfer the social
and economic subsidies and privilege that marriage now re¬
ceives to a new family core connection—that of the caretaker-
dependent. In making this proposal, I want to be very clear
about two things. First, to state that we do not need legal mar¬
riage to accomplish many societal objectives is not the same
thing as saying that we do not need a family to do so for some.
However, family as a social and legal category should not be de¬
pendent on having marriage as its core relationship. Nor is fam¬
ily synonymous with marriage.
Family affiliations are expressed in different kinds of acts,
only some of which are recognized by the law. Some affiliations
are sexually based, as with marriage. Some are forged biologi¬
cally, as with parenthood, although this tie can also be created
legally through adoption. Other affiliations are more relational
in nature, such as those based on nurturing or caretaking or
those developed through affection and acceptance of interde¬
pendence.
Second, even if we conclude we don’t need marriage as a
legal category, this does not mean that marriage as a societal in¬
stitution would disappear. The symbolic dimension of mar¬
riage—the coming-together of two individuals with vows of
love and commitment—would most likely continue to exist as a
social, cultural, and/or religious construct.1 Without legal sta¬
tus, however, marriage would no longer be the privileged mech¬
anism whereby the state distributes certain social goods.
124 THE AUTONOMY MYTH

II. “man AND wife”-FROM PROTECTED TO PARTNERED

The move to no-fault divorce might have altered our view of

marriage, but the gender-equality revolution altered the way
women perceive their societal, extrafamilial roles. It seems hard
to believe that it was less than a century ago that women won
important political and civil rights, such as the vote, which was
achieved in 1920 with the passage of the Nineteenth Amend¬
ment.2 Even after women achieved the right to vote, they were
still excluded from service on juries. Although the first women
were summoned to jury service in 1870, as a rule, women were
systematically denied or exempted from jury service for the next
century, usually for reasons that were considered “benign” and
“practical.”3 It was not until 1994 that the Supreme Court de¬
clared that peremptory challenges based on sex do violate the
Equal Protection Clause of the Fourteenth Amendment.4
Until recently, the common-law rule was that a woman’s
domicile (essentially her legal place of residence) was always the
same as her husband’s. This caused difficulty for many married
women, as a person’s domicile is used in determining marriage
validity, the award of a divorce, custody, adoption, tax liability,
probate, and guardianship, as well as the right to vote, to hold
and run for public office, to receive state benefits, or to qualify
for tuition benefits at state colleges and universities.5 Because a
woman’s legal identity had traditionally been merged with that
of her husband, her domicile was assigned based on her
husband’s place of residence, and a woman had no control over
this determination. As divorce laws changed and women’s des¬
tinies were less tied to the institution of marriage, the inap¬
propriateness of this situation became more obvious. The
common-law rule began to change in the 1970s, and the Ameri¬
can Law Institute (ALI) finally ratified this change in 1988.6
An important part of the mov^' to gender equality involved
 THE FUTURE „OF. MARRIAGE
«5
y

women’s seeking to (or being forced to) forge an attachment to

the workplace independent of marriage and husband. Many
younger and well-educated women began to think of self-
fulfillment and careers as their due, but certainly the instability
of marriage after the introduction of no-fault divorce also
helped to build momentum, pushing and pulling women out of
the private family sphere and into the world of wage work. But
in addition to altering expectations for women about work and
career, the gender-equality revolution also had profound impli¬
cations for the way we as a society view marriage and divorce.
Further, other rules beyond those governing divorce reflect
the idea that women and men are equal. Massive changes have
occurred in the workplace and other aspects of public life that
have had a profound impact on the way that women are per¬
ceived as actors, both in the family and in the larger society.
Women are no longer seen as incapable of bargaining and con¬
ducting business. Women have effectively undermined the idea
that they are “unfit for many of the occupations of civil life,” to
use Justice Bradley’s terms.
The view that women are competent in regard to business-
type transactions has had an impact within, as well as outside of,
the family. This has been particularly evident in the courts’
changing approach to the validity of prenuptial agreements.
Historically, courts refused to recognize such agreements, assert¬
ing that they violated public policy by altering the essential as¬
pects of marriage, specifically the support obligation.7 Judges
were also concerned with the unequal bargaining position of
women relative to men. As women gained the presumption of
equality in the work world, “paternalistic” notions in the context
of family law were eroded. Today, such agreements are rou¬
tinely enforced, providing there is disclosure of financial infor¬
mation and meaningful consent to the terms.8
When applying these ideas in the context of real divorces,
126 THE AUTONOMY MYTH

judges have explicitiy recognised that women are equally capa¬

ble of making valid contracts that alter the otherwise default
legal rights and responsibilities of a marriage. In Simeone v. Sime-
one (1990), the court set aside the presumption that prenuptial
agreements were invalid, acknowledging that society had
changed in ways that required corresponding changes in the law:

There is no longer validity in the implicit presumption that sup¬

plied the basis for . . . earlier decisions. Such decisions rested
upon a belief that spouses are of unequal status and that women
are not knowledgeable enough to understand the nature of con¬
tracts that they enter. Society has advanced, however, to the point
where women are no longer regarded as the “weaker” party in
marriage, or in society generally. . . . Nor is there viability in the
presumption that women are uninformed, uneducated, and read¬
ily subjected to unfair advantage in marital agreements. Indeed,
women nowadays quite often have substantial education, finan¬
cial awareness, income, and assets. . . . Accordingly, the law has
advanced to recognize the equal status of men and women in our
society. . . . Further, [earlier decisions] embodied substantial de¬
partures from traditional rules of contract law. . .. Prenuptial
agreements are contracts, and, as such, should be evaluated under
the same criteria as are applicable to other types of contracts. Ab¬
sent fraud, misrepresentation, or duress, spouses should be bound
by the terms of their agreements.9

Prenuptial agreements came to enjoy a presumption of valid¬

ity, as long as they were made voluntarily and with full disclosure
of financial information. Some courts still maintain the addi¬
tional requirement that an agreement be substantively “fair” to
both parties. Even so, these courts typically recognize the
changes in gender expectations. For example, while the Supreme
Court of Kentucky maintained 'that the terms of prenuptial

v
 THE FUTURE* OF MARRIAGE
I27
r

agreements must still be “fair, reasonable, just, equitable, and ad¬

equate in view of the conditions and circumstances of the par¬
ties,” it also observed that “the legal status of marriage partners
is vastly different today” and that earlier cases had been decided
at a time when “the status of women in this society was decidedly
second class.”10
The more modern approach is exemplified by the case In Re
Marriage of Greenwald, in which the Wisconsin Court of Appeals
upheld a prenuptial agreement that resulted in a highly unequal
division of property between the parties, despite the fact that
Wisconsin law had previously required that the division of the
property at divorce must be fair to each spouse.11 The Greenwald
court based its decision on the fact that at the time of contract¬
ing, both parties were fully aware of each other’s financial situa¬
tion, and that they had intentionally created an agreement that
would keep their property separate and allow it to pass to their
respective lineal heirs, rather than to each other. The court
stated that if a person would have entered into the marriage
anyway, and if the agreement was freely and voluntarily made,
then “we see no sound reason why the law should later intervene
and undo the parties’ contract.”12 Rather than uphold the
(newly) traditional presumption of equal property division, the
court recognized that as equals, the parties had the right to make
an agreement that was intended to have an unequal result in the
event of a divorce.
Several uniform laws also explicitly recognize the ascendancy
of a contractual view of marriage, based on the parties’ equal
status. The Uniform Premarital Agreement Act of 1983 states
that premarital agreements should be enforced as long as they
are voluntary, the terms are not unconscionable, there was fair
and reasonable disclosure of the parties’ property and financial
obligations, and the agreement does not cause either party to
become eligible for public assistance or support. Note the lim-
128 THE AUTONOMY MYTH

ited possibility of a fairness review in this model legislation. A

court would retain the right to modify such agreements, even if
otherwise valid, to the extent necessary to require a party to fi¬
nancially support a former spouse in order to prevent them from
transferring their economic dependency onto the state.
The most recent statement on this issue from a national body
is found in the Proposed Rules for Dissolution of Marriage,
drafted by the American Law Institute (ALI), which is composed
of lawyers, judges, and policymakers. The ALI recommends
that married couples, as well as those in domestic partnerships,
be allowed to “accommodate their particular needs and circum¬
stances by contractually altering or confirming the legal rights
and obligations that would otherwise arise.”13 This ability
would be “subject to constraints that recognize competing pol¬
icy concerns and limitations in the capacity of parties to appre¬
ciate adequately, at the time of the agreement, the impact of its
terms under different life circumstances.”14 Like the Uniform
Premarital Agreement Act and the majority of case law, the ALI
recognizes that married couples, like unmarried domestic part¬
ners, are qualified to make agreements that modify the tradi¬
tional obligations that attend such relationships.15
As the evolution in the rules governing the acceptance of pre¬
marital contracts indicates, marriage is becoming more and
more like other legal relationships in regard to the individual’s
ability to create or limit responsibilities and risks through con¬
tract. With the recognition of equality between women and
men, we assume parity in bargaining capacity on the part of in¬
dividuals entering these relationships, and no longer see a need
for the protective intervention of the state.
Meanwhile, as formal marriage and family are redefined, we
now see nonmarital relationships between sexual affiliates being
given marriage-like consequences. Equitable or implied con¬
tractual principles result in allocation of property or other
 THE FUTURE OF MARRIAGE 129
A . ,

r
economic adjustments at the termination of a nonmarital co¬
habitation relationship in ways similar to the rules that apply
upon divorce in many states.16 In its Proposed Rules, the Ameri¬
can Law Institute recommends that when domestic partners ter¬
minate their partnership, their property be defined and divided
by the same body of rules by which this process would occur if
the parties were legally married.17 Domestic partners are de¬
fined as “two persons of the same or opposite sex, not married
to one another, who for a significant period of time share a pri¬
mary residence and a life together as a couple.”
Unlike the Vermont statute that recognizes civil unions for
same-sex couples and grants them the “common benefits and
protections that flow from marriage under Vermont law,”18 the
ALPs Proposed Rules include all domestic partnerships,
whether the parties are same-sex or opposite-sex nonmarital
couples.19 The rules also do not require registration or any kind
of formal affiliational act, which further distinguishes the ALI
proposal from the Vermont statutory scheme.
In fact, the ALI proposal creates a presumption based on cer¬
tain behavior that people who are living together are domestic
partners: “Persons not related by blood or adoption are pre¬
sumed to be domestic partners when they have maintained a
common household ... for a continuous period [of specified
duration]. The presumption is rebuttable by evidence that the
parties did not share life together as a couple . . .” “Sharing life
as a couple” is determined by reference to such things as repre¬
sentations to others, intermingling of finances, the existence of
a relationship that fostered economic interdependence or de¬
pendence of one partner upon the other, assumption of special¬
ized or collaborative roles in furtherance of life together,
emotional or physical intimacy, and other factors indicating
commitment, even if there is no formal declaration of such.20
The point is that it is not the formal status of marriage, or
130 THE AUTONOMY MYTH

even a certificate or registration process, that is being used to as¬

sess rights and responsibilities, but the nature and quality of the
relationship that the partners have crafted. There is, at least on a
theoretical level, less and less need for a well-established system
of default rules imposed by the state.

III. BACKLASH

The move to a more liberal divorce process has generated a

backlash that extends beyond the transformations in the institu¬
tion of marriage to the whole concept of gender equality that
undergirds many of those changes. Religious pockets of resis¬
tance are particularly visible, and what they seek to restore is not
only the lifelong aspect of marriage, but also its patriarchal or¬
ganization.
One of the most extreme expressions of this backlash is the
growth of the Promise Keepers, a Christian men’s group that
claims to be “committed to building strong marriages and fami¬
lies through love, protection and biblical values.”21 The Promise
Keepers believe that these changes will be accomplished by a re¬
turn to the traditional family structure in which the husband is
the head of the household and the wife is subservient and obedi¬
ent to him in all ways.22
Southern Baptists have also demonstrated a growing commit¬
ment to the return to traditional marital roles. In the 1998
Southern Baptist Convention in Salt Lake City, a majority of
the attendees declared their adherence to Paul’s words to hus¬
bands and wives. The first advice was to wives, who are in¬
structed to “[sjubmit yourselves to your own husbands, as to the
Lord.”23 This was interpreted by the delegates to the convention
as calling for a voluntary yielding in love on the part of the wife.
Husbands are not directed to subjugate wives; rather, wives are

v
directed to “take submission into their own hands.”24 This state
of affairs is viewed not as benefiting the husband, at least not
primarily, but as consistent with God’s natural order of things—
“a mirror of the relationship between Christ and church.”25
Feminist criticism was noted during discussions of this posi¬
tion, but was dismissed because, even though such objections
may raise “sensitive and important issues . . . none of them is
substantial enough to move Bible-believing Christians away
from affirming the truths [that Paul teaches].”26 Feminist the¬
ologians and others who favor a more egalitarian approach to
marriage have been accused of taking a position that “assumes
the egalitarian worldview and then ‘hijacks’ the Bible to make it
fit. Texts are either accepted, rejected, ignored, revised accord¬
ing to the way they fit in with that motif... a mistake of the
greatest gravity [because] it is plain that while the Bible teaches
equality, it does not affirm egalitarianism or interchangeability in
all things, but rather calls for distinguishable roles between men
and women.”27
The Promise Keepers treat feminists even more harshly. A
prominent Promise Keepers leader has said: “I believe that fem¬
inists of the more aggressive persuasion are frustrated women
unable to find the proper male leadership. If a woman were re¬
ceiving the right kind of love and attention and leadership, she
would not want to be liberated from that.”28 In this view,
women, like children, are not equals, but dependents who must
be guided and controlled.
Even if pro-traditional-marriage/antidivorce sentiments are
not based in religion, as they are with the Promise Keepers, as¬
sertions about the significance of marriage abound. These ideas
do not exist in isolation, but are an integral part of systems of
belief about the appropriate ordering of the world. Some mem¬
bers of society believe that the no-fault divorce laws have gone
too far, in that people can now marry without serious considera-
I32 THE AUTONOMY MYTH

tion of the consequences (since they know they can leave the re¬
lationship more easily than before) and can divorce too quickly,
without trying to address solvable problems in their marriage.
Part of the political backlash against no-fault divorce has re¬
sulted in the introduction in Louisiana and a few other states of
something called “covenant marriage,” which has been de¬
scribed as “part of a larger effort to redefine and bolster tradi¬
tional marriage in order to reduce divorce, unwed mothering
and single parenthood.”29 Covenant marriage is an attempt to
create a situation that is described as supporting the more “tra¬
ditional” vision of marriage, in that it is more than just a return
to the former fault-based requirements for divorce.
Couples who wish to enter a covenant marriage must attend
premarital counseling, after which they must produce a nota¬
rized affidavit signed by them and their counselor indicating
that they have discussed topics relating to the seriousness of
marriage. They also must sign a “Declaration of Intent” that af¬
firms the following principles: “[A] marriage is an agreement to
live together as husband and wife forever; the partners chose
each other carefully and disclosed to each other everything
about their personal histories that might hurt the marriage; the
couple received premarital counseling from a priest, minister,
rabbi, or state-recognized marriage counselor; and the partners
agree to take all reasonable efforts to preserve their marriage if
they experience marital difficulties.”30
Although the name evokes religious imagery, covenant mar¬
riage, proposed and passed by the legislature, is a legal entity
rather than a religious construction. It is an alternative to the
marriage in operation under the no-fauit divorce system, and it
is presumably more difficult to dissolve. While it is available to
all Louisianans who apply for a marriage license, it appears that
covenant marriage has not become widespread since its intro¬
duction in 1997. One survey, done'in 1998, showed that only 1.5
 THE FUTURE* O F MARRIAGE
*33
r

percent of new marriages were covenant marriages, and that

some people believed the entire idea was just “a cynical attempt
by legislators to cater to pro-family constituencies without hav¬
ing a real effect.”31
Despite backlash trends to the contrary, the liberalization of
divorce rules is likely to remain. As statistics reveal, Americans
freely take advantage of access to no-fault divorce, and the cen¬
sus figures show that nonmarital cohabitation continues to grow
in popularity as an alternative to marriage.32 It seems clear that
marriage no longer represents the lifelong commitment it re¬
flected in the common law. Nor do many women now expect
that entering into marriage will be, for them, a relationship of
domination and subordination.

IV. RETHINKING THE RELATIONSHIP OF STATE TO MARRIAGE-

A THOUGHT EXPERIMENT

The shift to a more individual and egalitarian form of marriage

raises the question of whether the institution should continue to
be given a preferred status by the state vis-a-vis other affiliative
relationships. Marriage certainly does not have the same rele¬
vance as a societal institution that it did even fifty years ago, when
it was the primary means of protecting and providing for the
legal and structurally devised dependency of wives and children.
How should these changes affect our perceptions of mar¬
riage? Covenant marriage offers an instance in which the state
establishes two legal forms of marriage from which couples can
choose. Why stop with two? We could open up the category of
marriage to the alternative arrangements that people are now
practicing. On the other hand, we might take seriously the idea
that adults should be free to fashion the terms of their own rela¬
tionships and rely on contract as the means of so doing, effec-
i34 THE AUTONOMY MYTH

tively replacing the marital status with actual negotiation and

bargaining, building on the increased acceptance of premarital
agreements.
What are the advantages of abolishing marriage as a legal
category? For one thing, it would make policy conform to our
modern aspirations. On an individual level, abolishing legal
marriage and the special rules associated with it would mean
that we are taking gender equality seriously. If people want their
relationships to have consequences, they should bargain for
them, and this is as true with sexual affiliates as with others who
interact in complex, ongoing interrelationships, such as employ¬
ers and employees. This would mean that sexual affiliates (for¬
merly labeled husband and wife) would be regulated by the
terms of their individualized agreements, with no special rules
governing fairness and no unique review or monitoring of the
negotiation process.33
It is possible to view this call for the abolition of marriage as a
demand for private ordering. But a proposal for the abolition of
marriage as a legal category involves much more than just a sim¬
ple preference for privatization of potential economic conse¬
quences. It is a step necessary for gender equality. Abolishing
marriage as a legal category would not mean there would re¬
main no protection for the economically weaker party.
For example, the interests of a cohabitant who contributed to
the accumulation of wealth for the other, even if she did not
have a contract, would be protected to some extent by default
and equity rules. The general regulatory rules found in equity
(such as unjust enrichment or constructive trust), partnership,
and labor law could provide rules for 'decisions in disputes in¬
volving sexual affiliates. Constitutional and civil rights law offer
some suggestive possible parameters for exploration of potential
economic consequences ol joint endeavprs undertaken by those
who formerly would have been exempt as family members.34
In other words, in addition to contract rules, I anticipate that
 THE FUTURE A OF. MARRIAGE
x35
P

ameliorating doctrines would fill the void left by the abolition of

this aspect of family law. In fact, it seems apparent to me that a lot
more regulation (protection) would occur once interactions be¬
tween individuals within families were removed from behind the
veil of privacy that now shields them. For example, without the
defense of marriage, there would be no reason not to apply
the regular rules of tort and criminal law to sexual affiliates.
Feminists have been pointing out for over a century that the
institution of marriage is the location of a lot of abuse and vio¬
lence. This is not surprising in an institution that is based on an
unequal and hierarchical social arrangement in which men are
considered the heads of households, with power and authority
over wives and children. Once the institutional protection was
removed, behavior would be judged by standards established to
regulate interactions among all members of society.
What would be the practical implications of abolishing mar¬
riage from this perspective? Since it would no longer be avail¬
able as a legal status, marriage would no longer be considered a
defense to rape. It would also be more problematic to conceptu¬
ally bracket off some assaults as “domestic” violence, rendering
them somehow less serious than the nondomestic variety.35 Per¬
haps we would even begin to develop theories of tort to com¬
pensate sexual affiliates for conduct endemic to family
interactions but considered unacceptable among strangers. A
tort for intentional infliction of emotional or psychological
harm might emerge.36 Norms that prohibit harassment (includ¬
ing stalking), verbal assault, and emotional abuse among
strangers would be applied in defining appropriate conduct be¬
tween sexual intimates.37
In a completely different vein, the end of marriage as a state-
regulated and -defined institution would undermine, perhaps
entirely erode, the state interest in controlling and regulating
sexual affiliations. If no form of sexual affiliation were pre¬
ferred, subsidized, and protected by the state, none would need
 THE AUTONOMY MYTH
i36

to be prohibited. Same-sex partners and those forming other

arrangements, such as multiple-partner sexual affiliations,
would just be viewed as forms of privately chosen and individu¬
ally preferred sexual connection. Such unions might be cele¬
brated in religion or culture, but the state would have no
regulatory interest.38 The substantial economic and other socie¬
tal benefits currently afforded to certain heterosexual units
would no longer be justified, and punishment of “deviant” sex¬
ual connections would no longer be permitted.
In addition, some other types of family formation that are
currently interpreted through norms of heterosexual marriage
would be opened up with the abolition of marriage. Single
motherhood, in particular, would be unregulated. Without mar¬
riage, motherhood would not be modified by the existence of a
legal relationship between heterosexual partners. There would
be no “single” mothers unfavorably differentiated in policy and
politics from “married” mothers—only the unmodified cate¬
gory of “mothers.” Women would be free to become pregnant
without fear that a paternity proceeding would be mandatorily
begun, even against the wishes of the parents and in disregard
for their privacy, so that the state could fill in the blank under
“father’s name” on a birth certificate. Sperm banks and special¬
ists in reproductive technologies, including artificial insemina¬
tion and fertility treatments, would not feel that the marital
status of their patients was an appropriate item for ethical or
professional concern.39
In addition to freeing women from the heterosexual marriage
paradigm in their reproductive lives, the abolition of marriage
as a legal category would have other‘implications. While con¬
tract language is often used to discuss the family,40 the rules seem
more anchored in the role-defined, common-law concepts of
status. The status of wife carries with it assumptions about what
is owed—notions about obligation^ and duties that arise merely
from a woman’s occupation of that position.
 THE FUTURE OF MARRIAGE
A . , i37
r
It is interesting to note, from the perspective of contract as a
metaphor for bargaining, that status encompasses and defines
those human activities in which women might be considered ei¬
ther to have a “natural” monopoly or to possess more on the
supply” than the “demand” side of the equation. These ac¬
tivities have been written out of contract.41 Paying women for
reproduction, as in surrogacy contracting, is not allowed. Like¬
wise, contracts or agreements to pay women for providing the
sexual services that are assumed in the marriage contract are
also not allowed.
Thus, sex and reproduction (certainly significant areas of
barter and exchange) are not subject to negotiation and order¬
ing through the private process of contract, unless we are talking
about the marital contract. Sex and reproduction are histori¬
cally considered central to that contract. For example, a mar¬
riage can be annulled—declared to have been void all along—if
the parties never sexually consummate their marriage.42 In ad¬
dition, further illustrating the centrality of sex to marriage is the
traditional common-law marital exemption for rape, which was
based on the idea that husbands had a right to the sexual ser¬
vices of their wives.43 Centuries ago, Lord Hale expressed the
opinion that consent to marriage was consent to provide sexual
services on demand.44
Why do we not allow enforceable individualized bargaining
over sex outside of the marital contract? In fact, we have placed
non-marital sexual interactions either as beyond the reach of
the law, labeling them private (the modern position), or appro¬
priately suppressed by law, labeling them deviant and subject to
punishment (the historic position). Rules, both criminal and
civil, such as sodomy laws or laws against fornication and adul¬
tery, bolster and reinforce the institution of marriage by penaliz¬
ing or prohibiting other sexual affiliations.45 There is no obvious
reason why sex should be excluded from some contractual
schemes (private bargaining) while it has been an explicit part of
 THE AUTONOMY MYTH
i38

another contractual scheme ^(the services requirement in the

marital contract).46
Of course, as this discussion of regulating sex and reproduc¬
tion through contract indicates, significant questions would
arise with the abolition of marriage as a legal category and the
placement of the relationship between sexual affiliates within
contract and other areas of law. What would happen to those
other areas of law if sexual affiliation, like other significant areas
of social interaction, were not treated differendy—if there were
no special category of rules regulating consensual, adult sex ex¬
changes and if all were subject to contract?
There are a number of interesting legal process questions
that are also raised by this set of speculations about abolishing
marriage as a legal category and relying on other areas of law to
address the problems that might arise between sexual affiliates.
These questions have to do with the process of transformation
of law and the ability of doctrine to adapt to accommodate new
patterns of behavior. Ideological as well as structural forces
would have to be considered.
For example, pouring disputes that arise between sexual affil¬
iates into the arenas of contract, tort, and criminal law would
not leave the doctrines that now govern those areas of law un¬
transformed—but how would the content of contract, tort, and
criminal law change? Would ideas about bargaining, considera¬
tion, and unconscionability be altered?47 While this is an inter¬
esting area for speculation, it is beyond the scope of this book.
My concern here is with the institution of the family and the
role marriage serves in society.

V. OUTSIDE OF CONTRACT

Of course, what is revealed if take the relationship of hus¬

band and wife—the institution of marriage—out of the special
 THE FUTURE OF MARRIAGE
x39
A . ,

category of family law is the dependency of the child (or any

other family member who is incapable of caring for her- or him¬
self). Even advocates of a restructuring of the relationship be¬
tween women and men do not necessarily believe that every
family relationship should, or could, be reducible to contract.
Family law historically recognizes that the state maintains a pro¬
tective interest in the well-being of children, and that parental
obligations in regard to them cannot be individualized and re¬
duced to contract. This position is consistent with the arrange¬
ment in which the family is the repository of dependency,
performing an important public function in which the state
maintains a regulatory and supervisory interest. In addition, it
seems that the state has not been deterred from defining—even
reordering—relationships in order to preserve the family’s role.
In regard to the state’s maintaining a primary interest in the
dependency component of the parent/child relationship, the
cases and legislation are very clear. The essentials of the tie are
for state determination. Husband and wife cannot negotiate
child custody and support free from judicial scrutiny and ap¬
proval.48 The state retains an interest in these arrangements and
the right to assess and alter any setdement the spouses may
reach upon divorce, and even to modify existing arrangements
in the “best interest of the child.”
Economic or dependency issues concerning the ongoing
needs of children that are addressed in the divorce context can
be compared with the nonmarital situation. Historically, mar¬
riage defined the status of children in relation to their parents
and the claims they could make upon or through them. The
presence or absence of marriage determined which children
were labeled “legitimate” or “illegitimate,” and thus either
granted or denied benefits accrued by their parents under state
insurance and compensation schemes.
The Supreme Court of the United States has reduced the sig¬
nificance of marriage in regard to the parent-child connection.
140 THE AUTONOMY MYTH

It did so first in regard to mothers.49 Howdver, fathers’ connec¬

tion to children has also evolved so as to not require its media¬
tion through the institution of marriage. Unmarried fathers
now have rights and responsibilities for their children that were
not part of the common-law scheme of things. Nonmarital
children are entided to benefits historically reserved for their
marital counterparts, such as parental support, worker’s com¬
pensation benefits, and the right to recovery in the event of a
parent’s wrongful death.50 Such improvements recognize that
the reality of dependency is more important than the status of
the parents’ relationship.
In fact, the Supreme Court considers illegitimacy to be a “sus¬
pect classification,” which means that all distinctions made on
this basis must be examined with a higher level of scrutiny than
usual.51 Clearly, the state can express its interest in protecting
children independent of the marital relationship of the child’s
parents. The label “illegitimate” and many of the disadvantages
associated with this status were substantially altered in the wan¬
ing years of the twentieth century.

VI. CONCLUSION

The very existence of the marital family, as well as the ideology

surrounding it as a societal structure, masks dependency. Mar¬
riage allows us to ignore dependency in our policy and politics
because we can always safely refer that nasty subject to the wait¬
ing societal receptor.
This interaction between the institution of marriage and pol¬
icy concerning dependency illustrates why it is important to
clearly reject the idea that the marital family is a separate, pri¬
vate entity, and instead to focus on the role that this family has
been assigned, and how that function can be best performed in
the future. We have historically relied on the marital family to
manage dependency. Yet changes in our expectations and aspi¬
rations for marriage have been profound. The institution does
not have the same meaning to participants as it did decades ago.
Given that ongoing transition seems the current and likely fu¬
ture fate for marriage, we can no longer rest assured that the
marital family alone can continue to adequately provide for the
emotional, physical, and developmental needs of all those in so¬
ciety who may be dependent. Concurrently, it is simply inaccu¬
rate to assume that nonmarital family units cannot provide for
the dependency needs of their members.
However, the dominance of the image of the marital family
in our political rhetoric means that it remains the constant vi¬
sion of the family that underlies debates about public regulation
and market autonomy. In spite of empirical evidence to the con¬
trary, we assume in our construction of social policy this family’s
existence and vitality, as a complement to the public institutions
we explicitly address. There are substantial costs to our refusal
to face the changes in intimate behavior and in patterns of fam¬
ily formation and function.
I

*
 Part Three

Feminist Critiques
of the Family
 «

*
 Equality and Family

caveat: In the introduction and chapters in this section, I will

often use gendered terms, such as “motherhood,” instead of
gender-neutral terms, such as “parenthood.” In an earlier book,
The Neutered Mother, the Sexual Family, and Other Twentieth Century
Tragedies, I argued that motherhood is a constructed social and
cultural role, and that is exactly why it is important not to ob¬
scure the fact that it has specific meaning as a practice. That
meaning incorporates a set of expectations for women in this so¬
ciety. I realize that not every woman becomes or wants to be¬
come a mother. I do assert that cultural constructs are powerful,
however. They act in a coercive manner, imposing normative
notions against which to measure behavior. I use the gender-
neutral term “caretaking” in other sections of this book to refer
to the social practice associated with the dependency work that
is at the center of my concern. To use “caretaking” in this sec¬
tion, however, would be inappropriate because it does not con¬
vey the same cultural imagery as does motherhood as a practice.
To say we need someone to take care of a child is not the same as
146 THE AUTONOMY MYTH

saying that we want someone'\to mother that child. Nor is it

equivalent to say we want someone to “parent” the child. As for
“fathering” the child, while it does not have the same exclusive
reproductive connotation that it might have had decades ago,
fathering as a societal activity is understood more as the as¬
sumption of economic, rather than caretaking, responsibility in
today’s policy world. It is motherhood as a cultural and social
practice that is burdened by our policies and politics. This is true
even when it is men who mother or when individual mothers
mother badly or not at all.

* * *

The chapters in part two looked at the position and privileging

of the marital family in politics and policy discussions. The mar¬
ital family is seen as being ideally self-sufficient and capable of
handling the dependency needs of its members, and in this way,
it is considered autonomous. The chapters in this section detail
feminist struggles with the institution of the marital family. In
this struggle, the autonomy sought is not that of the family
within society, but that of women within the family and within
society. Feminists realized that if women were to have a chance
to achieve equality outside of the family, they must be liberated
from the old gendered roles. Therefore, the marital relationship
was an early target for feminist reform.
The story of twentieth-century family law in the United
States is the transformation from a hierarchically organized
marital relationship into a regime of. marital partnership, in
which spouses are conceived in gender-neutral terminology and
each is equally responsible for her- or himself as well as for her
or his spouse. Spousal equality in this context is consistent with
the idea of spousal autonomy and independence.1 The union is
 EQUALITY AND FAMILY
HI
r

not one of domination and submission according to common-

law differentiated family roles, but one of voluntary association
between equals.
Our new legal and aspirational model for marriage is that of
“partnership,” an egalitarian concept that recognizes that both
spouses make contributions, even if they differ in kind. The con¬
tribution of the wife might still be specialized and domestic, but
the argument is that such a contribution, while different in form
than that made by the wage earner, is nonetheless of presump¬
tively equal value. Wives are not dependent and subservient.
Rather they are equal contributors who have earned the prop¬
erty or support allocated to them at divorce.2 The influential
Uniform Marriage and Divorce Act (UMDA), which was the
model for reform in most states, in Section 307(a)(1) recognized
this fact by mandating that when disposing of property upon di¬
vorce, the court must consider the “contribution of each spouse
to acquisition of the marital property, including [the] contribu¬
tion of a spouse as homemaker.”3
Further, this transformation in gender expectations encom¬
passes more than just a change in the roles wives are expected to
occupy. Wives and mothers may now be expected to participate
in the workforce, as well as in their historic family roles, but fa¬
thers and husbands are correspondingly expected to share re¬
sponsibility for domestic tasks and caretaking.
The equality imagery in marriage reflects a more generalized
societal transformation associated with women’s roles. The
equality revolution has occasioned wide participation by
women in the workforce. Young women expect to have equal ac¬
cess to education and workplace opportunities, and the law for¬
mally embodies these principles and aspirations. In fact, as
revisions in welfare and divorce policy during the past several
decades indicate, society has moved far from the historic idea
that a married woman’s place is in the home.
148 THE AUTONOMY MYTH

Yet, in this and all other societies of which I am aware,

women have always been perceived as being tied to the family.
Women’s historic roles within the family anchor us to that insti¬
tution in ways in which men’s historic roles do not. Law and
legal institutions reflect this pattern and have consistently con¬
sidered family roles and responsibilities primary to definitions of
women as explicit legal subjects.4 The gender differences that
are apparent in, and central to, the law’s consideration of the
family are reinforced in popular culture, as well as in more struc¬
tured societal institutions, such as religion. It is here, within the
family, that gender is manifest, and it is not surprising that one
task feminists have taken upon themselves is the conceptual sep¬
aration of women from family roles that have historically re¬
pressed their ability for autonomous action.
Given the continued inequality in our society, feminists are
rightly concerned with the ways in which societal institutions
such as the family incorporate, constitute, and replicate gender
relationships. Feminists recognize the importance of gender in
virtually all aspects of society. The relationship between the
marital family and the perpetuation of gendered norms sug¬
gests that we can only successfully address the disadvantages
that gender imposes on a systemic level. Individual resistance,
while important, even necessary, is not adequate to the task of
cultural and social transformation needed to achieve gender
equality.
Marriage, gendered in its very foundation by its historic defi¬
nition as a union between one man and one woman, has had
particular relevance to the construction of the family as a legal
and political category. As the preceding chapters demonstrate,
in the United States, our dominant family ideology positions the
core unit as the sexual and reproductive relationship of husband
and wife.
From a feminist perspective, on6 must remember that mar-
 EQUALITY. AND FAMILY
i49
nr

riage has not been a neutral social, cultural, or legal institution.5

It has shaped the aspirations and experiences of women and
men in ways that have historically disadvantaged women.6 For
that reason, I imagine that well before women first banded to¬
gether under the label “feminist,” at least some of us were con¬
cerned with marriage, the institution of family, and the content
of family law. Women’s concern with legal reform of the institu¬
tion of marriage can be traced back to the first Women’s Rights
Convention held in Seneca Falls, New York, in 1848.7
Even given the general recognition of the family’s impor¬
tance to the construction of gender and to the maintenance of
inequality, feminists have an ambivalent relationship to that in¬
stitution. This ambivalence is manifested in part by the ten¬
dency to generally undertheorize the family as an entity. Of
course, the economic or market and the political or public as¬
pects of society have generated an extraordinary amount of cri¬
tique and comment in which the family is implicated. For that
reason, the family has not been forgotten in feminist scholarship.
However, for the most part, feminist attention has focused on in¬
stitutions and structures in the public sphere and typically
skipped over the family, except to note its oppressive qualities.
When feminists have focused on the family, they have tended to
divide it up into competing interests, assessing the disadvan¬
taged and adversarial position of women in their family roles
vis-a-vis other family members—wife verses husband, mother
verses father and/or child.
I argue that most feminist critiques of marriage and the artic¬
ulation of aspirations for an egalitarian family do not go far
enough. This is because the predominant feminist approach to
the family has been to import concepts that have been success¬
fully employed in career and other aspects of our nonfamily
lives. In particular, the acceptance of a rather formalistic idea of
equality and the reluctance to consider differences in the socie-
150 THE AUTONOMY MYTH

tal circumstances confronting wdmen have resulted in a failure

to develop a theory that confronts the issues inherent in the fact
that the family has been a separate, differendy organized entity.
Recognizing that the family is an integral part of the larger
society and interacts within it, we need not and should not forget
that it has historically been treated separately. In fact, it must,
therefore, be approached with a set of analytic tools that reflect
sensitivity to that fact. Even if our ultimate goal can be cast in a
singular phrase, such as the implementation of equality across
social institutions, that goal may have to be achieved through
very different means within each differently constructed societal
entity.
It is not surprising that feminists have criticized the family,
given the significance of it as a perceived barrier to equality, as
well as a site of inequity. Feminists have resisted the ideal of the
family as a private institution, insulated from state intervention
and supervision. This critique of the idea of a public/private di¬
vide has been an important foundation of feminist legal theory.
There are two related aspects to the critique of public and pri¬
vate as constituting dichotomous, complementary spheres.
The first is the notion that everything is public, at least to the
extent that everything is regulated and recognized in law, and
therefore by the state. A corollary of this realization is that noth¬
ing is inherently “private” unless the state protects it as such. In¬
tervention by the state is always a possibility. The state therefore
actively defines what constitutes the private sphere by designat¬
ing areas in which it will not intervene.
In an influential article writtenMn 1985, Frances Olsen sets
forth an extended analysis of the public/*private divide and state
intervention in which she argues that intervention does not ac¬
curately describe any intelligible policies or principles:
*

[Nonintervention in the family [is a) false ideal. ... As long as a

state exists and enforces any laws at all, it pakes political choices.
 The state cannot be neutral or remain uninvolved, nor would any¬

one want the state to do so. The staunchest supporters of laissez

faire always insisted that the state protect their property interests

and that courts enforce contracts and adjudicate torts. They took

this state action for granted and chose not to consider such pro¬

tection a form of state intervention.8

Crucial questions are raised in this metatheoretical approach:

What is the manner or nature of intervention? Whose interests
are being protected and advanced when intervention occurs
and when it does not? Who is rendered subservient and subordi¬
nate?
Feminists have successfully deconstructed the public/private
dichotomy in the context of the family. While the family may be
viewed as private in our rhetoric, it is highly regulated and con¬
trolled by the state. Law defines who may marry whom and what
formalities must be observed. Only some relationships are con¬
sidered “legitimate” or legal ones that carry the weight of the
state behind them.9 Law defines the consequences of marriage
and parenthood and implements significant policy directives in
the context of divorce.10 Law also defines what responsibilities
are inherent in the family and what role the family plays within
the larger society.
The state also consistendy acts in ways that affect individuals.
In significant part, it does so by shaping and regulating the fam¬
ily. Through shaping the family, the state contributes to the ways
individuals construct their identities within society. The state
also establishes mediated norms of citizenship and community.
Thus, the public state affects the very workings of private life. By
scooping out what is public, it also defines what remains private.
A second set of feminist critiques focuses more on the interac¬
tions between women and men within relationships that are af¬
forded privacy by the state. The state is still seen as providing
structure, but the emphasis is on what transpires within the des-
 THE AUTONOMY MYTH
!52

ignated private space—in the operation of nonstate relation¬

ships. These critiques are exemplified by the contrasting analy¬
ses of Professors Catherine MacKinnon and Anita Allen.
Professor MacKinnon begins by asserting that privacy ob¬
scures private violence and abuse, which is often labeled “do¬
mestic.” 11 For example, she is critical of liberal thinkers, as well
as the majority of the Supreme Court, who adhere to notions of
the private. Commenting on cases such as Roe v. Wade, in which
the Supreme Court set aside a blanket prohibition on abortion
based on privacy grounds, MacKinnon characterizes “the ideol¬
ogy of privacy” as “a right of men to be let alone to oppress
women one at a time.”12 She understands privacy as a benefit to
men, rooted in the concept of women’s seclusion and separation
from the protections that might otherwise be afforded them by
the state.
Privacy is seen as a primary source of women’s inequality—
the private sphere is the location of her domination and subor¬
dination.13 In fact, MacKinnon asserts that to even complain
about inequality in the private arena is inconsistent with the
whole idea of privacy. Privacy cannot be understood outside of
its historic manifestation of female subordination.14 MacKin¬
non asserts that for women, “the measure of the intimacy has
been the measure of the oppression. When the law of privacy
restricts intrusions into intimacy, it bars changes in control over
that intimacy [through law]. . . . The existing distribution of
power and resources within the private sphere are precisely
what the law of privacy exists to protect—the subordination and
domination of women.”15 ^
Professor Allen begins her discussion* of relationships of pri¬
vacy in the same place as MacKinnon—within the confines of
the historic nuclear family home. Her major concern, however,
is not with male violence against women, but with the exploita¬
tion inherent in family relationships—the sacrifices compelled
 E^UALITX A.N! D FAMILY
*53
r

by “[mjarriage, motherhood, housekeeping, dependence” and

women’s “own moral ideas of caretaking and belonging.”16
It is a particular ideological manifestation of privacy, not the
concept itself, that Allen critiques here. Allen disagrees with
MacKinnon, disputing her assertion that privacy poses an in¬
herent threat to women, and instead argues that after centuries
of subordination, women finally find themselves in a position to
“expect, experience and exploit real privacy within the home
and within heterosexual relationships.”17
Allen views privacy as a potential good for women, since it
has multiple dimensions that relate to “family life within the
home, and to the kinds of intimate personal relationships and
activities commonly associated with them.”18 While recognizing
that these relationships often were experienced as abusive in the
past, Allen sees a need for “real” privacy for women. Privacy can
provide seclusion and solitude for women, restrict access to in¬
formation, preserve confidentiality, and secure decision-making
autonomy. Allen makes an important argument for retaining the
constitutional, individualized notion of privacy. Her concern is
with making sure that the conditions for its use and enjoyment
are afforded to women.19
Both MacKinnon’s critique and Allen’s defense of privacy as¬
sume there is danger for women in the domestic realm. The dan¬
gers are located in male excesses, on the one hand, and on
operation of and expectations associated with heterosexuality
and reproduction, on the other. In both approaches, women’s in¬
terests are asserted as individual interests, independent of and in
conflict with others in the family unit. For MacKinnon, this is
played out as subordination of women by men who, with greater
or lesser degrees of ill will, take advantage of them within inti¬
mate relationships.
Allen brings children into consideration, but maintains an in¬
dividualized approach in her analysis: children boil down to
 THE AUTONOMY MYTH
i54

caretaking, and caretaking interferes with, and may even pre¬

clude, “real” privacy.20 For that reason, although I support some
articulation of privacy rights, and thus more closely align with
Allen than MacKinnon, Allen and I diverge in our analyses in
that hers is an individualistic model imposed on the family, not a
model that positively encompasses the demands of a caretaking
entity. The demands of the home are seen as having robbed
women of meaningful personal privacy. Allen is skeptical about
any notion of “shared privacy” (described by her in terms of
“love affairs”) and terms it dangerous when “it replaces individ¬
ual privacy.”
Allen’s objective is to articulate a personal, individual sense of
entitlement to privacy, an entitlement that supports women’s re¬
sistance to the imposition of the burdens of reproduction and
caretaking. Her notion of privacy in this regard is as a tool to
“put an end to the psychological predisposition of women to
care themselves into oblivion”—a defense against intrafamily
abuse.21 As the subsequent chapters will show, in contrast I
argue that we must develop a feminist theory that encompasses
family obligations as a positive social and individual good, de¬
serving of societal subsidy and support, including the protection
of some form of entity privacy.
It is important to recognize that as essential as the debates
concerning privacy have been to feminist legal theory, in other
areas of law, the dichotomous world of public and private con¬
tinues to have profound implications. For many legal theorists,
although the private family recedes and the designated public
remains the focus of concern and Rebate, the dichotomy be¬
tween public and private is not challenged. As a result, not only
are the family and dependency grossly undertheorized, but the
very concepts of the “individual” and the institutions of market
and state that are the focus of theory-are distorted and skewed
because the family is invisible, cast as quintessential^ private
 EQUALITY *AND FAMILY
155
r

and conceptually separate from market and state. Family is

wrongly assumed to be unchanging, an essentialized institution,
natural in form and function, that is the repository for depen¬
dency. The sorting into public and private, once struck, is not re¬
considered.
 Chapter Six

Feminism and the Family:

Implementing Equality,
Achieving Autonomy

I. INTRODUCTION

When addressing any topic from the position of “feminism,” we

need to clearly state that there are many differences in ap¬
proach, emphasis, and aspiration contained within the general
category.1 Recognizing that there are many divergences in femi¬
nist theory, we can nonetheless make some generalizations. Pri¬
mary among them would be the assertion that feminisms and
feminists are concerned with “gender” and the many ways in
which the genders, male and female, are shaped and defined
within society and culture.

A. Gender
“Gender” is a term that refers to the-cluster of characteristics
deemed feminine or masculine in society, as distinguished from
mere biological or genetic categories. Gender is socially con¬
structed; it is imparted through socialization and culture rather
than inherent. Part of the evidence for this is that characteristics
 FEMINISM AJJD THE FAMILY
J57
0

that “define” the genders do not remain constant over time or

across different cultures.2 Feminists use the concept of gender to
convey the idea that society contains cultural, symbolic, and ide¬
ological systems that generate and perpetuate dominant notions
of masculinity and femininity.
The genders are constructed in a binary manner, created in
contrast to one another,3 with dichotomous and clearly value¬
laden pairings, such as strong/weak, hard/soft, and mind/body.
Gender definition is not a “natural” or inevitable process, but is
produced through a web of social relationships, constructed by
and within societal institutions. Primary among those relation¬
ships are those found in the institution of the marital family, with
its reproductive focus. Family gender roles have both a biologi¬
cal, reproductive component and a caretaking dimension, in
which responsibility for dependency is assigned to women.
Notions about gender are also reflected through laws and
other institutions that support, complement, and help define the
family. In other words, gender does not operate solely on an in¬
dividual level, or even a familial level: there are also institutional
and structural forces that shape notions of gender. The con¬
struction of gender often operates as the conferral of power, op¬
portunity, and benefits. This makes it difficult, if not impossible,
for one to act outside of gender roles. One may “transgress”
gender but the script is still imposed in the first instance, and the
transgressor, as well as those who accept those imposed gender
norms, are all reacting, not self-actuating in that regard.

B. Feminism and Legal Theory

Feminist thought came relatively late to legal institutions. When
it did, most notably in the 1970s, the nature and history of legal
institutions shaped the possible responses available to feminist
law reformers. To a large extent, scholarship in the field of fem¬
inist legal theory was initially divided. Some feminists, using a
158 THE AUTONOMY MYTH

domination or subordination model, focused attention on issues

concerning sexual violence and/or reproductive rights. Other
feminists, working with a discrimination model, confronted is¬
sues such as inequality in the workplace.
The antidiscrimination track was the most pronounced path
that legal feminists trod. This is not surprising, given how the
law had been developed under the Fourteenth Amendment to
mandate equal protection for those in similar circumstances and
forbid the states from discriminating based on certain classifica¬
tions and characteristics. Under this amendment, groups that
suffered disadvantages argued that they were not in any signifi¬
cant way different from those who were not disadvantaged. The
strategy was to persuade the courts that there were no legally
relevant differences and to therefore establish an entidement to
sameness of treatment.
The civil rights movement had built on this antidiscrimination
principle, successfully attacking “separate but equal” education
in Brown v. Board of Education,4 as well as other exclusionary and
discriminatory practices in a host of other subsequent cases.
Legal feminists modeled their litigation tactics on the civil rights
successes. One of the chief architects of gender discrimination
law was (now Justice) Ruth Bader Ginsburg. She articulated the
strategy thus:

Laws ranking men as independent and women as dependent in¬

hibit both from choosing the paths they will pursue in life based on

their individual talents and preferences. And such lump classifica¬

tion of men and women is surely unnecessary, for neutral, func¬

tional description is an alternative plainly open to the legislature.5

In their efforts to reshape the world into a more egalitarian

place through legislative reform, feminists were not primarily fo¬
cused on the workings of the fafnily. Concern with economics
drew attention to the gendered and exclusionary nature of pub-
 FEMINISM A NO THE FAMILY
J59
V

lie institutions, particularly market institutions, which resulted in

successfully tapping the regulatory potential of the state. Legis¬
lation was enacted that removed barriers and implemented
equality measures, such as equal-pay legislation and other pro¬
hibitions against gendered forms of employment discrimina¬
tion.
When intimate relationships did come under active feminist
consideration, the issues most likely to be explored were associ¬
ated with reproductive freedom, primarily access to abortion,
and with violence against women, including sexual violence ei¬
ther by intimate partners or by strangers. Of course, coercive
sex in the nonfamily world was also of concern to feminists, who
generated public awareness about sexual harassment in the
workplace. Rape laws were reformed, and extensive discussions
focusing on a range of issues associated with giving women con¬
trol over their own sexuality challenged old notions of female
desire and resistance.
The treatment, if any, of the family as an institution in these
discussions tended to be rather superficial, defining it as a sub¬
sidiary of the market, or as a bastion of male prerogative and
privilege. The family was cast as another obstacle hindering full
participation of women in the “public” sphere, because its
arrangement left women subject to domination and victimiza¬
tion in the “private” sphere.6 In focusing on adult female and
male family members, feminists reached for the conceptual tool
of equality, still close at hand from its successful employment in
nonfamily contexts.

C. Implementing Equality in the Family

When early legal feminist theorists did consider the family, the
concept of equality in its gender-neutral, nondiscriminatory
form as developed in work and political contexts was imported
into and imposed on their discussions. Under this conceptual¬
ization of equality, wives were to be more like husbands and
i6o THE AUTONOMY MYTH

were to pursue economic opportunities, and fathers were to be

more like mothers and to participate in the care of children and
in other domestic tasks. Wives were to be equally responsible for
their own and their children’s economic well-being, and hus¬
bands were entitled to alimony equally with wives, were they un¬
able to support themselves postdivorce. Fathers were equally
capable of caring for children and were not to be discriminated
against in custody determinations by such antiquated and inap¬
propriate doctrines as the “tender years” preference, which dis¬
criminated against them in favor of mothers.
When they turned to the situation of women within the fam¬
ily, feminists began from the perspective that these relationships
were a subset of the larger gender-equality problem—the differ¬
ent and exclusionary treatment of women as contrasted with
men in society and its institutions. In this regard, the focus on
the relationship between husband and wife was predictable.
Women’s traditional gendered roles within the family were
considered problematic, primarily because they impeded
women’s realization of their role as equal participants in the
economic and political aspects of life. Family and family roles,
particularly that of mother, were often analyzed as oppressive
and as impeding individual growth and independence. Femi¬
nists alleged that the family itself was often violent and danger¬
ous. Of course, any feminist focus on the family found it in need
of serious reform, in order to give women more autonomy.
In this regard, the aspect of marriage occupying feminist at¬
tention for the most part has been the legacy of the traditional,
unequal gendered roles of husband, and wife, as articulated in
relation to religious and legal relationships. In accordance with
the church’s approach to marriage, legal and other texts analo¬
gized the relationship between husband and wife to other “nat¬
ural” hierarchical arrangements..Thus, a man was enthroned as
head of the family, just as Jesus reigned as the head of the
 FEMINISM ANp THE FAMILY l6l

church and the king was the head of the state. The respective
positions of husband and wife were rigidly distinct and patri-
archically ordered—the husband’s role, as frail wife’s protector,
was deemed “divinely ordained.” Bradwell v. Illinois,1 a case dis¬
cussed in chapter four, involved a prohibition on women’s ad¬
mission to the practice of law, indicating that this hierarchical
thinking had implications well beyond the family and affected
women’s career and other opportunities. Women, whose pri¬
mary calling was as wives and mothers, were considered unfit
for the harshness of public life.
Common-law rules and regulations aided in the construction
and maintenance of the subordinate gender roles in the family.8
The structure of the common law mired married women, in
particular, in family responsibility and left them on a legal plain
far from access to independent and autonomous decision mak¬
ing. Given the power of the legal construct of the common-law
family, in retrospect it seems naive of feminists to think they
could just import concepts of equality developed in other con¬
texts onto the existing inequality of the family. The prevalent
understanding of equality that developed in the “public” sphere
demanded an individualized notion of sameness of treatment
and gender neutrality. Such notions seem singularly inappropri¬
ate in confronting what has historically been the most gendered
institution in society.

D. Methods of Seeking Reform

One can see the embrace of equality in the activities of legal
feminists who were involved in the movement for divorce re¬
form. Autonomy (understood as independence) from historic
family roles was the path to equality (and further, to individual
autonomy) in the larger society. Feminists argued for both equal¬
ity (as in sameness of treatment) and gender neutrality as the
basis for reform of marriage, introducing a partnership notion
l62 THE AUTONOMY MYTH

to replace the old common-law hierarchy. This partnership

model was more than a mere conceptual device conveniendy
borrowed from business in order to legitimate the transfer of
funds from husbands to wives at divorce, however. Legal femi¬
nists were truly interested in the establishment of a broad egali¬
tarian family ideal, and the partnership model of marriage
reflected that aspiration. The idea was to make husbands and
wives share all responsibilities and benefits of the institution of
marriage—to androcentrize the family roles and facilitate shar¬
ing them.
The logic supporting this suggested reconceptualization of
the family involved two primary justifications—one internal and
one external to the institution of the family. The arguments for
reform based on the internal family dynamic pointed to the un¬
equal nature of historic gendered arrangements and interac¬
tions. There were inequalities within the hierarchical and
patriarchal family, exemplified both by economic dependency
and by labor force disadvantages, that became even more ap¬
parent with divorce reform, which revealed women’s economic
vulnerability.
The battered women’s movement documented the preva¬
lence of physical and psychological abuse of women. The de¬
pendency of wives was thought to contribute to and exacerbate
the prevalence of these abuses within the family. Such abuse was
largely shielded from public view. Legal protection was limited
by the concept of family privacy, a noninterventionist doctrine
that was applied to intact families. Legal feminists attacked this
whole notion of family privacy^ arguing that it concealed real
and material psychological and physical injuries occurring
within the hierarchical, patriarchal family.
The second impetus for reform was provided by those femi¬
nists concerned with women’s position outside of the family
They argued that domestic responsibilities within the family,
 FEMINISM A NT) THE FAMILY 163
r

particularly motherhood, had profound negative implications

for women’s prospects in the larger society. Feminists realized
that formal gains in equality of access and opportunity for
women in education, politics, and the workplace could not be
fully realized if there were not corresponding changes in family
roles and the responsibilities women were expected to assume.
By and large, legal feminists agreed that women, both inside
and outside the family, were primarily defined, and thus con¬
fined, by their family roles of wife, mother, and daughter. These
family roles contained inherent economic dependency, self-
sacrifice, and subservience. Further, family roles displaced other
aspirations on an ideological level, with concrete implications
for educational and career opportunities available to women.
Expectations governing the private (family) sphere correspond¬
ingly defined aspirations and possibilities for women in the pub¬
lic (workplace) sphere. In other words, it was not necessary that
cases such as Bradwell v. Illinois impose de jure exclusion of women
from market institutions—acculturation and family expecta¬
tions worked just as well at accomplishing that goal.
This agreement reflected the merger and conclusions from
the two types of arguments for legal reform focused on the fam¬
ily. Both lines of argument ended with changes directed at re¬
sponsibilities and roles within the family. Even those arguments
that looked at social arrangements that disadvantaged women
outside targeted the internal operations of the family as the pri¬
mary site for reform and transformation.
In considering the focus on the internal workings of the fam¬
ily as a site for legal reform, we need to keep in mind that in real-
world legal and political practice (outside the debates within
feminist legal theory), the idea of family privacy is a coherent
concept. Except in areas of extreme abuse, such as domestic vi¬
olence, the popular and political idealization of the ongoing
family mandates that it retain its private character. State inter-
104 THE AUTONOMY MYTH

«
vention and monitoring is considered inappropriate absent
some significant breakdown. This is important because these
perceptions mean that state intervention into any specific family
situation is improbable.
The practice of gender equality exists only to the extent that
individual married couples choose to embrace it, unsupervised
by the state. Yet, within the marital relationship, independent of
any legal assurance of equality, the spouse with superior eco¬
nomic and social power can wield such power in ways that pre¬
serves the status quo. Therefore, it is not surprising that many
couples continue to act out traditionally gendered scripts of be¬
havior, mimicking the roles taught through unreformed social¬
ization processes.
As a result, while equality in the context of the marital family
might be imposed in a formal manner, each couple designs the
actual terms of their marriage relationship. Their respective
bargaining power will be influenced by the bargaining power
they bring to that relationship, which is often the product of how
much they can mobilize social resources outside of the family—
how much autonomy they have. Unless the marital relationship
dissolves and the courts are asked to intervene to allocate eco¬
nomic resources in the context of a divorce, equality is realizable
only at the whim of the person with the most economic and cul¬
tural clout. The monitoring and implementation of equality for
the intact marital family is left to the individual family and its
members—it is a self-regulating system.
Self-regulation is not the primary assumption made in the
context of imposing gender equality in the public sphere, how¬
ever. In the workplace, equality is not only imposed, but also
monitored. Laws structure working relationships in the first in¬
stance, and mandate that employers provide equal pay for equal
work and otherwise treat women equally with men. If there is
discrimination, individual and governmental actions are pro-
 FEMINISM AND THE FAMILY 165
r

vided to remedy this, and unlike the case of the marital relation¬
ship, the benefits of equality are not withheld until the worker
terminates the relationship.
Recently, some reformers have turned their attention to the
relationship between the traditional demands of motherhood
and the failure of women to achieve equality in the workplace in
spite of legal dictates. It should be increasingly apparent that if
we want to change the family, we must also transform the work¬
place to accommodate that change. A few feminist legal scholars
are now focused on what has been labeled the “work-family con¬
flict.” The problem with this focus, from the- perspective of
American policymakers, who are saddled with an antiregulatory
rhetoric and a free-market ideology, is that to resolve the con¬
flict, it will be necessary to regulate the workplace, placing de¬
mands and obligations on employers. Undoubtedly, this will be
perceived as interfering with the autonomy of those employers
and the freedom of the marketplace—transgressions of consid¬
erable magnitude in today’s political contexts.
However, it is exactly this type of reform that must occur.
Feminists must confront the difficult issues and political pitfalls
involved, and argue for a more humane workplace and a more
responsive state to emphasize the democratic and egalitarian
traditions in our capitalistic system. Until the structures that
make it so difficult and costly to combine caretaking responsibil¬
ities with paid work are changed, the status quo of family dy¬
namics and workplace demands will continue to place women in
a relatively disadvantageous position.
What are needed are not more legal reforms of the family, but
a restructuring of the conditions of the workplace, which will
most likely require substantial state intervention. This is not a
plea for more “mommy track” options or other minor adjust¬
ments that separate out women for different treatment and thus,
in practice, work in a discriminatory manner. As discussed more
166 THE AUTONOMY MYTH

fully in chapter eight, it is a claim that the workplace should be

restructured, its demands structured and channeled in ways that
are compatible with the no-less-legitimate demands made in
other spheres of life upon all workers.

II. THE WAKE OF FEMINIST FAMILY LAW REFORM

Practical considerations aside, when assessing the value of fam¬

ily law reform, many would argue that the law has important
functions beyond coercion—it can be aspirational, providing the
articulation of a superior normative structure. If we focus solely
on the rhetorical changes made in regard to expressing expecta¬
tions for husbands and wives, it seems quite clear that the same-
ness-of-treatment equality model and antidiscrimination-based
reform were successful. Family law scholars brought marriage
under legal and theoretical scrutiny and made powerful and ef¬
fective arguments that altered the way we think about gendered
violence,9 reproductive rights,10 and the economic relationship
between husband and wife.
In an important survey of feminism’s effect on family
law, Katherine Bartlett, dean of the Law School at Duke Uni¬
versity, suggests that feminism’s “principal” contribution to the
law of the family “has been to open that institution to critical
scrutiny and question the justice of a legal regime that has per¬
mitted, even reinforced, the subordination of some family mem¬
bers to others.”11 This rendition of reform defines the task of
feminism as confronting inequality and subordination and ef¬
fecting moves toward greater equality and autonomy within the
family.
Bartlett casts the contributions of feminist family law scholars
and practitioners in this manner as largely a “success story.”
Feminists challenged the public-private divide, making abuses
V

within the family visible. They generated instability in, and sub-
 FEMINISM A«N D THE FAMILY 167

sequent reform of, “traditional” patriarchal family law. Feminist

engagement with and use of powerful legal concepts such as
“equality” led to recasting marriage as a relationship between
equal partners. Divorce rules have changed to reflect the percep¬
tion that wages and income are the product of family labor, not
only of individual efforts. The legal relationship between hus¬
band and wife has been completely rewritten in gender-neutral,
equality-aspiring terms. So-called domestic violence is now sub¬
jected to criminal and civil sanctions, and “marital rape” is no
longer considered an oxymoron. Most women, whether they
identify themselves as feminist or not, benefit from and generally
approve of such manifestations of gender equality.
Yet Bartlett also concludes that the most “divisive issues” for
feminists, as well as for larger society, “have been those that con¬
cern the preservation, or elimination, of traditional ‘gender
roles’ in family or family-related areas of the law.”12 Her discus¬
sion of division implies that these differently gendered roles still
exist. She further asserts that “ [f] amily-related issues concerning
gender roles have generated the most backlash against feminism
in the popular culture.”13
I think it unlikely that Bartlett is referring to the norms of
gender equality that govern the relationship between husband
and wife when she refers to the divisions among feminists, al¬
though that move has generated some backlash in certain cir¬
cles. When considering the divisions within feminism, I think it
much more likely that Bartlett’s remarks were in response to an
ongoing struggle about how we should view the roles of mothers
and fathers in the newly constituted egalitarian family.
Bartlett’s essay explores three areas of family law, all of which
exemplify the gendered nature of family relationships between
adult women and men. She addresses the relationships’ reform
in the contexts of divorce, reproduction, and domestic vio¬
lence.14 These are indeed areas of success for feminism. But
there are other areas of inquiry that would show less success and
168 THE AUTONOMY MYTH

more ambivalence on the part of feminists. Certain areas of law

concerning families bring children and issues surrounding de¬
pendency into the picture in ways that divorce, reproduction,
and domestic violence do not. Specifically, the maternal dilem¬
mas presented by work-family conflicts and the recasting of
state welfare systems raise issues concerning the role and re¬
sponsibility of the state to provide for those in need because of
care taking responsibilities.15
It seems that many feminists are preoccupied with the rela¬
tionship between women and men to the exclusion of a consid¬
eration of other intimate connections. However, the articulation
of appropriate male-female interactions across a wide range of
issues is “easy” for contemporary feminist thought. It is easy be¬
cause in focusing on intimate relationships between adults, the
goal of gender equality (however we get there) seems clearly and
uncomplicatedly appropriate. This is why in many areas there is
no longer much disagreement as to the need and desirability for
reform, either among feminists or between feminists and the
larger society. Laws governing divorce, sex and reproduction,
and domestic violence address areas in which there is equilib¬
rium, perhaps even close to societal consensus, forged in part
through feminist sensibilities.
In making this claim about equilibrium or relative consensus,
I am not forgetting about the religious right and the conservative
backlash against gender equality. Nor am I ignoring the fact that
within communities that generally support contemporary pol¬
icy, there are nuanced debates that still exist, such as those con¬
cerning late-term abortion in pro-choice feminist circles. My
assertion is merely that the majority'of American society (femi¬
nist and not):

[i] seems to be settled on policies that allow relatively liberal

divorce laws, coupled with a partnership model for doing
economic justice between spouses;
 FEMINISM A-N D.THE FAMILY 169

[2] has settled into a “live-and-let-live” approach to sex,

complemented by recognition of a woman’s right to
“choose”; and
[3] believes that perpetrators of domestic violence should be
punished and that society should provide support and
protection for their victims.

With so many old issues now successfully addressed, percep¬

tions of just what social arrangements currendy constitute “gen¬
der issues” ripe for the application of feminist legal thought has
(or should have) been evolving. The gendered nature of
women’s relationship with men, now a much less pressing issue,
allows concern with the tenacity of women’s socially and cultur¬
ally assigned role as caretaker to surface. The attendant material
and other disadvantages that role brings should become central
objects in feminist theory.
What are we feminists to do with motherhood, as both a prac¬
tice and an ideological structure? In the family arena, it is not
what we want for woman as “wife,” but what we aspire to as
“mother,” that divides us and provokes dissension and debate in
and outside of feminist communities. When we ask questions
about motherhood, the focus moves from the male/female dyad
to that of mother/child. Concepts such as equality, while useful
in defining relations between adults, seem inadequate to address
the dynamics inherent in what is considered by many to be a
more primal tie.
There is no autonomy to be found in motherhood. Mother¬
hood is mired in dependency—the dependency of the child, in
the first instance, and the dependency of that person assigned
responsibility for caretaking, in the second instance. De¬
pendency seems incompatible with equality; it undermines
the notion that women can achieve autonomy and be free
from family disability. In this regard, legal feminists seem to
have a much more ambiguous response to woman’s role as
170 THE AUTONOMY MYTH

mother than that generated in response to her traditional role as

wife.
The assertion that motherhood is the real “gender issue”
frames a conceptual and theoretical challenge in family law for
contemporary legal feminism. This is particularly true since it
has become increasingly obvious that the solutions to the dilem¬
mas created by dependency and caretaking cannot be found
within the family. The politics and policies surrounding work-
family conflicts and welfare are among the most contentious is¬
sues in society today. These issues are divisive and generate
controversy within feminism precisely because they reach be¬
yond the family and the individuals within it to implicate other
societal institutions. In doing so, these issues force us to confront
the limitations of equality and gender neutrality. Yet, we have
no readily accepted supplemental concepts with which to try to
transform the practice in families and guide the responses of
other societal institutions.
These areas are troubling for feminists and others concerned
with the welfare of women and children because they reveal that
many individuals and the families they form cannot live up to
the ideals of our autonomy myth as it is expressed in terms of in¬
dependence and self-sufficiency. Focusing on the pressures and
stresses that arise in trying to combine work and family responsi¬
bilities, most starkly presented in the context of welfare policy,
forces us to confront the realization that more than the family is
in need of reform.
The stress suffered by all too many modern families brings to
the forefront the incompatibility,—given existing societal struc¬
tures—between what we still aspire to' as mothers and what we
now aspire to as equals in the workplace. Further, we can predict
that it will be feminists who are, and feminism that is, destined to
be blamed for the failure of the .family in this regard. After all
(the argument will proceed), it'is feminism that imposed the
 FEMINISM A<N D T H E FAMILY 171
r

mandate of egalitarianism on the family, protected women’s

right to choose when and if to become mothers, and champi¬
oned the image of single motherhood as an acceptable alterna¬
tive. These families, because they fail to conform to the idealized
traditional model, are unable to maintain the family’s historic
role in regard to dependency. It is the act of tampering with the
traditional family model, not the unresponsiveness of the unac¬
commodating workplace and the reluctance of the state to regu¬
late, that will be seen as responsible for the family’s predicament.
How should feminists respond to such assertions? In the first
instance, we must reject the notion that the problem of
work/family conflict should be cast as the problem of a lack of
equal sharing between women and men of domestic burdens
within the family. We have gone down that road and it is a dead
end. Our arguments for reform must now acknowledge that the
societally constructed role of mother continues to exact unique
costs for women. This is true in spite of decades of attempts to
equalize family responsibility and to draft gender-neutral,
equality-enhancing rules. The difficulty that women and men
experience in trying to change their behavior as mothers and fa¬
thers and to equalize the costs of caretaking remains striking.
Feminist legal theorists anticipated that as women became
more active in the workplace, men would become more involved
in the family. However, although the former has occurred, the
latter has not—the “revolution” has been accomplished. Statis¬
tics reflecting persistent gendered divisions of family labor stand
in contrast with the aspiration to reconfigure women’s relation¬
ship to the workforce. Norms of equality are firmly entrenched
in the laws governing both areas, but are much less successfully
implemented in the family realm.15 While it is true that patterns
of equality are manifested increasingly in regard to expectations
for and behavior of men and women in their roles as wives and
husbands, the quest for equality and gender neutrality has not
172 THE AUTONOMY MYTH

produced the same sort of “progress” in affecting the actual

practices of mothers and fathers. Generations after the formal
articulation of gender-neutral parenting principles, the assump¬
tion of responsibilities for children and other dependents con¬
tinues to be gender skewed.
As a result, the social, economic, and cultural implications of
motherhood remain very different from those of fatherhood. Of
course, within individual families we may see signs of successful
struggle over sharing responsibility. Some men are actually at¬
tempting to redefine their own behavior and society’s expecta¬
tions for fathers. Studies show that when they do, they suffer
some of the same disadvantages and negative consequences as
mothers.17 For example, in some cases, men who asked for
parental leave were seen as not dedicated to their career.18 Per¬
haps this illustrates why it is so difficult for women and men to
try to equalize their behavior as mothers and fathers: the equal¬
ization is going to hurt, at least within the larger social system
currentiy in place. Someone is going to suffer in the workplace if
there is caretaking to be done in the home. Women have been in
that position for generations, so the status quo prevails, but it is
important to emphasize that it is the task of caretaking, not the
sex of the caretaker, that operates as a disadvantage.
This last point brings up another limitation of feminists’ ten¬
dency to be preoccupied with the interactions between women
and men. This focus distracts us from some more fundamental
manifestations of inequality. Because feminists have been un¬
comfortable confronting the implications of dependency, our
law reform efforts, for the most papt, have been limited in imag¬
ination and reach. We have been relentless in an exploration of
internal inequities and injustices within the family, but have
failed to consider that institution in its larger societal context.
Undertaking such an exploratiqn would move the feminist
perspective away from concern about family roles and gender
 FEMINISM 4.ND, THE FAMILY
m
r

equality (at least initially) and direct our attention to the place
and meaning of marriage and the marital family in our cultural,
social, and ideological systems. It also brings us into direct con¬
frontation with the implications of economic ideology and prac¬
tices of capitalism, which some argue have not been enough of a
focus for feminists within the United States. However, until we
undertake this kind of exploration, it will be impossible for us to
consider what kinds of reforms are likely to make things better
(more equal and just) within marriage, within the family, or
within society in general. Real reform cannot proceed, or even
be adequately theorized, until we understand and appreciate
the way changes in the expectations for and functioning of the
marital family in order to gain greater gender equality will chal¬
lenge and threaten other social institutions. In the sense that
they are built around the continuation of a gendered family
structure, these institutions are actually dependent on it. If that
structure is undermined, so are the institutions weakened. Fem¬
inists must respond to these threats with ideas for new structur¬
ing that will benefit us all.
In her article, Bartlett alluded to a backlash against existing
feminist reform. Certainly that backlash is generated in part by
the realization that feminism, insofar as it equalizes ambitions
and opportunities, threatens the traditional family. If women re¬
ally aspire to equality, the family will not be able to perform its
historic task of being the repository for dependency. Those who
lash back against feminist egalitarian aspirations realize some¬
thing we should also take seriously: successfully transforming ex¬
pectations and behavior within the family will necessitate
profound corresponding transformations and accommodations
on the part of other societal institutions.
Feminists must not replicate the same sort of mistakes that
mar other theoretical and policy discussions, focusing only on
one area of law and set of relationships and failing to consider
 THE AUTONOMY MYTH
i74

how change there might reverberate throughout society. As we

approach changes to the family, we cannot assume that other so¬
cietal institutions either do not matter or will simply be trans¬
formed to conform to our specification about what is needed in
the way of institutional support for a revised ideal family form
or function. We must consider the constraints that will be placed
on any transformation of the family, constraints that are inher¬
ent in the existing organization and structure of the market and
our ideology about the state. Part of this process will be a con¬
sideration of the limits on possibilities for reform that may be
built into existing theories of justice and law.
When considering these other societal institutions and how
they impact and are impacted by the family, we cannot just cri¬
tique the internal aspects of the marital family, focusing on the
gendered nature of relationships. In order to achieve an egali¬
tarian family, we must also confront the reality and timelessness
of inevitable dependency and the burdens it entails, both for the
family as an institution and for those individuals who take up its
demands. Unless other societal institutions are restructured so
as to assume some of those burdens for the family, the costs will
continue to be borne primarily by women within the family. The
implication of dependency, coupled with the fact that women
are the primary caretakers in today’s society, means that many
women are also dependent. This reality belies the myth that au¬
tonomy, understood to be independence and self-sufficiency, is
attainable for everyone in society.
What does this specific type of dependency mean for femi¬
nists? For one thing, it is clear thaf society has some interesting
(and potentially divisive) issues in needbf feminist consideration.
Women who are mothers cannot function in the same way that
women who are not mothers (and men who can and do choose
not to mother) function in either the workplace or the family.
I argue that feminists cannot jhst walk away from depend¬
ency, ignoring the dilemmas presented by children and others in
 FEMINISM A%N D ,THE FAMILY
*75

need of care, even if we ourselves are not caretakers and our

theoretical interests are in less “mundane” issues. Dependency
issues must be of central concern in feminist theory, but it will
take some real effort to make them so. The language of legal
feminism, developed through looking solely at women vis-a-vis
men, was framed by the quest for equality, juxtaposing ideas of
domination with antisubordination, victimhood with agency,
and special treatment with equality. These are concepts devel¬
oped to address the legal and structural burdens imposed on
women in relation to men in society. They do not adequately
capture the dilemmas confronting women in their role as
mother, as someone derivatively dependent because she is tak¬
ing responsibility for the inevitable dependency of others.19
Feminists need to define the concepts and create a vocabulary to
be employed in addressing the dependency of mothers.20
We also need a way to think about the inherently unequal and
dependent relationship that children have with mothers and
others who care for them. This area of concern is likely to be at
least as contentious among feminists as is the assertion that we
need theory infused with consideration of caretaking. In the
postscript to this book, I argue for a reconfigured concept of en¬
tity privacy to shield the caretaker/dependent relationship from
intervention and state scrutiny, a concept that is an essential part
of developing a theory of dependency and an argument for col¬
lective responsibility. Some version of privacy will be necessary
to address the assertion that collective responsibility carries with
it the right to collective control over decisions such as who shall
have children and under what circumstances.

III. THE FUTURE OF FAMILY REFORM

It is interesting to note that other disciplines also struggle with

these ideas of dependency and the meaning of family, even if
176 THE AUTONOMY MYTH

they do not explicitly cast the struggle in feminist terms. In his

comprehensive law and economics reader Foundations of the Eco¬
nomic Approach to Law, Professor Avery Katz devotes the last sec¬
tion to “an application on the frontier: family law.” Katz asserts:
“Economic analysis can shed light on any sphere of human in¬
teraction in which individuals pursue their goals subject to
constraint.”21 He describes family relations as

externalities imposed by individual families on the rest of society

and by individual family members on others in the household; in¬
centives to invest in the family’s material assets and in the human
assets of its individual members; strategic behavior arising from
family members’ efforts to influence each other’s conduct; insur¬
ance against the financial and emotional risks of disability, unem¬
ployment, and household dissolution; and the effects of limited
information and bounded rationality on such crucial personal de¬
cisions as family formation and career choice.22

Katz speculates that among the reasons that economics has en¬
joyed “relatively less influence” in family law than other doctri¬
nal fields have is the persistent tendency to conceptualize the
market and family as separate realms.23 Equally significant is his
identification of the difficulty associated with the “fundamental
issues of liberalism” raised by the “recurring need” (inherent in
the whole idea of family) for some family members to make de¬
cisions for others who are incapable of protecting their own in¬
terests.24 Katz thus labels the family “the archetypal paternalist
institution.”25 An economic modgl that posits independent, ra¬
tional individuals not only interacting with each other, but also
seeking to maximize their own utility in that interaction, does
not reflect what is assumed about family relationships.26
The “recurring need” for a “paternalist” family presents a
dilemma not only for economists but also, as I have argued, for
 FEMINISM AaN D ,THE FAMILY
177
P

feminists. The feminist version of the dilemma arises because

inequality and gender neutrality have defined the feminist fam¬
ily law project thus far, to the exclusion of an examination of
this recurring need. Need and dependency mandate not only
paternalism, but also maternalism—the family needs a wage
earner and caretaker, roles historically separate from one an¬
other and imposed in a gendered manner.
Traditionally, men, as husbands and fathers, operated as the
heads of families, with responsibilities to support and discipline
wives and children. Women, as wives and mothers, provided do¬
mestic services—caretaking and sexual services—and owed the
family head obedience and deferral. The traditional gendered
roles complemented each other, father and mother providing
the whole in fulfilling the economic and caretaking needs of the
family.
But who or what is filling the caretaking void left behind as
women abandon or refashion their roles as wives and mothers?
Certainly not men; they continue to act primarily as economic
actors. In fact, what we see emerge, as a result of women’s move
to expand their opportunities outside of the family, is a crisis of
care. We have enough information from educational and em¬
ployment patterns to know with some certainty that most
women are no longer satisfied to act exclusively in the roles of
wife and mother.
To the extent that the changes in family form reflect changing
patterns of gendered behavior, in which women are rejecting
their primary assignment to the family, many feminists view this
as a cause for celebration. As women’s roles are repositioned
within society, however, the necessity of the traditional gender
arrangement for the success of the family, as it has been histori¬
cally understood, becomes apparent. By disrupting the gen¬
dered assumptions that confined women to the home, feminists
also revealed the role or function of the family within society. In
 THE AUTONOMY MYTH
178

exploring this, feminists attacked the notion of public and pri¬

vate, and called into question the idea that the family was lo¬
cated outside of—separate from—society.
One erroneous assumption often manifest in feminist ap¬
proaches to the family as an institution in need of reform was
that the family and the gendered roles within were malleable,
easily recast and reformed in ways that could facilitate women’s
equality in the nonfamily areas of life.27 This profoundly af¬
fected the direction of the reform movement. While old
gendered language has fallen to judicial and legislative gender-
neutral zeal, there has to be much more feminist skepticism
about the likelihood that changes in rhetoric might actually be
incorporated into the interactions and working of real family re¬
lationships.
Complicating what has happened in the context of family law
reform is the fact that the form of equality that is imposed in the
workplace is assimilationist in nature. Ignoring that there have
historically been different social and cultural contexts in which
women operated, all that is required by this type of equality is
that women be treated the same (equally) as the men who have
preceded them.
There is little recognition, and almost no concession, that
women and men may be differendy situated, making equal rules
operate inequitably in practice. Specifically, domestic and care¬
taking responsibilities are not distributed across the genders
equally. Workplaces historically have been designed with the un¬
encumbered worker in mind. The law only demands that
women now have equal access to jc>bs and careers and be treated
the same as that “autonomous,” unencumbered individual.
However, this autonomous worker can only exist when there is
someone in the nonwork world doing the dependency work.
Someone who in the past or in the present has done the depend¬
ency work necessary in the nonwoVk world subsidizes the auton¬
omy of this actor.
 FEMINISM 4NDTHE FAMILY
i79
r

These different social and cultural contexts have complicated

feminists’ search for equality through sameness of treatment.
Familial responsibilities cause women to earn less in the work¬
place, even when policies guaranteeing equal treatment have
been implemented.28 But because of the way we understand
equality (and refuse to examine our ideas of autonomy and de¬
pendency), we live in a world where gender neutrality is equated
with equality. It seems futile to argue that attainment of equality
(and the prospect of autonomy) may in fact require unequal
treatment. However, parity, given different gendered realities, is
only possible through different treatment, afforded with atten¬
tion to the different contexts in which lives are lived.
Of course, accommodation could be made in a gender-
neutral manner. We could urge that circumstances, such as care¬
taking, must be supported regardless of who undertakes them. It
is the role of mother, not her sex, that is disadvantageous to a
woman in a workplace that has been designed for a “breadwin¬
ner” who is supported by someone at home doing the depend¬
ency work. But neutral characterization aside, the existing
circumstances of women and men means that accommodation
would have gendered implications. Accommodation would tend
to benefit women more than men, given the ongoing unequal
investments made in domestic tasks between the sexes. This dis¬
parity in impact leads some to make strong objections to even a
gender-neutral argument for accommodation.
Some feminists argue that a policy of accommodation serves
only to emphasize the differences between men and women,
using men as the “starting point for analysis.” 29 Martha Minow
argues, for example, that an “unstated male norm makes preg¬
nancy and maternity leaves ‘special treatment,’ contrasted to
the ‘normal treatment’ given to employees.”30 Others remain
deeply skeptical about recognition of any differences, even bio¬
logically based ones, such as the respective roles of women and
men in reproduction.
i8o THE AUTONOMY MYTH

In the classic piece on equality as sameness of treatment, Pro¬

fessor Wendy Williams argues against any recognition of differ¬
ences, no matter how they might actually affect opportunity.

The same doctrinal approach that permits pregnancy to be

treated worse than other disabilities is the same one that will allow

the state constitutional freedom to create special benefits for preg¬

nant women. The equality approach to pregnancy . .. necessarily

creates not only the desired floor under the pregnant woman’s

rights but also the ceiling. ... If we can’t have it both ways, we

need to think carefully about which way we want to have it. .. .

My own feeling is that, for all its problems, the equality approach

is the better one. The special treatment model has great costs. . ..

At this point we need to think as deeply as we can about what we

want the future of women and men to be. Do we want equality of

the sexes—or do we want justice for two kinds of human beings

who are fundamentally different?31

IV. CONCLUSION

The particular combination of i) the impossibility of designing

a means for the implementation of equality within the ongoing
family and 2) the imposition of a formal version of equality as
sameness of treatment in the workplace has meant in practice
that mothers now are free to compete with unencumbered
women and men in a workplace that continues to fail to take
family needs into account. As a society, we remain relatively un¬
responsive to the contradictory and conflicting demands placed
on caretakers who also are members of the paid workforce.
Additionally, many people perceive the gender revolution to
be accomplished. For many, the workplace is seen as being suc¬
cessfully reformed, with the imposition of an equality mandate
 FEMINISM 4ND* /
THE FAMILY l8l

and the prohibition of discrimination based on sex. These mea¬

sures do not address the reforms necessary because we have hid¬
den the problems associated with caretaking within the family
and have not explored their implications for opportunities at
work. It is not a solution to this dilemma to deny the gendered
aspects of this pattern of behavior, pretending we can substitute
androgynous individuality for the differentiated, complemen¬
tary roles within the traditional family without drastically trans¬
forming the workplace and expanding the role of the state. I
return to these themes in chapters nine and ten.
 Chapter Seven «

Mothering in a Gender-Neutral World

I. INTRODUCTION

A. Egalitarian Family Law

Consistent with the way in which equality is understood in
America to be sameness of treatment, the language of family
law is now gender neutral.1 Equality mandates that legal deci¬
sions be based on the character, and not the gender, of the indi¬
vidual. Respect for the rights of the individual demands
case-by-case assessments and rejects rules based on gender
“stereotypes.” This is required even when those stereotypes
have some empirical validity.
Gender neutrality has been applied in the law to the cate¬
gories of “mother” and “father” apd to the categories of “hus¬
band” and “wife.” These categories Have been collapsed into
“parent,” on the one hand, and “spouse” or “partner,” on the
other. What we see in family law is the imposition of an equality
model onto an existing unequal distribution of labor and sacri-
fice. As argued in chapter six, this imposition of equality disad-
 MOTHERING 183
if

vantages women, at least to the extent that they are performing

traditional domestic roles.2
This model of equality actually furthers inequality because it
doesn’t take into account the realities of “mothering” within the
family, particularly the ability of a woman who is a mother to
compete with an unfettered person in the workplace. In this
chapter, I argue that these equality rules may also disadvantage
children. Certainly, one effect of the equality revolution has
been the undermining of the legal institution of motherhood.
Care taking has become a suspect category. The idea of mother¬
ing or nurturing as an activity entitled to rewards and warrant¬
ing “special” treatment or consideration has been attacked by
liberal legal feminists as well as by policymakers, politicians, and
fathers’ rights groups.
For feminists, the distrust of special treatment for mother¬
hood often springs from an overarching commitment to equality
for women, which also makes feminists attentive to all situations
in which men are treated differendy. Many legal feminists en¬
dorsed a presumption of joint custody following divorce. For
these feminists, it is imperative that the law reflects society’s aspi¬
rations for equality, rather than attempt to remedy inequality
caused by existing (gendered) allocations of household labor.
Some equality feminists go so far as to suggest that there
should be no ameliorating rules at divorce designed to compen¬
sate women for losses suffered as a result of their assumption of
traditional domestic tasks. The rationale is that for their own
good, all women must be directed toward paid work, even when
they are married to a man who can more than adequately sup¬
port them. The goal is for women to be economically self-
sufficient, and so there should be no incentive for them to not
pursue a career.3 Of course, men are to be nudged into assum¬
ing their share of domestic tasks. The primary strategy, however,
is determined by the belief that by refusing to compensate or re-
 THE AUTONOMY MYTH
184

ward women for choosing traditional domestic tasks over mar¬

ket work, society would influence women, and eventually men,
to change their priorities and behavior.4 The motivation of these
feminists is one of social engineering, in which the goal of gen¬
der equality is clearly a paramount concern.
Liberal feminist equality motivations aside, a great deal of
political discussion about legal reforms is explicitly punitive in
nature. This is certainly the case with discussions about incorpo¬
rating incentives against single motherhood into policy reforms,
whether single motherhood results from divorce or from
women’s having children outside of marriage. Some commen¬
tators condemn single-mother families because they wish to re¬
store the authority of the father and fear that women are raising
children without appropriate paternal supervision and eco¬
nomic support.5 For this group of equality advocates, the real
goal is the restoration of historic inequality. Some of the pro¬
posals for driving women back into the institution of marriage
or preventing them from leaving it seem overtly vindictive as
well as punitive. For example, not too long ago, politicians were
suggesting that children be taken from single mothers and
placed in orphanages.6
Today, however, the backlash may be more subtly coercive.
Recently, we have seen attempts to repeal no-fault divorce,
which would impede on individuals’ ability to exit marital rela¬
tionships. There are efforts to create incentives to encourage
marriage, incentives fueled by federal funding that set up a com¬
petition among the states for creation of such propaganda.7 Sur¬
prisingly, harsh policies directed \£t single mothers, such as the
recent gutting of programs designed'to aid poor families with
children, have received general approval.

B. More Focused Family Reforms

\

Whatever the motivation of reformers, the continued high di¬

vorce rates and the statistics on reproductive, workplace, and
 MOTHERING 185
p

family behaviors show that general and wide-sweeping punitive

measures enacted into law are unlikely to cause significant
changes in behavior.8 Powerful and compelling cultural and
social forces drive evolving changes in norms concerning sexual¬
ity, reproduction, and family formation at the dawn of the
new millennium. Law seems a feeble and inadequate tool com¬
pared to such forces for those who wish to challenge these
emerging forms of family and norms of individual intimate be¬
havior.
More focused and pragmatic are those reforms that accept
the changes in behavior, but try to reconstitute the single-parent
family, structuring it through law into an entity that resembles
the traditional two-parent idea. Such reforms, while seemingly
changing expectations, nonetheless ensure that old patterns pre¬
vail.
Specifically, some recendy enacted family laws make it much
more likely that traditional patterns of paternal right and re¬
sponsibility will continue even in a world in which the form
of many families will otherwise not be traditional. For example,
joint custody and other shared-parenting measures are designed
to equalize biological fathers’ rights to children, regardless of
their marital status and even without demonstration of the
father’s commitment to parenting. Such rules are justified
as means to establish male ties to children that will increase
the voluntary assumption of responsibility for those chil¬
dren.9
For those who do not assume responsibility voluntarily, in¬
creased efforts to collect child support, along with the introduc¬
tion of more invasive schemes, accompany broadened use of
paternity proceedings. The objective of such measures is to
legally link men to their nonmarital children, in order to enforce
the norm of primary male economic responsibility in regard to
those children. The concept of responsibility that informs these
and other efforts reflects the gendered norms of the traditional
i86 THE AUTONOMY MYTH

patriarchal family—the male is clearly viewed as the economic

provider, and male ties to children are not only biological and
legal, but also economic.10
In addition, and consistently with the norms of a traditional
patriarchal model of the family, many argue that it is important
to ensure paternal responsibility in the reconfigured family by
establishing and reinforcing paternal control over the discipline
of children. Paternal responsibility is equated with paternal au¬
thority. It is fascinating that this inherently patriarchal project is
accomplished within the framework of gender equality.11 In
fact, paternal responsibility and its corollary, paternal right,
have both reemerged in the context of equality rhetoric in fam¬
ily law reform.
The equality rhetoric applied to the family has its roots in the
mid-century women’s movement for legal or civil equality.12 As
discussed in chapter six, one significant feminist law reform ef¬
fort sought to discourage formal gender classifications and dif¬
ferent treatment for women and men in the workplace and the
political arena, as well as in families. This movement was suc¬
cessful, and family law is now formally gender neutral. In cus¬
tody cases, this means that reference to or explicit use of a
preference for maternal custody for younger children is no
longer acceptable. Neither parent is to be advantaged (or disad¬
vantaged) as a result of her or his gender.13
In and of itself, a reform that removes explicit gender desig¬
nations from statutes and decision making is not objectionable.
It can even be viewed as desirable on a symbolic level, particu¬
larly if removal of gender has nanegative effect in terms of ulti¬
mate results in actual cases. In fact, if might be beneficial not to
use gender as shorthand, but to be clear about social policy in
this important area. Laws would then have to specifically detail
the desirable characteristics or expectations about caretaking
and nurturing norms that historically underlie the maternal
 MOTHERJNG l87

preference.14 Those characteristics would have to be expressed

in contemporary gender-neutral terms. If the primary factor in
custody determinations is the ability to care for and nurture the
child, instead of a stated maternal preference, we could create a
preference for the parent who has undertaken the responsibility
for the ongoing day-to-day care of the child, or has demon¬
strated a willingness to put the child’s interest ahead of career
demands.15
Gender neutrality had the potential for the articulation of
caretaking expectations outside of the cultural shorthand of
“mother.” Reforming the law in favor of gender neutrality in
this manner would have been productive and encouraging of
genuine reform. Yet the course of reform has been quite differ¬
ent. The quest for gender neutrality in custody decision making
has proven to be too ambitious and too singularly focused on
equality to be satisfied with the mere imposition of gender-
neutral language. In custody decision making, in particular, re¬
form has led to the search for standards or decisional factors that
are neutral in result as well in expression. Of particular concern
are legal rules and standards that are deemed to favor mothers
disproportionately, such as a preference for custody with the pri¬
mary caretaker.
The argument is that since in practice mothers are typically
primary caretakers, the preference for primary caretakers in
custody decisions is unacceptably gender biased in favor of
women. This is a classic disparate-impact legal argument: the
primary-caretaker standard would be said to have an adverse
disparate impact on the custody prospects of men. Thus, a nur¬
turing standard cannot be used. In its place are substituted what
are deemed more “neutral” considerations, such as the quality
of the respective school districts of the parents or general assess¬
ments about which parent is more likely to facilitate and support
visitation by the other parent postdivorce. As one court sue-
188 THE AUTONOMY MYTH

cinctly stated, custody determinations must be “born of gender-

neutral precepts in both result and expression.” 16

II. VALUING CARE

Our fetish for gender neutrality is inappropriate, particularly in

that it imports disparate-impact concepts from wholly unrelated
areas of discrimination law. More is at stake in custody rules
than an objective assessment of the relationships and roles of
women and men. Custody decision making occurs within the
context of a legal system that has, as its stated objective, custody
determinations that are in the best interest of the child. Given
this mandate, it seems clear that the needs and welfare of the
child, not the equality of the parents, should be the central in¬
quiry, the measure with which to judge general rules and specific
cases.17 It seems that gender neutrality as it is implemented—re¬
quiring neutrality as to nurturing—is likely to actually prove
harmful to children.
The obvious question is, how can we apply the “best interest”
test without considering and heavily valuing those things that
mothers overwhelmingly (even if stereotypically) do with and
for children? Nurturing and caretaking—practices that are of
primary importance to the rearing of children—are heavily
identified in our society with the practice of responsible mother¬
ing. The imposition of this cultural expectation on women com¬
plements and is distinguishable from the economic expectations
that primarily define responsible^fathering. What is the logic or
the justice in the position that women tvho live up to the expec¬
tations of motherhood (as well as the men who mother) should
be denied the reward and responsibility of continued custody
and care of their children? To do so. devalues both nurturing
and care. v
 Why this obsession with gender neutrality? Many feminists
paradoxically justify their own tendency to undermine the iden¬
tification of women with mothering and nurturing by pointing
to the need to use gender neutrality to secure women’s equality
with men in areas of life outside the family. Such logic presents
equality as the overriding consideration, regardless of what area
of life is under discussion. If we are to have gender neutrality in
one area, it must be mandated in all others, not only for consis¬
tency’s sake, but because otherwise there will be equality
nowhere. The desire for equality outside the family is not only
the backdrop, but also the driving impulse mandating the legal
system’s reassessment of the fairness or justice of rules favoring
mothers and maternal behavior in determining custody for chil¬
dren.
The absence of changed paternal behavior by those feminist
legal reformers who have taken us in the direction of gender
neutrality is not considered problematic. In fact, contemporary
discussions about the unfairness of rules that favor mothering
often assume that there have been extensive changes in parent¬
ing patterns that make fathering and mothering more alike.
There is little empirical evidence to support this assumption,
and some to refute it. The rhetoric of equality in this regard is
rhetoric of assertion, aspiration, and accusation.
According to this idealized notion of the new, egalitarian
family, because mothers are no longer formally assigned to the
separate sphere of family, they must be considered as equal to
men in their inclination and capacity to earn money. Fathers
must be considered equal to women in their desire and ability to
provide nurturance.18 If this ideal is to be made real, it is argued
that the law should facilitate and institutionalize egalitarian so¬
cial transformations. One way to do this is by insisting on the
gender-neutral ideal—an ungendered parenthood standard.
This argument concludes with a basic appeal to justice: the
 THE AUTONOMY MYTH
190

claim that fathers, as a group, sire unjustly discriminated against

in the family court system.
The fact that only a small percentage of fathers get custody of
their children at divorce is offered as proof of this claim. These
statistics have been fleshed out by harrowing horror stories ac¬
counts of men prevented from seeing their children and unjustly
treated by courts, lawyers, and vindictive custodial mothers.19
Testimonials to the unfairness of the entire process, some more
scholarly in nature and ambition than others, are offered by the
extensive and prolific fathers’ rights network. The message is
that men have lived up to their paternal responsibilities, even
changed their parenting behavior, yet are unjustly treated as
second-class parents. They deserve equal status with mothers
and protection from the excesses historically perpetuated by the
custody-and-control monopoly over children that courts have
given to mothers.
Such anecdotal and undocumented assertions have changed
the way fatherhood is approached and articulated in the rules
governing custody at divorce. Fathers are increasingly seen as
victims of an outmoded system of stereotypes, justifying a call
for restructuring of the custodial process in the direction of con¬
ferring full equality upon fathers.20 Equality is best encouraged
through the implementation of a shared parenting model after
divorce, and men are now more likely to get custody if they en¬
gage in a real contest. The real gain for fathers, however, is in
their ability to maintain significant postdivorce control over day-
to-day decisions regarding their children, even when they do not
have primary responsibility for thos^ children and can therefore
evade the consequences of such decisions.21 What happens is
that fathers are given an option, the right to intercede and re¬
quire that primary caretakers consult and negotiate with them,
but they are not required to participate in the harder realities of
parenthood.
 MOT H.-E RING
!9I

In an interesting rhetorical maneuver, this restructuring on

behalf of fathers is justified as being in the best interest of the
child. It is argued that extensive contact with both parents post¬
divorce is essential to child development. As a result, the rights of
the noncustodian are aligned with the needs of the child, and
thus given ascendancy. The rules reflect a preference for custody
not in the most nurturing parent, but the most generous parent.
This is the parent who is most likely to facilitate extensive con¬
tact with the other parent postdivorce. Further, generosity is
accomplished and ensured by extensive monitoring and super¬
vision of the primary caretaking parent. For many advocates of
paternal equality, the new ideal can only be realized in a prefer¬
ence for joint custody.
Rather than justice and egalitarianism, the degendered cus¬
tody rules represent a perverse affirmative action scheme. Male
parenting behavior during marriage is excused from assessment
under otherwise-imposed nurturing and caretaking norms.
Men will thus be permitted under laxer standards to continue to
devote primary attention to their careers and extrafamilial ac¬
tivities. They can do so without risking adverse consequences
when they decide they want to assert claims to control their chil¬
dren postdivorce. A mere basic biological connection to the
child justifies a claim for shared custody and control rights that
equalize the postdivorce relationships between both parents and
their child. Nurturing is devalued, ignored, and unrewarded in
such a scheme.
Of course, part of the logic behind this approach to custody is
that fathers contribute in different ways to the well-being of
their children. They provide economically. Some argue that a
man should not be penalized postdivorce merely because he was
the prime economic provider for his children, rather than the
primary caretaker or nurturer. And, the argument continues, of
course the wage earner role often decreases the time and energy
 THE AUTONOMY MYTH
192

available for caretaking. To overvalue the time and energy ex¬

pended in caretaking in assigning postdivorce responsibility and
authority would provide an inequitable windfall for the care¬
taker, unfairly advantaging her in the custody determination.
The asymmetry of this logic should make it clear why it is
problematic (though it is not apparent to those making the argu¬
ment). First, any system disregarding caretaking because of a
desire to avoid penalizing the primary wage earner (equalizing
his chances to gain custody and/or retain control over children)
risks ignoring the penalties already suffered by the parent who
has been the primary caretaker. The time and energy devoted to
caretaking does, in fact, decrease and detract from opportunities
to invest in individual market skills and participate in market ac¬
tivity.
In fact, the very argument offered by fathers’ rights pro¬
ponents to explain why fathers do not engage in primary care¬
taking—they are working—concedes that such caretaking
demands the sacrifice of market skills and career development.
Should custody law further deprive the caretaker, robbing her of
the benefits of her nonmarket work? At divorce, she has already
invested her time and energy in caretaking. Should that sacrifice
be compounded by the infliction of a further harm—denial of
that work by not counting it positively when considering who
should have future custody and control over her children? Even
if primary custody remains with the caretaker, the imposition of
a sharing ideal postdivorce through joint custody-like arrange¬
ments burdens the custodian by forcing her to negotiate, cajole,
and console the noncaretaking parent after divorce because she
continues to be tied to him in a shafed parenting scheme.
Provision of economic benefits to the family just does not
have the same negative implications and consequences for the
provider in the postdivorce world as-does the provision of care¬
taking. A caretaker may compromise or forgo altogether skill
 MOT HTL RING
m
development that would add to her resume, culminate in en¬
hanced marketable skills, and improve her economic position.
Economic contribution to children’s welfare, by contrast, is the
result of market activity that also improves the provider’s owns
skills and stature in the market. This self-investment is not the
equivalent of the sacrificial investment in others involved in
caretaking. The trade-offs are not the same.
The adverse effects on the development of market skills that
result from an investment in children also occur when the pri¬
mary caretaker engages in paid work in addition to care taking.22
An employed caretaker compromises her market position by as¬
suming primary responsibility for her children. There are risks
associated with everyday events, such as illness or failures in
childcare arrangements, that necessitate missing work or estab¬
lishing more flexible (therefore more tangential) connections
with the workplace. These responsibilities are typically assigned
within a family to only one parent, usually the one with the
lower wage-earning potential (generally the woman).23 Of
course, more attention to the demands of the workplace might
compromise her caretaking. It is a dilemma expressed in the
term “work-family conflict.”
And, lest the anti-essentialist rhetoric totally obscure appreci¬
ation for elementary biology, we must take into account that
pregnancy and childbirth, as well as breast-feeding, are female
functions that may temporarily affect the physical and emo¬
tional resources available for other endeavors. These are gen¬
dered factors that have serious economic implications.
Nonetheless, custody debates do not explicitly address these im¬
plications and, through the imposition of the equality model,
treat caretaking and economic support as equivalent sacrifices
and contributions to the family.
In addition to the basic justice argument for valuing and re¬
warding caretaking as something distinct, there is a social engi-
 THE AUTONOMY MYTH
i94

neering argument that should also be made. Equating care and

economic contribution perpetuates the very behavior that
equality advocates seek to change. If caretaking is devalued,
men have no reason to change their behavior since they can
leave the marriage relationship with the future benefits gained
by their investment in themselves intact, as well as realize the
benefits of their wives’ investment in the marital children. They
are not penalized for failing to sacrifice personal development or
advancement to care for children.24 Through the assertion of
neutrality and equality, they are set free to continue the tradi¬
tional male preoccupation23 with the workplace and market¬
place. Further, someone else’s labor makes it possible for them to
also have children without risking loss of control or paternal au¬
thority should divorce occur.
Why have the arguments evolved in this way? Certainly, as
has already been stated, the power of equality ideology is cru¬
cial, but who actually wields the rhetoric also matters. It is cer¬
tainly not the case that policymakers and legislators typically
adopt feminist perspectives. Fathers’ rights advocates, however,
seem more successful with the equality language they have ap¬
propriated.
Fess-symbolic justifications have also been at work on the fa¬
thers’ rights side of the debates. One very effective argument for
increasing the rights and control of noncustodial fathers has
been that this will ensure compliance with child-support orders.
The fact that child support enters into the picture as an influen¬
tial factor in the context of divorce is not unexpected in a society
in which payment of child supports the exception and not the
«

norm.26 But the nature and source of these arguments are curi¬
ous. Economic irresponsibility is excused and justified by fa¬
thers’ rights advocates, who argue that men’s widespread failure
to pay child support is attributable -to the frustration and pain
they experience as a result of their unjust treatment as second-
class parents. Overwhelmingly, male policy bodies have ac-
 MOT H^E RJNG
I95
v

cepted this argument and assume that divorced fathers have a

basic goodwill and a natural inclination toward responsible be¬
havior.27 They believe this despite substantial statistical evidence
that this is not how many divorced fathers respond postdivorce.

III. FATHERHOOD

What has been missing from policy and reform discussions thus
far is a debate about the nature of fatherhood and the transfor¬
mation of the role of the father in response to changing expec¬
tations, norms, and practices. How does the desire for gender
neutrality and the ideal of egalitarianism play a role in the cre¬
ation of a new set of norms for fatherhood? Men should be en¬
gaged in this type of rhetorical and conceptual exercise,
following the consciousness-raising and conversational models
of the last few decades through which women successfully trans¬
formed their roles.
Much of contemporary fathers’ rights discourse, however,
has concentrated almost exclusively on the perceived failings of
mothers and their alleged vindictiveness and irresponsibility.
The strategy is successful, and as a result, the failures of fathers
are turned back on mothers. Male foibles are cast as merely re¬
sponsive to women’s actions and as understandably defensive. A
sense of crisis for fathers has been generated concerning visita¬
tion rights, for example. The assertion of fathers’ rights groups
is that mothers typically persist in interfering with fathers’ access
to children. There are suggestions that in retaliation, these
mothers should be subject to fines and/or imprisonment or
should lose custody of the children.
It is also alleged that mothers are at fault for misuse of child-
support payments. Fathers’ rights advocates speculate that
mothers use their meager and sporadic child-support awards to
support vile habits or indulge new lovers.28 These undocu-
 THE AUTONOMY MYTH
i96

mented accusations receive media and legislative attention and

have prompted suggestions for invasive reforms, such as manda¬
tory yearly accounting.29
A substantial amount of fathers’ rights discourse character¬
izes mothers using negative and malicious stereotypes, arguing
for monitoring, punishment, containment, and control over
mothers. Such rhetoric is premised on the assumption that
mothers can exercise rights over their children only at the ex¬
pense of others. Every step to benefit custodial mothers is per¬
ceived as causing potential harm to someone else, fathers in
particular, but often also to those same children.
Another strain of fathers’ rights rhetoric, not as overdy hostile
to mothers, is associated with the historical exclusion of some
men from many of society’s rewards and privileges because of
their race, class, or ethnicity. Even though sympathetic to
women, this discourse is paternalistic and patriarchal.30 Its prac¬
titioners do not conceptualize the problem as a loss of men’s tra¬
ditional privileged position in the family, but still indulge in the
assumption that it is imperative to restore fathers to their mythic
position as “head” of the household.31
In this line of argument, fatherhood represents a window into
the “real” or hard issues of unemployment. Fathers must have
access to jobs and training programs, it is argued, in order to be
fathers. Once again, the essential nature of fatherhood is not
found in caretaking, but rather in economic provision. These ar¬
guments resort to images of traditional patriarchy in an attempt
to persuade the dominant culture of the need for economic jus¬
tice for this class of fathers. In fact, it is considered problematic
if mothers are economically independent of fathers, either
through provision of state resources to single mothers or be¬
cause the mothers themselves earn wages. Economically inde¬
pendent women are seen as taking over the male role.
Some of the rhetoric of civil fights organizations has gone so
 MOT H,sE RING
*97
r

far as to suggest that black women, particularly as single moth¬

ers, emasculate black men,32 and that women in general are in¬
capable of raising sons. Both strains of fathers’ rights discourse
are based on notions of traditional fathers’ rights and position.
Neither has any conceptual difficulty with the reactionary asser¬
tion that the welfare of children is primarily and largely depen¬
dent upon society’s treating men better and reining in women
who have exceeded their family authority. The emerging social
reality of single mother-and-child units is either ignored or pro¬
vokes punitive measures that we justify as necessary so that men
can assume their appropriate roles and actually perform as the
heads of families.
Many of the arguments about paternal right and responsibil¬
ity in regard to children that have been made in the context of
divorce are also made in nonmarital contexts. In recent years,
unwed fathers’ claims to custody and visitation have strength¬
ened significantly. In contrast to the patina of parental nurtur¬
ing equality in the discourse concerning divorce, however,
fatherhood in the welfare context is almost exclusively and most
explicitly about how to enforce male economic responsibility.33
While conservatives and fathers’ rights advocates are most
vocal, the desire to ensure the dominance of marriage is also dis¬
coverable in the work of more liberal commentators. They, too,
evidence a belief in the essential incompleteness, and hence
necessary complementariness, of the distinct social roles of
mother and father.
Political theorist Iris Marion Young astutely identified the pa¬
triarchal dimensions in the policy arguments of William Gal-
ston, the civil societarian discussed in chapter three. Galston
served as an influential adviser to former president Clinton dur¬
ing the 1996 welfare reform. He has asserted that the state
should not be value neutral but rather should pursue policies
that validate and strengthen traditional marriage.34
 THE AUTONOMY MYTH
!98

Young admonished Galston by asserting that society s interest

in rais-ing good citizens can be accomplished in a variety of
family forms. Galston’s suggestion that the state create incen¬
tives to strengthen marriage wrongly assumes that only one kind
of family form can nurture a strong society. Galston makes his
assertions on the basis of ambiguous and inconclusive studies30
that purport to show that “children in divorced families tend to
suffer the kinds of economic and psychological damage that re¬
duce their capacity to become independent and contributing
members of the community.”36
As Young points out, Galston equates poverty with single¬
parent status (although many of the poor are married) and rec¬
ommends marriage as the cure for poverty.37 She addresses and
refutes these assertions, in part by pointing out that Galston ig¬
nores the fact that a “stable marriage means that women are
often dependent on men and suffer power inequality and vari¬
ous degrees of domination by men both in and outside the
home.”38
Perhaps the most interesting feature of the liberal and conser¬
vative arguments against single motherhood and for reestablish¬
ing a marriage-based family ethic in the welfare context is the
conflation of family form with economic consequences. The
likelihood of any family, traditional or not, successfully escaping
poverty and raising law-abiding citizens is related to the eco¬
nomic, social, and community resources it has available.
To refute the idea that only the traditional family provides
mechanisms for avoiding poverty and other social ills, one need
only look to the condition of children in other countries that
provide such social goods as health* care, day care, child al¬
lowances, housing, and guaranteed basic income.
In the United States, we ignore the fact that European coun¬
tries, which provide such guarantees even if they have high rates
of nonmarital births, historically have far less crime and poverty
 MOT h -t; ring
!99
y

than we do.39 In Sweden, for example, where the typical child is

born in a nonmarital family, social status and economic destiny
are not determined by the marital status of one’s mother.40
In the United States, by contrast, there has never been a real
welfare state, a structure in which the collective national com¬
munity ensures basic entitlements for all its members as individ¬
ual citizens, independent of the form of family in which they
live. It is the private family, not the public state, that is primarily
responsible for the welfare of children, the ill, and the elderly,
eclipsing the need to consider collective responsibility for their
dependency.
As discussed in chapter two, this private family is assumed
ideally to operate independent of the state and of the market in
fulfilling its caretaking responsibilities.41 This independence,
however, is not accomplished unless the family is able to produce
both economic support and caretaking labor, tasks historically
allocated among family members along gendered lines. Men’s
role as economic providers serves an essential function in an ide¬
ological system in which dependency is privatized and will not
be readily displaced until there is some greater public responsi¬
bility for the provision of essential goods.
Historically, it was the male breadwinner who, acting in both
the public and private spheres, brought from the workplace the
economic resources to provide for the family. These resources
were not only a paycheck, however. They also included what in
other countries are social goods ensured by the government to
its citizens—essential items such as health insurance and eco¬
nomic security in the form of pension benefits and social secu¬
rity. In the United States, these essential goods are delivered
through the combination of marriage and workplace, not
through the state as a result of its responsibility to guarantee all
citizens basic human needs. Family and workplace serve as me¬
diating institutions—structures through which social goods are
200 THE AUTONOMY MYTH
«

distributed—and those who stand outside of one or the other

risk poverty.
Coupled with this privatized structure is the failure of the
state to assume responsibility for child care or to provide a child
allowance, as other countries do in order to assist in caretaking.
This means that the historic role of wives as caretakers an¬
chored primarily in the family continues also. Today it may be
that women work outside of the home, but this should not ob¬
scure the fact that the role of caretaker within the private family
remains central to our thinking about the relationship between
that family and the public institutions of state and market.
As these last insights indicate, changing the historic division of
labor within the family will be difficult. Such change will neces¬
sitate recasting our societal expectations for fatherhood so that it
is more than just an economic relationship with the family.
However, expectations that fathers (or breadwinners generally)
also engage in caretaking will cause as many complications as
has the expectation that caretakers engage in market work.
In order to achieve either objective beyond a mere rhetorical
level, it will be necessary to transform the workplace and revi¬
sion the role of the state so as to ensure family-friendly public in¬
stitutions that do not require compromise between the demands
of the workplace and the demands of dependents.42
The lack of adjustment in market and governmental struc¬
tures in the decades since the ascendancy of the egalitarian fam¬
ily is disheartening. Adjustment in these institutions is necessary
to support and facilitate the attempts to make the family a more
just social structure. If our society were interested in real reform,
there are a few areas in which substantial reassessment and
reevaluation might be undertaken.
Given how the roles of men as husbands and fathers would
have to be altered in pursuit of 3 more egalitarian family, it is es¬
sential to tear down the ideological walls that separate family,
 MOT H<£ RING 201
r

state, and market, and to realize that all are mutually contin¬
gent. We now limit and confine obligations and responsibilities
to one institution and ignore the responsibility of others by con¬
structing independent spheres. What is needed is integration. If
we want to recognize that people have a right to work, but that
workers are also family members who may have responsibility
for the dependency of others, then we will have to develop po¬
lices directing workplaces to accommodate caretaking responsi¬
bility.
It is naive to think that transformation in the family will not
necessitate some complementary restructuring of the workplace
and increased participation on the part of government.43 Gov¬
ernment and market in combination must remove the obstacles
and burdens associated with combining caretaking and paid
work that have developed around an antiquated, unrealistic
model of the family in which there was a caretaker who comple¬
mented the wage earner.
The new workplace norm should be that of the dually re¬
sponsible worker. The question would then become: how can we
ensure the caretaker’s right to work—her right to earn while not
sacrificing the well-being of her children or other dependents?
The market must be transformed. If it does not do so on its
own, the government must structure family-friendly policies in
the workplace. This can be accomplished by regulation or by in¬
centives offered through the tax system. The list of proposals
may be long and details will be vexing, but at a minimum, paid
family leave for all workers, flexible workweeks, and subsidized
child-care facilities in which the workers are decendy paid
would be foundational.
By making nurturing and caretaking a central responsibility
of the nonfamily arenas of life, we structure an equal opportu¬
nity to engage in nurturing and caretaking. Under these circum¬
stances, men may actually be more likely to take time and
202 THE AUTONOMY MYTH
«

energy from their market careers to invest in nurturing their

families. If they don’t, at least it will be clear that they have made
a free choice to forgo nurturing—a choice unfettered by institu¬
tional constraints. These men can then be jusdy held to the con¬
sequences of that choice when it comes time to decide who has
earned the custody of children or the right to demand social
subsidy for caretaking work. In this way, establishment of a du¬
ally responsible worker norm will lessen the cases in which
women are punished in the market for caretaking responsibili¬
ties in the home.

IV. CONCLUSION

Women’s roles within families and in relation to the marketplace

have undergone tremendous changes over the past several de¬
cades. There is now an expectation that women will work in the
market and continue to perform in the home. This expectation
is enforced through gender-neutral family laws and an accom¬
panying explicit set of expectations that women are responsible
for their own and their children’s economic well-being either
postdivorce or if they do not marry. On the other hand, perhaps
unsurprisingly, expectations about men have not been so trans¬
formed. In part, this is because we value economic advance¬
ment over nurturing. There are no corresponding sets of
individually applicable rules mandating that men be responsible
for nurturing to complement our expectations that women be
economically self-sufficient. Aftd families bear the burdens of
dependency, while market institutions are free to operate as
though the domestic tasks that reproduce the society were some
other institution’s responsibility. Instead of making more and
more concessions to the unequal state of affairs that has resulted
from this explicit ordering of priorities, we should forgo at-
 MOTHERI N G 203
M

tempts to coax men into caretaking and instead require that all
social institutions assume some responsibility for the needs of
caretakers.44
Instead of structuring incentives for men to act responsibly,
we should worry about the double burden that has been foisted
on mothers, and seek to make it possible for them to meet the
conflicting demands society is imposing. This will require sub¬
stantial societal reordering, but when caretakers have the means
to meet the demands of those for whom they have assumed
responsibility, the entire society, including our children, will
benefit.
Child support is not a viable solution to the problems of child
care and dependency. In fact, the theoretical development of
child support stands as a diversion to the development of effec¬
tive policy.45 On an ideological level, primarily because it is
based on the traditional notion of a nuclear family, child sup¬
port furthers the assumption that dependency is a private mat¬
ter.46 Indeed, insistence on child-support policy is an attempt to
reconstruct the gendered complementarity of the traditional
family through the imposition of the economically viable
male.47
On a practical level, child support will not end child poverty.
Even when it is paid, the typical amounts are woefully inade¬
quate to actually support a child.48 Many of the fathers who are
under an obligation do not pay the child support they are re¬
quired to, either because they are unwilling (deadbeat dads) or
unable (dead-broke dads).49 The Institute for Women’s Policy
Research, in a report prepared in 1999 on the relationship be¬
tween child poverty and child support, concluded that

. . . overall, child support constitutes only a small proportion of

the total family income of single-mother families. For single

mothers who are most disadvantaged in getting a stable job and

 THE AUTONOMY MYTH
204
«
f>
y
becoming self-sufficient, the same factors—low education, being

a minority, having young children, and weak attachment to the

labor force—are also associated with the chances of obtaining a

child support agreement, the amount of child support awarded in

these agreements, and the actual amount of child support col¬

lected. This points to the limitation of using child support as a

safety net or replacement of government transfers for single¬

mother families on welfare, because those single mothers who are

disadvantaged in the labor market are also disadvantaged in ob¬

taining child support.50

It may be that we want to establish and collect child-support

orders for reasons other than that they can in fact substitute for
governmental or collective assistance to children in poverty, but
in doing so, we should not delude ourselves that we are solving
the larger problem.
 Part Four

The Autonomous Individual

and the Autonomous Family
Within the Social Contract
M ainstream treatment of law and jurisprudence typically
fails to take into account the institution of the family and the
problems of intimacy and dependency. Discussions focusing on
the market, for example, typically treat the family as separate,
governed by an independent set of expectations and rules. The
family may be viewed as a unit of consumption, even as a unit of
production, but it is analytically detachable from the essential
structure of the market.
Similarly, jurisprudential work reflecting on theories of jus¬
tice, autonomy, and construction of the individual assume the
availability and competency of the family as the societal institu¬
tion that takes care of dependency. As chapter six indicates,
even many feminist works often proceed on the assumption that
the family can be easily manipulated and transformed so as to
serve the interests of gender equality.
The neglect of the family in legal and other theory is not an
indication that it is a theoretically unimportant institution. In
 THE AUTONOMY MYTH
208
*

\ . .
fact, as earlier chapters indicate, the family’s importance is re¬
vealed in its very segregation from other areas of human
endeavor. In setting it up as separate and distinct, we accom¬
modate the otherwise messy problem of dependency. Earlier
chapters review the doctrinal implications of this dual charac¬
terization of the family as both separate and essential, which is
reflected in the conceptual division of the world (and law) into
the realms of “the public” and “the private.”1 The family em¬
bodies the private sphere of human experience—a sphere in op¬
position to the public world of market and economic efforts.
Furthermore, the characterization of the family as the preemi¬
nent private space carries with it sets of assumptions about fam¬
ily relationships. These are cast as different in formation,
function, and form than relationships existing in the public
world. Families are assumed to be altruistic institutions held to¬
gether by affectional bonds.
Instead of being cloaked with the mantle of privacy, the fam¬
ily must be brought to the center of legal and jurisprudential
theory and made an explicit part of that theory. In the chapters
in this section, I further articulate the nature of the family as a
sociolegal institution and explain why I feel it is essential to
reconceptualize and transform our notions about the family and
its relationship to the state and other societal institutions. This
analysis is based on the insight that the family is not separate and
should not be segregated into the “private” sphere. The family is
an interactive and dynamic public institution that has been as¬
signed an historic role that is essential to society. That role, as
well as the aspirational and erdpirrcal dimensions of the family,
must be explicit considerations in the development of any
worthwhile social theory.
In recent debates over social policy related to family, caretak¬
ing, and dependency, there is little attention paid to figuring out
what might be the optimal or appropriate distribution of re-
sponsibility for dependency across societal institutions. Nor is
there consideration of how we might structure the correspon¬
ding relationships among government, market, and family in re¬
gard to dependency.
Of course, we do debate and theorize about structuring
responsibilities in regard to some institutional arrangements.
It is just the family that seems to be left out of debates as an
explicit unit of analysis. For example, there is a great deal of at¬
tention paid to what might be the appropriate institutional
interrelationship between state and market. Scholars and po¬
liticians set forth and defend competing positions on how to
define the appropriate balance between freedom and respon¬
sibility; between subsidy and self-sufficiency, in regard to eco¬
nomic and regulatory matters involving state and market
institutions.
My task in the chapters in this section is to lay the foundation
for similar arguments about the family and its interrelation¬
ship with other societal institutions. How should the work asso¬
ciated with dependency be distributed? Should caretaking be
publicly subsidized and supported or kept within the private
family? How can we justly allocate the costs of caretaking? Of
course, my goal in developing these arguments is ultimately
to show how compelling is the case for the state and the market
to assume more (or some) primary responsibility for depend¬
ency.
In developing my arguments about the need for adjustment
in our basic social structures in chapter seven, I use the concept
of contract. Specifically, I resort to the metaphor of “social con¬
tract” as a way to think about how institutions and relationships
are thought to embody norms of justice asserted to be widely
shared by members of a society. I do not intend to engage in the
extensive, abstract (often turgid) debates about social contract
theory undertaken by political theorists. My modest objective is
 THE AUTONOMY MYTH
210
<
fi

to use the very modern concept of contract to question the jus¬

tice of contemporary institutional relationships and arrange¬
ments.
Contract is a useful tool with which to examine family rela¬
tionships—relationships that have their roots in the more an¬
cient realms of status and hierarchy.2 It is a useful rhetorical
device precisely because it implies a process whereby individuals
are seemingly given the means to voluntarily and willingly as¬
sume obligations and gain entitlements, thus expressing their
autonomy. Although contract as an ordering mechanism is gen¬
erally thought to bring stability and enforceability to relation¬
ships, contract theory also takes into account the possibility of
change. In using the concept of contract I am particularly inter¬
ested in exploring the tensions in the relationship between the
social contract and societal change.
Change can destabilize existing relationships. In this re¬
gard, the idea that contracts are made in the context of “back¬
ground” conditions—conditions essential to the continued via¬
bility of ongoing contractual relations—supports my argument
that our social contract needs to be reworked. Once the back¬
ground conditions have shifted precariously in ways that make
existing relations impossible or unjust, the terms of the initial
covenant must be reassessed. Specifically, profound changes in
society and other institutions should provoke us to reconsider
the role of the family—to explore whether its historic role in re¬
gard to responsibility for dependency has become unjust and
unworkable on either societal or individual family levels, or
both.
Social contract theory has a tradition in liberal political
thought dating back to the seventeenth century, but it has only
recently been revived and reworked into a modern theory of
justice.3 In its modern form, sopial contract theory does not pur¬
port to be an account of the historic origins of our political sys-
 AUTONOMY WITHIN THfi SOCIAL CONTRACT 211
r

tem, but a framework for thinking about legitimacy and political

obligation.4 Concepts of social contract theory are used to jus¬
tify certain principles or political positions.
There are two arguments typically made in favor of using so¬
cial contract as a device. First is the idea that social contract the¬
ory provides a means for resolving disputes in a diverse and
democratic society in that it posits a prior commitment to
shared themes and premises that can assist in resolving those
disputes.5 The second is “because of the moral significance of
autonomy.”6 Christina Boswell states:

. . . what is important about the contract is not so much that it

ensures a stable outcome, but that it enables participants to exer¬

cise their individual freedom in choosing the terms of their inter¬

action. The significance of the contract is in the exercise of

autonomy in choosing terms, rather than the guarantee of coop¬

eration.7

Social contract theory engages the concept of individual

autonomy at two fundamental levels. Paradoxically, individual
autonomy is viewed in the first instance as ceded to the state
in order to confer upon it the authority to preserve order. Order
is preserved so that the individuals initially giving up their
autonomy may enjoy future full autonomy in their interac¬
tions with each other. David de Carvalho states the relationship
thus:

[T]he social contract [is] an agreement between individuals, by

which they give to the state power to enforce the rule of law so that

they can, to the greatest extent possible, exercise their liberty in

the pursuit of their own interests, in particular through the opera¬

tions of the free market.8

 THE AUTONOMY MYTH
212
t

This statement reflects what lias been termed the most perva¬
sive” and “indispensable” principle of contract theory gener¬
ally—that the will of the parties sets their legal relationship.
This is recognition of private autonomy’s primacy in contract
theory and the basis for the formal requirements of contract law,
particularly the idea that there must be a “meeting of the
minds” and “consent.”9
Of course, the social contract is not a real contract, re
duced to writing and signed by the parties, as private contracts
typically are. The idea of the social contract is a way of ap¬
proaching the relationship between the individual and the sys¬
tems of coercion and authority within which she or he lives. The
exact nature of this symbolic contract and its specific contours
have been the subjects of political theory and legal debate for
decades.
The works of Professors Robert Nozick and John Rawls illus¬
trate two positions often named as contrasting models of social
organization. Nozick’s position is that basic social i elationships
are found in the interaction among autonomous and indepen¬
dent individuals, ideally unencumbered and unburdened by
legal regulation and state interventions.10 Nozick begins with the
speculative assumption that in the state of nature, an individual
owns himself, his own labor, and any property it produces or
procures.
In this regard, the state appropriately assumes responsibility
for the mechanism whereby a free market (for individual trans¬
actions) might be facilitated and maintained. But beyond pro¬
viding police protection and institutions such as courts for the
maintenance of order, enforcement of contract, and transmis¬
sion of property, the state maintains a minimal role. Individuals
owe little to the collective and have no moral or legal responsi¬
bility to others except that fashioned through criminal or con¬
tract law.
 AUTONOMY WITHIN T it E SOCIAL CONTRACT 213

Under this view, the market is the basic social institution, dis¬
tributing goods and values in a manner that is both just and effi¬
cient. If individuals fail, it is their own responsibility and reflects
their lack of ambition, motivation, or talent. This position de¬
fines the basic parameters of the economic “conservative” argu¬
ment today. Market relations are viewed as the most efficient
way to create individual wealth and order society. Government
intervention is condemned as fostering poverty and undermin¬
ing family and other “private” institutional relations, ultimately
leading to crime, social disintegration, and disorder. Corre¬
spondingly, the solution for existing social problems (caused by
governmental intervention) is to return to the private sector—
the market—allowing it to perform the collective function of ef¬
ficient distribution.11
In contrast to Nozick, Rawls posits that the collective does
have legitimate claims on the individual and that the state may
appropriately work to perpetuate the “collective good,” a social
resource to which individuals may be required to contribute
through taxation and other tithes.12 Distribution of property is
potentially problematic and susceptible to challenges based on
injustice. Rawls is the intellectual descendant of John Locke,
who, in 1690, asserted:

It is true governments cannot be supported without great charge,

and it is fit every one who enjoys his share of the protection should

pay out of his estate his proportion for the maintenance of it. But

still it must be with his own consent—i.e., the consent of the ma¬

jority, giving it either by themselves or their representatives chosen

by them; for if any one shall claim a power to lay and levy taxes on

the people by his own authority, and without such consent of the

people, he thereby invades the fundamental law of property, and

subverts the end of government. For what property have I in that

which another may by right take when he pleases to himself?13

 THE AUTONOMY MYTH
214
«
’•v
Rawls likewise bases his theory on the premises that (i) in the
original “state of nature”—the base by which to judge the jus¬
tice of our current system—each person was in possession of his
or her own labor; (2) there were resources that were held in com¬
mon prior to their appropriation by individuals; and (3) justice
demands that an individual is only able to appropriate a limited
amount of property without violating principles of just entide-
ment. Waste and spoilage, as well as greed, are to be avoided. In
the Lockean scheme, property is said to be commonly owned,
and distribution is a social or political act that can provoke ques¬
tions of distributive justice.
Rawls introduces into this formulation a construct that is use¬
ful in arguing that wealth redistribution should take place. In
essence, he asserts that justice demands that the principles gov¬
erning society should be those that citizens would invent from
the perspective of the “original position.” Citizens engaged in
this thought experiment must imagine that they have all the in¬
formation they need about society and its functioning, but are
prevented by a “veil of ignorance” from knowing what individ¬
ual characteristics they will possess in such a society. From this
vantage (or disadvantage), the members of this hypothetical so¬
ciety can most disinterestedly and fairly bargain and deliberate
about what general rules should govern them all. Because they
are ignorant of the class, social position, and individual charac¬
teristics they will attain in the “real” world, there is no incentive
to bargain for special advantages for one group. Justice will thus
be free to emerge because considerations are disassociated from
the individual characteristics Vand\identities of the arbiters of
fairness.
As part of his theoretical framework, Rawls presents two
principles of justice: the difference principle and equal basic lib¬
erty. The difference principle posits that there are potential dif¬
ferences in social goods such as power, authority, wealth, or
 AUTONOMY WITHIN tAe SOCIAL CONTRACT
r 215

leisure. Equal liberty (or justice) requires a distribution that ben¬

efits most the most disadvantaged members of society. Further¬
more, differences in the distribution of social goods are
acceptable only if they are attached to positions open to all
under the principle of equal liberty (opportunity).
It seems hard to refute the argument that one’s perception of
justice might be altered if one were not sure what set of individ¬
ual and group characteristics one might have. These character¬
istics have attendant entidements and social advantages in a
world where poverty, illness, prejudice, and catastrophe are facts
of many people’s everyday lives.
Relevant to our consideration of autonomy and dependency,
however, is the criticism of feminist theorists, most notably Pro¬
fessor Susan Moller Okin. Okin has criticized mainstream
philosophers such as Nozick and Rawls for their failure to specif¬
ically theorize the family when articulating ideas about justice.14
Okin is mainly concerned with the omission from the main¬
stream discussions of a sense of what would constitute justice
within the family. Although she does not cast it in exactly these
terms, Okin’s focus is on the existing gender system, imple¬
mented in the family through dependency work.
Professor Eva Kittay also criticizes Rawls for failing to include
a discussion of dependency in his theory.15 Consistently with the
arguments I have developed here and elsewhere,16 Kittay argues
that a society based upon a theory of the political cannot ex¬
clude dependency. If we exclude such concerns, we will end up
exploitating caretakers and/or neglecting the dependents them¬
selves.
Perhaps in response to such criticism, Rawls in his last book
explicitly addressed the family, but in limited terms. He dis¬
cussed the family in two places: in part I, “Fundamental Ideas,”
he observed that the family is one of many societal institutions
that form the basic structure of a well-ordered society17:
2l6 THE AUTONOMY MYTH
«

[T]o establish equality between men and women in shanng the

work of society, in preserving its culture and in reproducing itself

over time, special provisions are needed in family law (and no

doubt elsewhere) so that the burden of bearing, raising, and edu¬

cating children does not fall more heavily on women, thereby un¬

dermining their fair equality of opportunity.18

Although he focused on fairness and justice, however, Rawls

did not elaborate on the problem of unequal distribution of
women’s and men’s contributions to society, nor did he suggest
any strategies to address this problem, other than the vague ref¬
erence to “special provisions.”
Rawls also mentions the family in part IV, “Institutions of a
Just Basic Structure,” in a section entided “The Family as a
Basic Institution.” He opens with the caveat, however, that his
aims are “modest”—he intends to indicate why the principles of
justice apply to the family, but not to explain what reorganiza¬
tion is required by these principles. He suggests that the family
performs a socially necessary function—the care and education
of children, who must develop a “sense of justice” so they can be
effective citizens.19
According to Rawls, the principles of justice and fairness
apply to the family, but not within the family. Principles of justice
can promote equality by guaranteeing the “the basic claims [to
rights and liberties] of equal citizens who are members of fami¬
lies.” 20 Rawls does not seem to believe that the unequal distribu¬
tion of labor between women and men is a pervasive problem,
as he asserts that “[sjince wives ar£ equally citizens with their
husbands, they have all the same basic rights and liberties and
fair opportunities as their husbands; and this, together with the
correct application of the other principles of justice, should suf¬
fice to secure their equality and independence.”21
This concession to the family is not epough, and I therefore
agree with Okin’s and Kittay’s general criticisms of Rawls.
 AUTONOMY WITHIN* THE SOCIAL CONTRACT 217
0

However, I would go even further. In the first instance, I find the

Rawlsian position to be incomplete and unsatisfying because it
proceeds from the wrong set of assumptions. Rawls’s theory
(and those that are conceptually compatible) is based on argu¬
ments appealing to empathy—to the idea that inevitably there
are going to be victims in any form of social organization. If
someone is operating from a position of ignorance, he will not
know in advance what social disadvantages he will possess and
will, thus, be fair in devising (or consenting to) a system of distri¬
bution.
Rawls does address many of the characteristics that are typi¬
cally designated as disadvantages, such as race, class, and gen¬
der, but leaves the interfamily institutional arrangements outside
of his theory. In failing to confront family position (or status) as
conferring advantage or disadvantage, Rawls leaves an empiri¬
cally significant source of actual social and economic injustice
beyond his consideration.
This is important because it does more than obscure injustice
within the family. It seems to me that relationships within the
family are not only a source of inequality in need of correction,
but also essential to understanding arrangements outside of the
family. If family were a central part of a justice analysis, and
family roles were also assessed behind the “veil of ignorance,’
the structural position of the family in society and the attendant
appropriation of domestic labor by the state and the market
would become apparent.
Thus, the injustice that would be revealed would be not only
that between the genders, but also what results through the or¬
dering of our social institutions. The family interacts with,
shapes, and is shaped by those institutions, and its structure and
functioning affect abilities and capabilities in those other arenas.
Therefore, an appreciation of inequities in the family is essential
to understanding the justice of other institutional arrange¬
ments.
 ChapterEight

Recasting the Social Contract

I. The Metaphoric Social Contract:

Ordering the Public, Defining the Private

Chapter one, which sets out the concept of foundational myths,

referred to the foundational documents that inform American
political consciousness. The first few words of the Constitution
of the United States capture the idea of the social contract: that
the legitimacy of government is based on the consent of the
people. The renewed interest in social contract theory since the
1970s1 may have been generated by the public diversity of view¬
points and perspectives that began to emerge at that time, and
that challenged the very idea of “we the people.”
In the sprawling, secular, contemporary American context,
appeals to social cohesion based on religious principles or on
shared geographic boundaries are of limited usefulness. Volun¬
tary participation in societal institutions may generate identifi¬
cation with a group, but this, too, is-limited. A national identity
can be based on acceptance of a snared or common language,
 RECASTING THE SOCIAL CONTRACT 2ig

culture, or history, but in pluralistic and diverse societies, citizens

are often fragmented along exactly these lines.
The concept of foundational myths provides a way to begin
to understand how some lines of social cohesion are forged and
transmitted over time. One way to conceive of national commu¬
nity is through the establishment and transmission of myths or
fundamental principles that address the way society is ordered
and define the desirable traits of its citizens. Set out in mythic
terms and reiterated through the generations, these can also be
presented as coherent and binding principles—more than just
aspirational, they can be asserted as symbolizing the existence of
a social compact or contract that embodies consensus and com¬
munity among those who would otherwise remain strangers.
The social contract is a legal or theoretical fiction—a
metaphoric or symbolic idea that connotes a sense of connect¬
edness and unity in purpose and belief among members of a so¬
ciety. Such members are envisioned as being united by
agreement, in the same way that contracts between individuals
reflect binding relationships around agreed-to conditions.2 Con¬
tract is an appealing metaphor with which to consider social and
political arrangements. It imagines autonomous adults, capable
and equal individuals engaged in a process employing wit,
knowledge, and skill, rightly held to the terms they hash out in
the process.
In fact, in the modern context, the concept of contract is one
of the primary devices for understanding individual and institu¬
tional relationships. Contract is the term we apply to all sorts of
relationships, be they implied or formally established. Contract
is viewed as displacing older, less democratic ways of under¬
standing relationships, such as status and hierarchy, which im¬
pose structured relationships that are usually beyond individual
alteration. The underlying and essential elements in a contrac¬
tual relationship are [i] that two or more autonomous individu-
220 THE AUTONOMY MYTH
«

als with capacity [2] voluntarily agree (consent) to be bound by

[3] some mutually bargained for benefit or trade (exchange).
This process of exchange of agreement provides the basis for es¬
tablishing a contractual (reciprocal) legal relationship between
individuals.3
The actual reduction of agreements and understandings to
formal written contracts is the way that many private relation¬
ships are ordered in the realm of the market and related arenas.4
Formal contracts in business and commercial transactions are
typically the product of actual bargaining encounters and are
reduced to writing and signed, often in the presence of wit¬
nesses. By contrast, average people in their roles as consumers or
tenants routinely sign standard form contracts, which are some¬
times referred to as “contracts of adhesion.”5 These contracts
have terms that are set out by only one party and are imposed in
a take-it-or-leave-it manner. These sorts of contracts may be
regulated by the government or through legal doctrines that
make certain terms unenforceable in an effort to protect the
consumer from overreaching or gross unfairness.6 These excep¬
tions aside, even with standard form contracts the process is gen¬
erally thought to be appropriately outside of such supervision
and restriction. The ideas of individual autonomy and freedom
to contract mandate that people be jusdy held to the bargains
they have struck.7
The metaphor of contract in political theory operates on sev¬
eral levels. It may be used to talk about the imposition of coer¬
cive rules (law). In this regard, the social contract is articulated as
a justification for considering indiv*iduaj citizens to be bound by
established societal norms and conventions and for justifying
state sanctioning of deviations.8 Looking at lawmaking as an oc¬
casion during which we articulate specific terms of the social
contract should mean that this process places a heavy responsi¬
bility on the elected representatives of average citizens. They
 RECASTING T H £ S O C IAL CONTRACT 221
r

must ensure that their deliberations maintain integrity in regard

to the spirit of the overall social compact, as it is understood by
those whom it binds.
As a rhetorical and ideological construct, the social contract
functions like the foundational myths discussed in chapter one,
except that its terms are potentially coercive, rather than merely
inspirational. The idea that we as individuals are parties to the
social contract carries with it the threat that our breach of its
terms may end in the application of sanctions. The idea of a so¬
cial contract is the foundation for the application of law. As
such, it is one of the ways we might make sense of the existing
institutional arrangements in which rights and responsibilities
are generated and imposed in our society. In this way, the idea of
a social contract can be seen as an ordering mechanism whereby
our own and others’ actions may be judged. The perceived pro¬
visions of the social contract set up reciprocal and integrally re¬
lated expectations and aspirations for individuals, institutions,
and the state.
In utilizing the concept of contract as a tool to interrogate the
justice of existing social arrangements, I hope to call into ques¬
tion those principles that Professor James Boyle suggested sev¬
eral years ago are foundational to liberal state theory. Boyle
states, “[mjany flavors of liberal state theory hail it as definition-
ally true that abuses of public power are more to be feared than
abuses of private power, that rules constrain governments more
than standards and—perhaps most significantly of all—that
autonomy is more legitimately the concern of the state than
equality.”9

A. The Social Contract

Just as reference to contract in the private [public] market con¬
text carries with it the understanding that the agreement it em¬
bodies is fair because it was bargained for and agreed to by the
222 THE AUTONOMY MYTH

parties, a reference to the social contract is an implicit claim

about the justice of the set of expectations, obligations, rights,
and entitlements afforded an individual with regard to societal
arrangements.10 Of course, in considering the social contract,
we encounter an arrangement that is not the product of individ¬
ual bargaining or agreement. One is born into the social con¬
tract. Perhaps, for this reason alone, some social contractarian
scholars have argued that we must be more attentive to its fair¬
ness, with the state assuming a more active role in monitoring
the terms of the imposed social contract, as compared to bar-
gained-for, private contracts.11

B. Social Contract and Status Quo

As a rhetorical and ideological construct, the terms of the social
contract are up for contestation and struggle. Appeals to the so¬
cial contract can serve as a justification for a society’s current
structuring, legitimating and explaining existing relationships.
In this way, the concept of a social contract can bolster the status
quo. It may be a stabilizing device and can even be wielded to
justify unequal financial and power distributions produced by
market institutions. In fact, it is the idea of a social contract that
makes intelligible (and defensible) for some the fact that a mod¬
ern, egalitarian-oriented, democratic state can accept, even
condone, some degree and some forms of inequality.
The social contract varies across nations, even those with
common legal heritages or similar cultural attributes. Roland
Benabou, writing about unequal societies and the social con¬
tract, begins one article with the fdllowing statement:

Some [countries] have low tax rates, others a steeply progressive

fiscal system. Many countries have made the financing of educa¬
tion and health insurance the responsibility of the state; some, no-
tably the United States, have left them in large part to families,
 RECASTING THE* SOCIAL CONTRACT 223
r

local communities and employers. The extent of implicit redistri¬

bution through labor market policies or the mix of public goods

also shows persistent differences.12

In this article, Professor Benabou is attempting to analyze the

differences among countries with similar technologies and
equally democratic political systems. Of particular interest to
my objective of spreading responsibility for dependency to soci¬
etal institutions in addition to the family are the differences be¬
tween the United States and European countries. Benabou
observes that European voters “choose to sacrifice more em¬
ployment and growth to social insurance than their American
counterparts, even though both populations have the same basic
preferences.”13
Europeans simply believe that the social welfare of individual
citizens is a more public responsibility than do those in power in
the United States. We tend to turn to the private sector when
seeking solutions to problems in society. In fact, one of the pri¬
mary ordering mechanisms of the American social contract is
the creation of categories such as public and private, into which
social institutions, people, and problems are distributed, with
significant policy implications. In particular, the categories of
public and private structure the relationships between the state
and the market (the public category) and the state and the fam¬
ily (the private category).
This distribution is a political exercise. The family and the
market are inherendy neutral social institutions that can be con¬
sidered to be either private or public. The designation as private
carries with it a presumption that public supervision and control
is inappropriate. Within the social contract, a private societal
arrangement evidences a historically agreed-upon restraint on
governmental regulatory zeal. By contrast, there remains sub¬
stantial debate about the scope of appropriate governmental re-
224 THE AUTONOMY MYTH

straint on institutions designated as public. This is reflected in

the rather chameleonlike nature of market institutions, which
are characterized as public vis-a-vis the family, but private (and
beyond strict regulation) vis-a-vis the state.
One’s position on the issue of governmental restraint in regard
to public institutions can reflect an ideological predisposition on
a number of important policy and legal debates. For example,
economic libertarians and other “free market” proponents assert
social contractarian terms that would leave most things, aside
from military matters, to the “private sector”—to individuals act¬
ing in markets or within families or, if absolutely necessary, to
small units of government.14 Individuals thus freed from govern¬
mental restraints can work out mutually beneficial, particular¬
ized agreements among themselves within social institutions that
are considered private, distinguished, and protected from the
public sphere, as exemplified by the state or government.
In contrast, the terms of the social contract advocated by
those with a more social welfare—oriented perspective define a
more active role for public supervision and regulation. Someone
with a politically liberal perspective might suggest that families
and markets can also fail individuals and that existing disparities
in wealth and power may be unjust, warranting some corrective
measures by the government. Some perceived injustices must be
considered of a public nature, a concession that some situations
are beyond individual power to alter. Gross inequality and inat¬
tention to the “victims” of the free market are perceived to be
public concerns, justifying governmental intervention and regu¬
latory responses.15 This position, \Vhile more liberal in regard to
supervision, still concedes the fundamental distinction between
public and private.

C. Contract and Consent ;

We can view the social contract as a fictitious, symbolic idea em¬
bodying the notion that social arrangements are legitimated
through the norm of consent. Consent is through action (or in¬
action), indicating complicity with society in its present form.
Social contract theory assumes an individual’s actions, freely
undertaken, to mean acceptance of the current social organiza¬
tion, norms, and institutions. In this way, the social contract rep¬
resents an ideological or rhetorical map, defining the political
landscape upon which to place existing and emerging social re¬
lationships.
A different type of consent is central to the concept of private
contract. In private contract theory, one is legitimately bound
because one has agreed to be bound by the terms of the con¬
tract. Consent to terms usually is expressed, but may sometimes
be implied from one’s actions.16 Implied consent in the social
contract sense, however, is a more ephemeral concept and is re¬
lated to the social norm and expectation that autonomous indi¬
viduals assume responsibility for the consequences of their
freely taken actions. In the social contract setting, this idea has
been the basis for arguments for withholding aid from those in a
disadvantaged position, such as women on public assistance.17
Intentional indulgence in certain behavior results in pre¬
dictable consequences, so the unsympathetic social contractar¬
ian would say. Consent in this context is tied to the idea that a
person is getting what she or he “asked for”—our idea that there
is justice in having to “lie in the bed” that one has “made.” The
idea is that individual circumstances are the result of individual
choice, freely made, and that the consequences, even if negative,
are therefore justified. Like its private counterpart, this notion of
consent also implies that there is the option to not consent.
Within the rhetoric of public and private, contract and con¬
sent, existing institutional arrangements allow us to avoid gen¬
eral collective responsibility for inequity and to justify the
maintenance of the status quo by reference to an abstract notion
of individual “choice” or “personal responsibility” for the life
circumstances in which one finds oneself.18 In this way, we can
226 THE AUTONOMY MYTH
t

\ ...
often ignore the implications of the fact that individual choice
occurs within the constraints of social conditions (including ide¬
ological constraints) that funnel decisions into prescribed chan¬
nels and often operate in a practical and symbolic manner to
limit or virtually eliminate options.
As discussed in chapter two, the idea of consent is problem¬
atic in examinations of existing social oppression. Using notions
of individual choice or responsibility as justification for existing
conditions fails to recognize that quite often a choice carries
with it consequences not anticipated or imagined at the time of
the initial decision. For example, in assessing who should bear
the burdens or costs associated with dependency and child care,
we may believe (cultural, familial, and societal imperatives
aside) that a woman chose to become a mother, but does this
choice mean she has also consented to the societal conditions at¬
tendant to that role and the many ways in which that status will
negatively affect her economic prospects? Did she even realize
what those costs might be? Is it possible that the society and cul¬
ture might even have led her astray on the issue of costs, and
misled her about the returns and rewards of caretaking?
It is worth repeating that social conditions, particularly condi¬
tions of oppression, are of far more than individual concern.
They are of public concern in a society that has established
norms of justice, incorporating ideals of equality and inclusion.
These norms have been fashioned in ways that allow us (perhaps
even encourage us) to measure individual circumstances inde¬
pendent of the idea of consent, at least initially. In taking this
measure, individual situations cah inform a discussion about the
underlying fairness of the existing social contract.19 There are
instances in which we do not enforce private contracts, even
those to which the parties have consented, such as when they are
unconscionable, based on mistake, of impossible to perform.20
Of course, the traditional contractual requirement of con-
 RECASTING THE SOCIAL CONTRACT 227
r

sent is even more problematic in the context of an established

social contract. The very concept of a social contract assumes that
there is an agreement or arrangement that preexists and tran¬
scends the independent negotiations of any individual citizen.
Individual bargaining and specific consent are neither provided
for nor required. As discussed earlier, social contract theory le¬
gitimates compelling the individual to conform to certain exist¬
ing interactions, expectations, and relationships with societal
institutions. Consent by members of society to the social con¬
tract is predetermined—more accurately described as a conces¬
sion on their part, based on the idea that they gain a collective
good or benefits through such consent, and that societal consent
is necessary for justice, reciprocity, and abstract equality. Con¬
sent or concession is presumed by virtue of the advantages and
benefits conferred by the particular current organization of so¬
ciety.21
In our system, government has only limited authority to as¬
sess the underlying fairness of distribution systems developed in
the market (or in the family). The government is not generally
assigned remedial or protective tasks, such as promoting equal¬
ity or redistributing wealth in order to counter the excesses of
market institutions. The state is structured so as to be protective
of private as well as social contractual arrangements.
However, sometimes an argument must be made that existing
arrangements are unjust—so unjust that consent or ongoing
concurrence should no longer be assumed. The historic social
contract may be broken, or its conditions may have become im¬
possible to perform or enforce in view of changed circum¬
stances. Further, if given such change, and reconsideration is
warranted, the state is the only institution that has any arguable
mandate and capability to negotiate a reconsideration of the
basic terms of our historic societal understanding.
228 THE AUTONOMY MYTH

II. THE SOCIAL CONTRACT--

THE (MIS)USE OF THE PRIVATE FAMILY

As discussed in chapter two, in our political ideology, depend¬

ency is considered to be a private matter. It is the family, not the
state or the market, that assumes responsibility for both the
inevitable dependent—the child or other biologically or devel-
opmentally dependent person—and the derivative depen¬
dent—the caretaker. The institution of the family operates
structurally and ideologically to free markets from considering
or accommodating dependency. The state is cast as a default in¬
stitution, providing minimal, grudging, and stigmatized assis¬
tance should families fail. Ideally, each individual family is
responsible for its own members’ dependency, and to resort to
collective resources is considered failure and deserving of con¬
demnation. In fact, as is true with families on “welfare,” the fail¬
ure to adequately provide for its members can move a family
from the private to the public category, where it is, therefore, ap¬
propriately regulated and disciplined.22
This set of institutional arrangements reflects the restricted
nature of our social contract. These three institutions—family,
market, and state—are the foci of politics and the objects of de¬
bates over public policy. Unlike more voluntarily organized seg¬
ments of society, such as the religious, philanthropic, or
charitable communities, these core institutions and the rights
and responsibilities of individuals participating within them are
heavily defined and regulated by law. For these reasons, it is
compelling to consider them withip the reach and rhetoric of
social contract theory.

A. Contract in Context—Background Rules

A number of commentators, from the legal realists to the femi¬
nist theorists introduced in part Ihree, have argued that the pub-
 RECASTING THE S'OCIAL CONTRACT 22g
tr

lic/private dichotomy is a false one and that most things are both
public and private.23 Questioning the public/private compart-
mentalization to some extent also involves questioning the struc¬
ture of the debates associated with the idea of a social contract.
If everything is both public and private simultaneously, then the
labels will not resolve important questions concerning the cur¬
rent allocation of authority and responsibility among family,
market, and state.
Feminists are not the only ones to have deconstructed the
public/private divide. Others have made similar observations.
Even though the market may be posited as private in social con¬
tract debates, how it functions and what it produces are of pub¬
lic concern and can generate a lot of political attention. Market
institutions do not exist in a void—their actions have economic
and other implications for the society in which they are located.
Decisions about whether or not to provide “incentives” to busi¬
nesses seeking to relocate, for example, can be as provocative to
politicians and their electorate as decisions about who may
marry whom or what should be the economic ramifications of
single parenthood. Concern over certain practices, such as
sloppy safety measures in a workplace, can generate as much
will to regulate as can violations of an explicit criminal code.
Beyond the arguments based on public concern about the so¬
cial goods and services produced by private transactions, how¬
ever, is another realization about the nature of the market and
its transactions within society. Economists and others have
noted in the first instance that markets need law in order to func¬
tion—they require enforcement by the public sectors4 Private
agreements rely on legal (state) structures, as the following dis¬
cussion further details. Private contracting is ultimately a public
activity because those who would rely on contract must also rely
on law, courts, and police power as the default enforcement
mechanisms. It seems sound public policy to allow some public
230 THE AUTONOMY MYTH

«
ft
monitoring to determine which private arrangements (whether
in or outside the family) should be enforceable, entitled to legal
protection and recognition, and which should not. In fact, this is
why the law sometimes intervenes to regulate private contrac¬
tual bargains and imposes on contracting parties duties such as
that of good faith and fair dealing.25 Contracts are not always
enforced, and sometimes they are altered by practices, such as
custom, that are independent of the individual parties to the
contract.26
In addition, contract jurisprudence suggests there are always
“background conditions” to the practice of contracting.27 Often
these background conditions are the assumed existence of other
societal institutions, such as courts and law, which are clearly in
the public realm. Commentators have argued that the tradi¬
tional market paradigm, which views law as primarily a re¬
sponse to market failure, is wrong.28 To such writers, law is also
seen as a precondition to the very development of the market.
The existence of background rules—law—is necessary so that
actors can bargain and contract. This approach is distinct from
the typical law and economics analysis in that law is posited as
constitutive as well as reactive. From this perspective, law is
viewed as having a significant and positive role in creating and
sustaining the market. As a social and legal institution, the mar¬
ket does not exist independent of law. Even more fundamen¬
tally, the market relies on law, which is necessary in order for
markets to function. A system of background or default rules is
required in order that competitive and voluntary transactions—
contracting—can take place.29 ^
The notion of background conditions is simply the realiza¬
tion that all agreements are made in an historic context in which
certain preexisting structures and institutional arrangements are
assumed. Background conditions are essential to the process of
bargaining and contract. Established, predictable relationships
 RECASTING the Social contract 231
P

and rules facilitate the formation of new alignments since con¬

tracting parties are aware of what will happen should the agree¬
ment not work out. In other words, the parameters of any
covenant are as influenced by the external arrangements as they
are by specific terms set forth.
There are interesting and exciting questions presented by the
application of this idea of background rules to intimacy and the
family. If our focus is the family, one basic question we could ask
might be, if we perceive marriage (at least partly) as a contract,
are there background rules that facilitate the agreement to
marry? There has been some interesting work in applying the
concept of background rules to the marriage context. Professor
Jeremy Waldron, defending Kant’s conception of marriage as
contractual, uses the idea of “rights” in ways that resonate with
the idea of background rules.30 Waldron states:

[The] function of matrimonial law... is to provide a basis on

which ties of love can be converted into legal responsibilities in the

unhappy situation where affection can no longer be guaranteed.

. . . The structure of impersonal rules and rights not only provides

a background guarantee; it also furnishes a basis on which people

can initiate new relations with other people even from a position

of alienation. ...31

Waldron asserts “the importance of a structure of rights

that people can count on for organizing their lives, a structure
which stands somewhat apart from communal or affective at¬
tachments and which can be relied on to survive as a basis for ac¬
tion no matter what happens to those attachments.”32 This
example illustrates the significance of the concept of back¬
ground rules to individual decision making. Knowledge of and
reliance upon the integrity of background conditions facilitates
action.
 THE AUTONOMY MYTH
232
«
*

B. Background Conditions and the Social Contract

My concern with background conditions goes beyond specula¬
tion as to the structural assumptions underlying marriage. I am
interested in what is essential to the social contract. Even if it is a
metaphoric construct, and particularly if it is an ideological con¬
struct, the social contract is built upon background assumptions
and beliefs. What are the background conditions for the social
contract? Certainly they include the law (as do Waldron’s back¬
ground conditions to marriage). But what version of law in¬
forms the social contract and, additionally, what beyond law
shapes our understanding of it?
One would expect that a consideration of what constitutes es¬
sential background conditions to the social contract would pro¬
duce a rather limited number of factors. This is because
background conditions are those things that are so routine and
normal that they can truly be said to have faded into the societal
background—the necessity of their existence is not even ques¬
tioned—and in their ubiquitousness and normality they exist
outside of critical scrutiny. They are considered so foundational
and inevitable as to also be considered “natural” and organic in
nature.
Law partly operates in this manner—as background—be¬
cause we cannot imagine a society without law and legal institu¬
tions. It is not necessarily the substantive content of specific law
that we take for granted, but the existence of law as a structure
through which disputes are processed and general dominant ex¬
pectations and desires are enforced. Just as Waldron’s family in
operation reflects the dominarit family organization’s reliance
on and ordering by law, so too the operations of the workplace
and the polity need the dominant understandings of those social
relations embodied in law.
Among the essential background conditions to the social con¬
tract, therefore, are those institutions upon which it inevitably
 RECASTING THE S^O CI'A L CONTRACT 233
r

depends. Institutions, such as the family, structure, as they are

structured by, other relationships and expectations. And it is the
traditional marital family, with its gendered division of labor,
that constitutes the necessary and essential background condi¬
tion to the social contract in its present form. In the structuring
and ordering of all our institutions, we assume that the family
will function to absorb the costs of dependency
Making the family visible as a background condition may call
into question the idea that the social contract purely reflects re¬
lationships between autonomous individuals and the state. It
also reveals that other institutions are important mechanisms
whereby we achieve and maintain autonomy. The autonomy we
attach to individuals in social contract theory is as much a prod¬
uct of the caretaking that takes place within the family as it is of
individual action. It is that care taking that sees us through our
periods of dependency and (hopefully) provides us with the tools
we need to operate in other parts of the world.
In addition to the family, other primary societal institutions
form a background to the social contract. Certainly the market
is also structured by social arrangements, and as with the family,
we should think of the market as a necessary background condi¬
tion. Furthermore, the public or political terms of the social
contract reflect the expectations and norms of entidement that
individuals as citizens may legitimately assert vis-a-vis the state.
Correspondingly, the relationship between the individual and
market institutions is governed by customary norms associated
with the (unwritten) employment contract between workers and
workplace. The expectations of fiduciary responsibility and eth¬
ical dealing between market institutions and investors are re¬
flected in regulatory law, but also, in norms and customs of
professionalism and in general ideas about fairness and trust.33
The law, after all, is largely a written compendium of such soci¬
etal arrangements.
 THE AUTONOMY MYTH
234 «
%
C. Instability and Change
If we take this idea of background conditions and apply it to the
covenant we call the social contract in light of some of the
themes developed earlier in this book, we encounter some inter¬
esting theoretical questions. Paramount among them are the
questions associated with the process of societal change. How
does a change in the fundamental nature of an essential back¬
ground condition affect the contractual relationship that is built
upon it?
In considering the question of background conditions, it is
striking to realize how stable they are assumed to be. Perhaps
change was not a typical problem when the theory of back¬
ground conditions was devised, because the contracts to which it
was applied were individual in nature and were therefore rela¬
tively fleeting in duration. If change was a problem, doctrines
such as impossibility or frustration of purpose could fill in the
theoretical holes on a case-by-exceptional-case basis.34 When
thinking about background conditions and the social contract,
however, we deal with more enduring relationships and must
confront this issue of possible change. How should societal
change affect our assumptions about the legitimacy and fairness
of existing societal arrangements?
Specifically in regard to social contract and change in back¬
ground conditions, we must ask, how should we think about ex¬
isting long-term institutional expectations and aspirations for
the individual, the market, and the state when they are built
upon something as inherently unstable as today’s marital fam¬
ily? What happens to these socitetal*institutions when one of the
background institutions upon which they are premised is under
contest—when family arrangements are shifting and becoming
uncertain and unpredictable?35
In addition, when should societal change signify the end of
any pretensions to a societal consepsus and necessitate that ex-
 RECASTING THE SOCIAL CONTRACT 235

isting institutional arrangements be publicly and politically

renegotiated? If the existence of a certain type of family is a pre¬
requisite for the coherent development of our concepts of the
“public” market and state, what happens when we are forced to
concede that there have been widespread and not easily re¬
versible changes in the way we think about and practice family
in the United States?36
Changes in the family are visible and undeniable. The law
has responded to these changes on one level by altering the set of
expectations, obligations, and entidements governing the in¬
trafamily relationship between the spouses—by changing family
law.37 What we have not done, however, is to consider the re¬
quired restructuring of extrafamily relationships given the
changes within the family—the alteration of the state, the mar¬
ket, and the individual that must correspond to and comple¬
ment our “new” family. In this context, it is not the obligations
and rights of “husbands” and “wives” that need restatement,
but the relationships among the state, the market, the family,
and individuals who are now freed from their historic family ex¬
pectations and roles and are in the process of redefining new
patterns of intimate behavior.
What social expectations apply to the relationships among
the state, market, and man (outside his former category as “hus¬
band”) or woman (outside her former category as “wife”)? How
do we begin to decide what is the appropriate set of social rela¬
tions and expectations to address the child’s claim upon society
and its institutions for provision of the goods necessary to meet
her or his material, social, and emotional needs? If the family
that would have provided the historic answer to this latter ques¬
tion no longer exists, our old reliable background begins to
crumble. Further complicating this confrontation is the fact that
the family is not isolated in its changes. Transformations in the
family were provoked by (and further provoke) changes in other
 THE AUTONOMY MYTH
236 «
\
institutions.38 Therefore, our existing ideology about such mat¬
ters as the appropriateness of state intervention and regulatory
action must also be reconsidered, perhaps shifted, in the context
of change.

III. TAKING CHANGE INTO ACCOUNT! RETHINKING THE SOCIAL

CONTRACT

The questions raised in regard to the ideas of background con¬

ditions and change are significant in light of the fundamental al¬
terations over the past several decades to the basic societal
institutions of family and workplace.39 Both institutions have
been designated by the terms of our social contract to be impli¬
cated in the delivery of social goods to individuals. Families
“voluntarily” take care of us, provide for our needs throughout
our lifetimes and through our periods of dependency. Through
“custom,” “contract,” and “bargaining,” the workplace, in ad¬
dition to providing wages, supplies insurance against catastro¬
phe to those families through such programs as health care
coverage and pension plans.40 Ours is a system in which there
are no “rights” or claims to social goods that can be enforced by
citizens against the government.41
Over the past several decades, however, the family has
changed fundamentally, and furthermore the workplace is less
likely to deliver social goods to families. The historic premises of
the social contract have changed, and it would be unjust to con¬
sider these institutions, as they1 now exist, adequate to their his¬
torically assigned tasks. The argument that we must reconsider
the terms of the social contract is made stronger by the fact that
the state has participated in and facilitated these changes, par¬
ticularly in the family.42 *
Of course, not all changes are. good, and not all changes
 RECASTING THE £ OCTAL CONTRACT 237

should be accepted and facilitated in law or through policy.

Change should be judged based on whether it represents
progress for society, as measured by its fundamental aspirations.
Changes in the family that have resulted in more women’s join¬
ing the workplace and the decreasing influence of separate-
spheres ideology push us as a society toward equality and
inclusion. Women’s position in law is no longer inferior or for¬
mally burdened with family disadvantages, and this represents
progress.43 By contrast, many of the changes in the market have
operated in a manner that actually threatens inclusion and in¬
creases inequality. In addition, as is further explored in chapter
nine, these changes include an altered sense of employer re¬
sponsibility to employees and changed responses to increasing
disparities in income and wealth.

IV. SOCIAL CONTRACT IN ACTION

Occasionally, the idea of the social contract as it affects societal

relations is explicitly used in a political context. In such cases,
the argument is that a significant affirmation or alteration of ex¬
isting relationships is about to occur. In relatively recent history,
there has been a quasi-successful campaign to undo existing so¬
cial responsibility for poverty, replacing it with a different ver¬
sion of the relationship between the state and the
individual—one that does not involve “entitlement.”44 Republi¬
can members of the 104th Congress drew up a document called
“The Contract with America,” which began a retreat from sixty
years of policy guaranteeing a social safety net to poor families
with children.45 Despite its “feel good” rhetoric—it proposed
bills with titles such as the Fiscal Responsibility Act, the Personal
Responsibility Act, the Family Reinforcement Act, and the Job
Creation and Wage Enhancement Act—the “Contract” tar-
 THE AUTONOMY MYTH
238
«

geted and reduced or eliminated programs that were originally

designed to help low-income and single parents care for their
children.
The proposal was to deny to unmarried mothers under the
age of twenty-one Aid for Families with Dependent Children
(AFDC) benefits, food stamps, and public housing, and to re¬
quire all mothers to establish the paternity of their child before
they were eligible for benefits. Recipients of AFDC were to be
required to work thirty-five hours a week, yet the contract made
no provisions for care taking of their dependent children. Recip¬
ients who had an additional child while on the program would
not receive an increase in benefits, and the funding to nutrition
and food programs such as food stamps; the supplemental feed¬
ing program for women, infants, and children (WIC); and the
school lunch and breakfast programs was to be cut by eleven bil¬
lion dollars.46 Many of these proposals found their way into the
1996 Welfare Reform, though in an altered form.
The premise behind a theoretical social contract is that it is an
agreement among free and equal individuals to form a state for
their mutual benefit. However, the proposed “Contract with
America” did not seem to focus on the relationship between the
individual and the state as much as on the relationship between
the state and the family. The Contract made clear that the fam¬
ily was to provide for the dependency of its members. The Wel¬
fare Reform provisions would force young unmarried mothers
to reside with their parents or to marry the child’s biological fa¬
ther or another man willing to adopt the child, and would re¬
quire women to establish the paternity of their child before they
could receive any funds. In addition, the language of the act
specified that the work programs are being implemented “to re¬
duce the amount of time that families are on welfare” and that
“states must drop families from'the program after they have re¬
ceived a total of five years of AFDC benefits.”47 On the other
 RECASTING THE SOCIAL CONTRACT 239

hand, the part of the Contract with America that appears to ex¬
plicitly address and support families—the Family Reinforce¬
ment Act—actually contained very few programs at all, and
nothing about social programs that would address the health
and welfare of children, especially those in low-income fami¬
lies.48
By promoting the family as the solution to the problem of
poverty, the Republican Contract with America is a proposal to
move caretaking and dependency responsibilities back into the
private institution of the family. This proposed solution would
not increase the likelihood of successfully meeting caretaking
needs (how could a single mother work thirty-five hours a week
and care for her dependent preschool-age children?), but these
caretaking needs would be seen as a private problem, not a pub¬
lic one, and not one that the government would have to address.

V. CONCLUSION

I argue that we must look at the reality of the contemporary

family and consider the implications of its transformation from
the historic model. Additionally, we must look at changes in the
workplace and in the state, and explicidy reconsider our existing
institutional arrangements.49 If it seems clear that the contem¬
porary family can no longer be relied upon to fulfill historic ex¬
pectations in regard to dependency, then some responsibility
must be allocated to the market and state.
The concept of background conditions is particularly useful
to illustrate why we need to rethink old paradigms, set aside the
misleading discourses about personal versus public responsibil¬
ity, and cast a skeptical eye on current renditions of the social
myths of independence and self-sufficiency. Using the idea of
changed background conditions, it is possible to argue that it is
240 THE AUTONOMY MYTH
«
<*L

time to rewrite our social contract, to reconsider the viability

and equity of our existing social configurations and assump¬
tions.
Justice requires that we do so. The role assigned to the family
has significant implications for the roles within families. These
consequences are revealed as a family dissolves with death or di¬
vorce, or in cases in which the full complement of roles is not
filled. But the consequences are felt not only by an individual
family and its members. There are costs to the larger society
when things are structured in such a way that many families are
doomed to struggle and some to fail in their assigned societal
role.

*
 Chapter Nine

The Tentative Workplace

I. INTRODUCTION

Considering the transformations that have taken place in the

workplace strengthens arguments for rethinking the social con¬
tract given changes that have made the family a more tenuous
institution. Relationships within the workplace are now much
more tentative. However, there are important differences in the
nature and direction of the changes that have taken place within
the two foundational societal spaces of family and workplace.
Unlike what we see in the family, transformations in the work¬
place, for the most part, have not been in the direction of equal¬
ity. Nor has there been increased participation for workers in the
benefits and burdens of the institution.1 Workplace relationships
remain mired in status and hierarchy, and the workplace is an in¬
creasingly unstable terrain for the individual worker.
Like the marriage relationship, the employment relationship
often is cast in contractual terms, and the contracting parties are
seen as having equal control in the bargaining process. As with
242 THE AUTONOMY MYTH
«
!\
marriage, the state has the authority to intervene and impose
protective or other terms on the contracting parties. Historically,
however, the state has been much less likely to recognize that
there is a need for protective action in regard to the employment
situation. This reluctance seems inappropriate.
Even more than the power imbalance that benefits husbands
in the typical marriage, employers hold most of the power in the
typical employment relationship. As a result, the terms of that
contract are one-sided, and they subordinate the employee to the
dictates of a market that is a take-it-or-leave-it system, analogous
to contracts of adhesion that consumers face. Nor has the worker
been successful in stating a claim to the wealth accumulated by
the employer. By contrast, the property (capital) historically held
in the hands of husbands is now susceptible to claims that the
wife has made a contribution toward its accumulation that is
equal in value to the monetary contribution of the husband.
Laws governing the employment relationship have not even
begun to unsettle the historic premise that profit goes to the cap¬
italist, while the worker is left with whatever bargain she or he
can strike with regard to wages. The laws governing labor rela¬
tions certainly favor employers. Unlike their European counter¬
parts (and absent a strong union contract or civil service
protections), American workers at all levels are employed “at
will.” The employment-at-will doctrine gives an employer the
freedom to dismiss an employee without having to state a reason
for the action. This power was modified in the mid-twentieth
century by legislation that imposed some restraints on employ¬
ers, barring employers from firihg sqmeone based on factors
such as her or his race, gender, or religion.
This lopsided employment arrangement is argued to be con¬
tractual in nature, thus carrying with it the implication of equal
bargaining power because there is.a reciprocal right that accrues
to the employee. The employee is alsQ free to leave at will, and
 THE TENTATIVE WORKPLACE
r
243

the employer cannot stop her or him. But such freedom for the
individual employee is largely illusory, an abstract proposition
taken out of the context of power relations and economic ne¬
cessity that inform most employment relationships.
Employers can usually hire someone else easily. For the em¬
ployee, however, a new job may be hard to find, particularly if
the employee is older, less skilled, or trained for a specific set of
tasks for which there is not a robust employment market. In¬
creasingly, employers require truly specialized employees or
those with knowledge that might prove beneficial to a competi¬
tor to sign noncompetition contracts as a condition of employ¬
ment. These contracts further reduce the possibility of securing
new work, should the at-will employee decide to leave.
From the employers’ perspective legally, the employment-at-
will doctrine has generally meant there was never much security
for workers. Yet assumptions about employer responsibility to
employees (at least managerial and white-collar employees) and
the expectation that employment would secure some basic so¬
cial goods are widely perceived as having shifted in the past few
decades.2
A vision of progressive change in the workplace centered on
the individual worker is hard to articulate because there is no con¬
sensus about an idealized form of relationship to exemplify
equality between employee and employer. Such a vision was
supplied in the context of marriage by the idea of an equal part¬
nership between husband and wife, a metaphor that was trans¬
ferable in part because the relationship is between two
presumptively equal individuals. However, in the workplace we
deal with an individual, on the one hand, and quite often a large
entity or organization, on the other. Even with small businesses,
there is no accepted concept of parity and partnership between
employer and employee—the relationship is structured as inher¬
ently unequal.
 THE AUTONOMY MYTH
244
»

Given this, it is difficult to advance a concept of fair bargain¬

ing that does not entail workers’ banding together. But in part
because they lack proper legal supports, unions have suffered
declining membership. One way to establish a more equal social
arrangement would be to articulate a theory for more parity in
the workplace, in both union and nonunion contexts.
The low level of unionization in the United States leaves most
workers without basic equity protections. This would seem to in¬
dicate that more regulation is needed to force employers to pro¬
vide workers with basic protections. Even if the ultimate
objective cannot be “equality” in the partnership sense of that
term, we could work toward a more just and fair set of condi¬
tions governing the individual worker. At a minimum, these
conditions should include more job security, better wages, a safe
and comfortable working environment, and social benefits such
as insurance, thus more “sharing” for the employee in the fruits
that her or his labor produces.
In addition, and most significantiy for purposes of this book,
the basic terms of employment must also take into account
changes in the organization and functioning of the family. The
workplace must be made more responsive to the needs of work¬
ers as members of families, as people who are also responsible
for dependency work and who need accommodation as a result.
Unfortunately, the direction of the changes now under way in
the workplace will make things harder, not easier, for those who
are responsible for dependency within the family.

s
II. THE TENUOUS WORKPLACE

In February 1996, top managers of AT&T described their

process for deciding which 40,000 of the company’s 300,000
workers were to be cut, as well as the philosophy behind their
 THE T E N T A T I'V E' WORKPLACE
245
r

plan to reevaluate almost every job and worker in the company.

“The idea is that everybody has been asked to step out into a
parking lot,” explained a spokeswoman, offering an analogy for
the process described in the New York Times as “militaristic in its
attempt at precision.”3 The Times article cited a 150-page man¬
ual for structuring future meetings to be moderated by neutral
observers or “facilitators.” Managers were to decide who stays
and who goes, buffered by job counselors, psychological coun¬
selors, and an army of management consultants for the unlucky
employee.
What is interesting is that, rather than presenting its actions in
traditional terms, such as “layoffs” or “cost cutting,” AT&T
called them “a forced management program” aimed at reduc¬
ing an “imbalance of forces or skills.” Those workers who were
not invited back in from the parking lot were not perceived of as
fired; they were simply “unassigned.” James Meadows, one of
AT&T’s vice presidents for human resources, was quoted as say¬
ing: “People need to look at themselves as self-employed, as ven¬
dors who come to this company to sell their skills. ... In AT&T
we have to promote the whole concept of the work force being
contingent, though most of the contingent workers are inside
our walls [he should have said “not loitering in the parking lot”
to keep the metaphor consistent], . . . Jobs’ are being replaced
by ‘projects’ and ‘fields of work’ [giving rise to a society that is
increasingly] jobless, but not workless.”
This system replaced company policy that had virtually guar¬
anteed loyal workers a lifetime job. As the Times put it, “[histor¬
ically, AT&T has rivaled the Army as an employer that
welcomed minorities and people with only high-school educa¬
tions, offering training and retraining and the opportunity to
rise through the ranks over a lifetime career.” Other companies
with historically similar policies, such as IBM and Corning, have
undergone similar revisioning.
246 THE AUTONOMY MYTH

The suggestion that employees should think of themselves as

vendors who sell their skills for specific projects obscures what is
really going on. Under this system, companies such as AT&T
are freed from expectations that they will provide social benefits
to workers. The rhetoric of contract and self-employment im¬
plies that there is a mutually bargained for agreement between
two equals, creating the facade of autonomy. But this change in
the employment relationship has been imposed on employees,
many of whom suffer under its revised terms. Self-employed
vendors must now privately fund all the benefits that companies
such as AT&T historically provided, such as health insurance
and retirement savings programs.
People who are self-employed, including independent con¬
tractors, consultants, and freelancers, may try to compensate for
these increased expenses by charging significandy higher rates
per hour than are paid to employees. According to the Wall Street
Journal, people who are self-employed must charge at least 20
percent to 40 percent more per hour than employees who do the
same work because, in addition to salaries, they must account
for business expenses and for possible future periods without
work.
Even assuming that AT&T pays the additional hourly charge
for the contingent worker’s time, it is still cheaper for the com¬
pany to organize its work relationships this way. “This is because
hiring firms don’t have to pay half of [the self-employed
person’s] Social Security taxes, pay unemployment compensa¬
tion taxes, provide workers’ compensation coverage or em¬
ployee benefits like health insurance and sick leave.”4
Employees lose other benefits from their more tentative con¬
nection to the workplace. Legal scholar and labor historian
Katherine Stone describes corporate workforce organization
prior to the shift reflected in the AT&T tale as an “internal labor
markets” system:5
 THE TENTATIVE' WORKPLACE
247
P

In internal labor markets, jobs were arranged into hierarchical

ladders; each job provided the training for the job on the next
rung up. . . . Employers wanted employees to stay a long time, so
they gave them implicit promises of long-term employment and
of orderly and predictable patterns of promotion. . . . Our labor
and employment laws have been constructed on the basis of a
view of the employment relationship that saw the employment re¬
lationship as a long-term relationship between a firm and an em¬
ployee in which the employer gave the worker an implicit promise
of lifetime job security and opportunities for promotion along
clearly-defined job ladders.6

Although she doesn’t use the term social contract, Stone ex¬
plores the notion of a “psychological contract” in her work.7 She
applies the ideas developed in organizational behavior theory to
discuss the beliefs that an individual forms about reciprocal ex¬
change agreements. She distinguishes this notion of reciprocity
from the unilateral experience of expectation, hope, or aspira¬
tion. Stone casts the psychological contract as “a subjective con¬
cept, expressing an individual’s belief in the existence of a
bilateral relationship such that when expectations are not met,
the employee feels ‘wronged,’ deceived and betrayed with per¬
vasive implications for the relationship.”8
Stone goes on to describe how employers have dismantled
this structure in recent years, creating new, more uncertain land¬
scapes for the employee. She uses the term “precarious employ¬
ment,” rather than contingent employment, for this evolving
dismantling of the implicit contract between employer and em¬
ployee because it encompasses all who do not have a long-term
attachment to a firm: those hired as temporary workers, those
hired as provisional or short-term workers, and those who have
steady, full-time jobs, but no longer have an implicit or explicit
promise of job security.9
248 THE AUTONOMY MYTH
4

Employment relationships are shifting backwards, and while

the ultimate direction of change is not as clear as in the case of
families, some trends seem apparent. For example, a worker’s
expectation for employment security, earned through long and
loyal service, is now clearly illusory. Corporations favor down¬
sizing in the interests of stockholders and view labor as just
another expense of production to be manipulated and con¬
tained.10 Employers and capitalists articulate their social respon¬
sibility in terms that leave workers behind. Allegiance is to
stockholders, not employees. Various statistical summaries re¬
port that temporary employment status is rapidly becoming the
norm for many new entries into the workforce, as well as being
one of the few options for those terminated from more tradi¬
tional work situations.11
One way that employees react to such changes in the under¬
standing of their relationship to the workplace is by working
more, thus taking time away from other endeavors (like family).
Today the average American two-parent family needs to work
full-time in order to make ends meet.12 As pointed out in chapter
three, Americans surpass workers in every other industrialized
nation in time spent on the job.13 Increasingly, single parents are
working year-round (fifty weeks per year), at forty or more hours
a week.14 The typical workweek has increased, not only for
America’s middle class, but also for the working poor.
In a 1997 Families and Work Institute study that compared
1997 and 1977, respondents indicated their workload had grown.
In fact, 51 percent indicated they sometimes or often brought
work home. This was compared wkh 35 percent who reported
they did so in 1977. One out of four workers were reported to put
in 51 or more hours of work a week. The median workweek had
stretched to a bit more than 47 hours. Not surprisingly, a greater
number of workers than in 1977 felt their jobs were more de¬
manding and that work interfered with their free time and fam-
 THE T E N T A T^I VE' WORKPLACE 249
r

ily life. At the same time, the report found insecurity was on the
rise, with 29 percent saying they were fearful of losing their jobs
compared with only 15 percent in 1977.15
In addition to job insecurity, it is significant to note that over
the past thirty years, the minimum wage has not been adjusted
to keep up with inflation. As a result, a person working for mini¬
mum wage full-time will earn under Si 1,000 a year, which is al¬
most 40 percent below the national poverty level.16 In order to
provide for the basic needs of a family, these minimum-wage
workers are forced to work long hours, sometimes at several
jobs. Indeed, increased working hours take time away from chil¬
dren, who must be taken care of by others or stay at home alone
because their parents cannot afford child care.17
From a historic perspective, real wages for workers have de¬
clined, and the idea of a family wage has been replaced by the
reality of a dual-earner couple. In response to this situation and
the well-documented inability of a family to take care of its
basic needs even if it receives full-time minimum-wage pay, liv¬
ing wage campaigns have emerged in several states. A living
wage is defined as “the wage required to raise a family of four
above the official poverty line.”18 These campaigns urge local
legislatures to mandate that public employers, and those who
contract with the city or state, provide a living wage for their
workers. They argue that such efforts are essential to reduce
poverty and dependence on social programs. The campaigns
have been successful in thirty-two cities, and there are seventy
more campaigns active in the United States.19

m. WORK AND SOCIAL GOODS

One of the problems for temporary workers is the lack of social

welfare benefits associated with more enduring ties to employ-
250 THE AUTONOMY MYTH

ers, such as pension plans and hfealth or other forms of insur¬

ance. Even those with formally more traditional relationships
find their benefits dwindling as increasing numbers of employ¬
ers scale back on benefits.20 Attempts to limit existing packages
are now part of many collective bargaining negotiations.
In the American scheme of things, the workplace has tradi¬
tionally been the avenue through which significant social goods
were provided. Benefits such as health insurance, sick leave, and
retirement savings plans were assumed to be part of the
employer-employee implicit contract. Employers received tax
incentives to provide some benefits and were direcdy compelled
to offer others, such as Social Security and workmen’s compen¬
sation protection. This focus on the workplace and the family as
mediators stands in contrast to the delivery of social goods in
many European systems. In Sweden, for example, basic social
goods, such as insurance, are transferred direcdy from the state
to the citizen, independendy of either workforce participation
or family status.
Because we tie social goods to the workplace and family in
America, changes in “entitiement” status affect a large number
of individuals, well beyond the number of employees in any or¬
ganization. A company may cease to provide health insurance,
claiming that it is now too expensive a “perk.” If an employee is
the head of a household, this change may affect not only that in¬
dividual, but also her or his spouse (perhaps domestic partner)
and dependent children, who may have been covered by the
plan as well. Private health insurance is available, of course, but
it is prohibitively expensive for ma>ny families, particularly for
those with moderate incomes, since they can’t afford a private
plan and don’t qualify for public programs.
A study published in Health Affairs2' indicates that an increas¬
ing number of Americans are being offered health insurance
through their jobs. Even so, more and more workers, especially
 THE TENTATIVE- WORKPLACE 251
IT

those earning lower wages, are declining to take the benefit. In

the decade from 1987 to 1996, the percentage of all workers of¬
fered insurance grew to 75.4 percent, from 72.4 percent. However,
the percentage of workers holding insurance slipped to 60.4 per¬
cent, from 63.9 percent.22
Economists at the Agency for Health Care Policy and Re¬
search in the Department of Health and Human Services at¬
tributed workers’ reluctance to buy employer-based insurance
in part to their difficulty in paying their share of the premium.
The researchers noted that health insurance premiums “leaped
90 percent from 1987 to 1993,” while wages for all workers rose
only 28 percent and stagnated for the lowest-paid workers.23
Twenty years ago, workers merely signed up for insurance.
Employers who offered it typically paid the full cost. Today, a
worker contributes on average $1,596 a year for subsidized fam¬
ily coverage by a health maintenance organization or $396 to in¬
sure only her- or himself. For someone making $7 an hour, the
worker’s contribution to the family policy would be 11 percent of
the worker’s total wages.
In today’s employment environment, unless there is some
governing labor contract forged with unions, employers do not
consider themselves to be responsible for meeting their own
workers’ social welfare needs. Of course, they may do so, but it is
at their option. In recent years, employers have actively resisted
the imposition of broader social mandates as well. One such ex¬
ample is the Family Medical Leave Act (FMLA), a very limited
form of benefit to workers who have responsibility for the de¬
pendency of others. The FMLA mandates only that employers
allow their workers to take unpaid leave for caretaking of chil¬
dren and some other, limited situations.
2^2 THE AUTONOMY MYTH

%
rv. UNIONS, EQUITY, AND MARKET DISTRIBUTION

OF SOCIAL GOODS

While a discussion of labor unions is beyond the scope of this

book, they do require a brief mention, if only to note that there
may be some recent glimmer of hope provided by increased po¬
liticalization of some of these entities. Unions have historically
provided a way for workers to act collectively to enhance their
benefits vis-a-vis the employer. Unions make actual contracts,
demonstrating that the employee/employer relationship can be
one of “real,” as well as physiological or social, contract. Outside
of traditional collective bargaining agreements and some mini¬
mal governmental regulations, the historic workplace contract
remains mosdy an unwritten one, embodied largely in practices
that have evolved over time. Employers resist unions, and pardy
as a result, union membership has declined over the past few de¬
cades. In 2001, 13.5 percent of wage and salary workers were
union members, which is 20.1 percent less than the 1983 rate.24
The decline in union activity may have enabled employers to
redefine their responsibilities quiedy and rather painlessly.
When collective bargaining was in ascendancy, unions func¬
tioned to secure some social rights for some workers, moderat¬
ing the harshness of unfettered capitalism through collective
bargaining and contract. These rights not only benefited union
members, but also served as models for other workers and em¬
ployers, even if the specific contract terms did not direcdy regu¬
late those relationships.
Unions have always been under* attack by business and corpo¬
rate interests, but the attacks have increased in intensity and
been better received by politicians in recent decades. Member¬
ship declined during the Reagan years, after the air traffic con¬
trollers’ strike and the passage of legislation designed to weaken
unions in the name of individual workers’ rights.25
 THE T E N T A 1*1 V E' WORKPLACE 253
r

In recent years, unions have struggled to reshape themselves,

not only by reaching out to new groups of potential members,
but also by using political means. Forces like the Working Fami¬
lies Party indicate that union concern continues to be broader
than specific member contractual entitlements. Unions are fuel¬
ing, with their political support, initiatives that benefit society (or
workers) in general. A more universalized and class-based ap¬
proach to the provision of fundamental social goods has
emerged.26
Corresponding with this increased union activity are the
calls by some scholars and activists for new ways of thinking
about unionization and collective action. Arguing that the
changes in the workplace have revealed the importance of
unions in protecting individual workers, and that old forms are
ill equipped to deal with the new realities of the workplace, Pro¬
fessor Stone suggests: “As careers become boundaryless and
work becomes detached from a single employer, unions need to
become boundaryless as well. They need to develop strategies,
skills, and strengths that go beyond single contracts with single
employers. They need to move beyond the worksite-based col¬
lective bargaining and expand . . . upward into the political do¬
main and outward into the community.”27 In particular, she
notes the development of “citizens unions,” which are not work¬
place or skill-based entities, but ones anchored in geographic lo¬
cations. These groups pressure employers in their region to
provide appropriate benefits for all workers in that area. While
this type of organizing is in its infancy, perhaps the growing
strength of the living wage campaigns across various localities
demonstrates that this mode of organization could prove pro¬
ductive.
In a related effort, Professors Richard Freeman and Joel
Rogers made a proposal in The Nation recently to have “open-
source” unionization.28 This was a proposition designed to make
 THE AUTONOMY MYTH
254 «

unions more receptive to opening up membership to workers

who are currently excluded. Freeman and Rogers argue that
certain self-imposed limits on the meaning of membership must
be discarded, such as the current model in which workers be¬
come union members only when the unions gain majority sup¬
port at a particular workplace. Majority status is very hard to
attain because the laws favor employers in resisting unioniza¬
tion.
Open-source unionism would allow workers to become mem¬
bers of the union even without majority status, conferring on
them some of the significant benefits of that status, including
the protection of some labor laws. Such a plan would benefit
unions through increased membership and political influence.
Freeman and Rogers describe the possibilities in utopian terms,
as dovetailing with the interests of those concerned generally
with social justice:

[Open-source unions] would engage a range of workers in differ¬

ent states of organization rather than discrete majorities of work¬

ers in collective-bargaining agreements. There would be

traditional employer-specific unions, but there would likely be

more cross-employer professional sorts of union formations and

more geographically defined ones. Within any of these bound¬

aries, the goal of [the unions] would not be collective bargaining

per se but broader worker influence over the terms and conditions

of work and working life. Because [these] unions would typically

have less clout inside firms or with particular employers, they

would probably be more concerned than traditional unionism

with the political and policy environment surrounding their em¬

ployers and employment settings. They would be more open to al¬

liance with nonlabor forces—community forces of various kinds,

constituencies organized around’ interests not yet expressed

through work or even class (here think .environmental, feminist,

 THE TENTATIVE WORKPLACE 255
r

diversity or work/family concerns) that might support them in

this work. As a result, labor as a whole would likely have a more

pronounced “social” face with [open-source unions] than it has

today.29

Organizations such as unions that have traditionally fought for

higher wages and better working conditions are needed. It is un¬
fortunate that they are no longer as powerful as they were sev¬
eral decades ago.30

V. WEALTH AND ENTITLEMENT

Prior to the early 1970s, the United States was becoming pro¬
gressively more egalitarian.31 Since that time, however, the re¬
verse has been true—by 1982, income inequality had reverted to
its 1947 level, and it has increased further ever since then.32 In
1968, the household at the ninety-fifth percentile had six times
the income of the household at the twentieth percentile, while in
1994, the difference jumped to 8.2 times the income.33 Between
1977 and 1999, the lowest twentieth percentile of American
households dropped 12 percent in average income, and by 1999
the top twentieth percentile was earning half of all the income
in the United States.34

A. Income Inequality and Family

According to the 2000 census data, although the average family
income rose 9.5 percent between 1989 and 1999, about 9.2 per¬
cent (or 6.6 million American families) qualified as poor in
1999.35 In nine states, with New York at the top of the list, the
richest 20 percent of households now earn at least eleven times
the income of the poorest 20 percent.36
There are many reasons that contribute to this increase in in-
256 THE AUTONOMY MYTH
«

equality. Of particular interest are those associated with busi¬

ness practices and those resulting from state and national gov¬
ernmental policies. In regard to market institutions, factors
contributing to inequality that are commonly mentioned in¬
clude globalization of trade, the decline of trade unions, the
drop in well-paying manufacturing jobs, and the growing earn¬
ings advantage of better-educated workers.37
In addition to increased income inequality, we have seen a
general wages decrease since 1973. In his book The State of Amer¬
icans,38 Urie Brofenbrenner reports that between 1973 and 1994,
weekly wages decreased 18.8 percent, and hourly wages de¬
creased 13.5 percent.39 Family income has been falling slowly
since the 1970s; between 1973 and 1992, a family’s inflation-
adjusted median income decreased by 1.5 percent overall.40
Education and change in the nature of jobs can partially ex¬
plain the high income disparity.41 In 1979, the average college
graduate earned 38 percent more than the average high school
graduate.42 In 1999, the average college graduate earned 71 per¬
cent more than the average high school graduate, a significant
increase.43 Even in industries in which there is growth, such as
high tech, there are very few or no opportunities for the low-
skilled factory worker who is increasingly sliding toward
poverty.44 Yet a college education is not guaranteed to all who
could benefit in America because education, even in state
schools, comes with high tuitions. Education is a privately sup¬
plied good in our scheme of things and is therefore less accessi¬
ble than in other postindustrial countries.
Of particular concern, of course, are the children; in recent
years, about one in five American children (12 to 14 million) have
lived in families with income below the poverty line.45 The
United States is the only Western industrialized nation that does
not have some form of universal cash benefit for families raising
children.46 In addition, child poverty rates are higher in the
 THE TENTATIVE WORKPLACE 257
r

United States than in sixteen other industrialized countries.47

Poverty has both short- and long-term consequences for chil¬
dren. Evidence supports the conclusion that family income can
substantially influence child and adolescent well-being, specifi¬
cally physical health, cognitive ability, school achievement, emo¬
tional and behavioral outcomes, and teenage out-of-wedlock
childbearing.48
Even in families well above the poverty line, falling economic
fortunes create a scramble to stay ahead. “Middle-income” fam¬
ilies have experienced stagnant wages for about a decade, their
incomes even losing ground due to inflation.49 Furthermore,
these middle-income families are working harder today than
they were in 1979.50 According to the Census Bureau, only 28
percent of the nation’s middle-income families have one bread¬
winner, and this is usually because there is only one parent in the
family.51 Today’s complicated lifestyle and society make essen¬
tials out of yesterday’s luxuries (a car, a television, etc.), demand¬
ing income that may have been unnecessary in previous
decades.52 The standards of richer members of society also in¬
fluence the consumer culture of the lower classes.53
Certainly wage and job instability produces stress, encour¬
ages longer hours, and pushes more family members into the
workplace. In this regard, it is interesting that although families
are entering poverty at increasing rates, more married women
with young children are entering the labor force.54 In 1970, 30
percent of married women with young children were in the
labor force.55 In 1987, the rate was 57 percent, and that number
has continued to increase.56

B. The Truly Wealthy

Underscoring concern for the plight of the individual worker is
the perception that the rules of the game have changed in
America. Wealth distribution has become more skewed because
2^8 THE AUTONOMY MYTH

of changes in capitalist structures and attitudes.57 When one

considers the disparity between the prospects and fortunes of
the very wealthy and the rest of us in American society, it seems
there are no longer any moderating influences to temper a run¬
away sense of individualism and entitlement.
At the same time that wage workers and others who have pre¬
viously considered themselves comfortably and securely middle
class find that their opportunities to amass a fortune are declin¬
ing due to job insecurity and wage stagnation, corporate officers
and entrepreneurs are making huge fortunes.38 As one report
described: “In 1999, for the first time in the years [the Center on
Budget and Policy Priorities] has examined, the top fifth of the
population is expected to receive slightly more after-tax income
than the rest of the population combined.” Even more telling,
the same year “the richest one percent of the population [was]
projected to receive as much after-tax income as the bottom 38
percent combined.”59 Even companies that are losing money
and making their employees make pay or hours sacrifices are
seeing an increase in the salaries awarded their chief executive
officers.60 In “Higher Education: The Ultimate Winner-Take-
All Market,” Robert Frank reports that “[a]s recently as 1980,
an average CEO of a large American company earned 42 times
the earnings of the average worker; twenty years later, in 2000,
the same CEOs earned 419 times an average worker’s pay.”61
By comparing our situation with those of other countries, we
see how inappropriate it is. The differentiation between worker
and manager pay is greater in the United States than in any
other industrialized democracy^ In part this may be because Eu¬
ropean countries have stronger labor union movements and
more welfare benefits that have moderated the growth of in¬
equality.62 There also seems to be a real difference in the ways
that nations consider societal responsibility to children.63 Bar¬
bara Ehrenreich, author of Nickel and Dimed: On (Not) Getting By in
 THE TENTATI vA WORKPLACE 259
r

America, argues that “[m]ost civilized nations compensate for the

inadequacy of wages by providing relatively generous public
services such as health insurance, free or subsidized child care,
subsidized housing and effective public transportation.”64
Increasing income disparity between the well-being of the
richest and the poorest in America, as well as a corresponding
decline in the fortunes of the middle class, occurs side-by-side
with arguments by governmental policymakers and business
leaders for increasing the influence of the market as the order¬
ing mechanism for the distribution of wealth and social goods.
Our new vision is of a minimalist government, even considering
things such as old-age security. This vision is to be accomplished
through the privatization of functions previously performed by
government and the devolution of necessary government tasks
to the smallest units of government.65

VI. RIGHT TO WORK/EQUALITY OF OPPORTUNITY

A. Corporate Responsibility
Wage stagnation and the degree of income inequality that
America now experiences violate the spirit of any social con¬
tract designed to govern the expectations and relationships in a
society that values equality and democracy. This type of in¬
equality demands governmental intervention and some reme¬
dial measures directed toward leveling the playing field.
According to Anne Phillips, professor of gender theory at the
London School of Economics and Political Science, true equal¬
ity is achieved not through an equal share of income and
wealth, but through opportunities provided. She claims in re¬
gard to persons bound in situations in which they cannot help
themselves that the state does not have a responsibility to give to
them what they lack, but “[t]he state has a responsibility to en-
260 THE AUTONOMY MYTH
«
<x
sure that opportunities for self-advancement are made equally
available to every citizen, an obvious responsibility in the fields
of education and training, with perhaps some additional re¬
sponsibilities to assist lone parents back into the labour market,
or to make the feckless take out insurance policies to protect
them from future disaster.”66 It is the role of the government to
step in and regulate the market to make sure it is functioning
fairly to the best interest of society.
To that end, I argue in chapter ten for a “responsive state” and
for a “right to work.” This concept has many dimensions, includ¬
ing the idea that the state and the market have an obligation to
structure things so as to accommodate workers who also have
family responsibilities. There are other, far-reaching responsibil¬
ities the state should shoulder in regard to the workplace.
It is also important, however, that we as individuals change
the way we think about our own relationship with work and with
our coworkers and fellow citizens. Within the workplace, we are
isolated from others, encouraged to believe that provisions to
one group means sacrifice by another.67 From the perspective of
the arguments I have been making in this book, it may be that
those without care responsibilities fear that they will be required
to bear the burdens in the workplace if there is some accommo¬
dation for workers who have responsibilities for caretaking.
But it seems to me that this is the wrong focus. We should in¬
stead be questioning a set of employment relationships in which
it can be considered just or fair for employers confronted with a
demand that they accommodate one group of workers to
merely shift the burdens and cbsts associated with that accom¬
modation to another group of workers. In the case of accom¬
modation for caretakers, employers should not be permitted to
evade their responsibility for some of the costs of dependency,
even if it means some reduction- in profits or diminished returns
on capital.
 THE TENTATIVE* WORKPLACE 261
r

Further, in regard to structuring the workplace differendy, we

must accept that even if we are unencumbered today, we do not
know what the future holds. We may become caretakers our¬
selves. In this regard, even if we view having children as a
choice, all of us had parents (no choice about that) and many of
these parents may become dependent on us as they age.68 Fur¬
ther, since we ourselves might become ill or disabled in the fu¬
ture, we have an interest in securing conditions under which our
prospective caretakers can both work and fulfill their responsi¬
bility to us.
For those more inclined toward a short-term perspective,
there is an additional argument that can be made for regulation
of the workplace so as to facilitate caretaking. Caretaking is not
something we only do for others. It is also socially productive
labor when it provides for our own nonmaterial needs. Beyond
our responsibilities as caretakers, citizens, and workers, we have
responsibilities to ourselves—to regenerate our energies and re¬
sources; to participate in the artistic, nonmaterial, spiritual, or
other inner-directed aspects of life upon which we are all depen¬
dent for our individual well-being. Society and its institutions
must facilitate this type of caretaking also, structuring work so
that the rest of life is not forfeited. The scripts of our lives must
revolve around more than just work and must not leave the more
emotional and spirit-regenerative aspects lying on the cutting
room floor.

B. Beyond Caretaking
To take the need for regulating the workplace even further, it is
also possible to expand ideas about the social contract and the
existence of social debt developed in this book well beyond care¬
taking labor (for others or for self). We could consider the situa¬
tion of the worker in general, the conditions of work, and the
structure of compensation.69 The idea of an egalitarian social
262 THE AUTONOMY MYTH
«
ft
contract can be the metaphor to bring nonmarket values, such
as norms of distributive justice and worker security, to bear on
our society as we confront the implications of change.
These norms are part of the scheme of expectations in other
industrialized democracies and can be implemented in ours
through a regulatory scheme of laws structuring the responsibil¬
ities of our workplaces. Particularly in the market context, we
need to be reminded that corporations, as abstract legal entities,
and those who run, direct, and profit from them cannot function
without the labor of others. Secretaries and truck drivers are
as essential to commerce as are highly paid CEOs and stock¬
holders.
The arguments made about exploitation in regard to caretak¬
ing are applicable to the situation of all those whose labor is un¬
dervalued but essential in providing for the needs, growth, and
maintenance of society and its institutions. My arguments based
on the need for recognition of caretaking can evolve into a gen¬
eral critique of our version of the ideology of free-market capi¬
talism and a claim for universal provision of basic social goods.
One’s positive contributions to society can thus be valued in a
public and egalitarian fashion based on nonmarket values. After
all, we are all in this together, and this realization should guide
the direction of our discourse about dependency and societal
responsibility, as well as actual public policy.

\
 Chapter Ten

The Tenable State

I. STRUCTURING STATE AND SOCIETY

This chapter more fully explores the implications of the concept

of collective responsibility for dependency that was introduced
in chapter two—the chapter on inevitable and derivative de¬
pendency. In that chapter I asserted that dependency is univer¬
sal and inevitable—the experience of everyone in society and,
for that reason, of collective concern, requiring collective re¬
sponse. However, the essential and society-preserving work in¬
evitable dependency demands has been channeled by society in
such a way as to make only some of its members bear the burdens
of this work. As a result, I argue that there is a societal debt owed
to caretakers. This debt is a collective one, owed by the whole of
society and its members. The existence of this debt must be rec¬
ognized, and payment accomplished, through policies and laws
that provide both some economic compensation and structural
accommodation to caretakers.
The state must act for the collective in this regard. In fact, the
 THE AUTONOMY MYTH
264
«

state is the only societal entity that can act for all. It is the only or¬
ganization in which membership is mandatory and universal
(we are all subject to the authority of the state). It is also uniquely
and expressly constituted to define the collective rights and re¬
sponsibilities of its members. Therefore, fulfilling the obligation
to caretakers requires a state that assumes an independent and
active regulatory role.
This obligation to caretakers can be perceived as one compo¬
nent of a more general state obligation to promote and ensure
the conditions of equality, wherein all individuals have an oppor¬
tunity to achieve security and exercise agency. The state has a re¬
sponsibility to mediate the structural inequality built into our
“free” market system. In regard to caretakers, the inequality is
found in the first instance among societal institutions the fam¬
ily assumes a disproportionate share of responsibility for care¬
taking and dependency. In the second instance, there lesults an
inequality among family members as responsibility within the
family is delegated to some individuals, depriving them of op¬
tions and opportunities available to less fettered family members.

II. IDEOLOGY AND POLITICS

While it may seem obvious that the national government and its
institutions are the only mechanisms with the capability to uni¬
formly regulate the excesses of society, particularly the market,
this realization does not alone generate the political will neces¬
sary for such regulation. Partly this is because of the corruption
visible in the existing system. Our current political climate
means that programs and policies that disturb vested interests
are stifled at inception or ridiculed if some politician is brave
enough to raise them. This situation is not too surprising given
the centrality of money to individual and party political success.
 THE T E N A B^L E STATE 265
r

Those now in charge of the state seem determined to further

limit governmental oversight. Taxation and regulation are often
viewed as burdens to be eliminated, not as tools with which to
accomplish social and economic justice. Focusing only on recent
political history is discouraging for those seeking progressive
social-policy changes.

A. The Fabrication of a “Contract with America”

Chapter eight briefly discussed the 1994 conservative Republi¬
can Congress’s “Contract with America” as an example of a po¬
litically motivated maneuver using the rhetoric and imagery of
social contractarian theory. The document labeled a “contract”
was not the product of negotiations but the result of unilateral
and partisan efforts to change the perceived direction of the
country. Its terms were little discussed during the election that
put its proponents into power. However, that election was later
asserted to be a mandate—the basis of the Contract’s legiti¬
macy.
The heart and soul of the Contract with America were the
ideals of privatization and the mantra of individual responsibil¬
ity. These ideals were reflected in policies that retreated from the
more collective ideal of the 1970s and 1980s, manifested in leg¬
islative programs such as the “War on Poverty” and the various
provisions enacted at the behest of civil- and political-rights
movements. Successful politicians of that earlier era urged mea¬
sures designed to ensure greater equality, and trusted the ac¬
complishment of this objective to the federal government’s
oversight.
The revisionists behind the Contract with America specifi¬
cally went after the poor. The tenets of this so-called “contract”
included a “Personal Responsibility Act,” which sought to “dis¬
courage illegitimacy and teen pregnancy by prohibiting welfare
to minor mothers and denying increased [Aid to Families with
 THE AUTONOMY MYTH
266
«

Dependent Children payments] for [those who had] additional

children while on welfare, cut spending for welfare programs,
and enact a tough two-years-and-out provision with work re¬
quirements to promote individual responsibility.”1 Such provi¬
sions directly aimed to roll back the progressive reforms
regarding welfare and child care support of the 1970s and 1980s.
Other provisions also focused on responsibility. The “Fiscal
Responsibility Act” sought to rein in governmental spending.
The “Family Reinforcement Act” proposed child-support en¬
forcement. The rationale was to “reinforce the central role of
families in American society” but the objective was to get indi¬
vidual parents, rather than the state, to pay for their children.
Rather than reinforcing the families with the economic assistance
many so desperately needed, the strategy of the Contract was to
pillage and burn the six-decade-old federal entidement system
that provided assistance to needy families with children.
The model of minimal governmental assistance to the poor
expounded in the Contract with America positions the national
government as a backdrop to other societal institutions, specifi¬
cally the marital family. The government is also seen as a facili¬
tator of the market and a protector of its private arrangements.
Adherents to this philosophy argue that even on a local level,
governmental services, such as education, or functions, such
as prisons, are more appropriately assigned to the private
sphere.
Even though many of its specific provisions, aside from wel¬
fare reform, were not enacted into law, the rhetorical and con¬
ceptual strategy of the Contract, has been very successfully
integrated into political rhetoric and formal policy. Shifts in ex¬
pectations for and attitudes toward the federal government have
been accomplished. Cries for minimal government heralded the
Contract’s inception and its adherents’ political approach to is¬
sues of national concern. These cries now overwhelm and seem-
ingly have foreclosed the kind of vigorous debate that should at¬
tend any significant social transformation.
What is disturbing about the politics associated with the Con¬
tract with America is the orchestrated political rhetoric that dis¬
torts and oversimplifies social problems and solutions, drawing
lines between people and groups by casting only some as worthy.
It may be more accurate to read the Contract with America as
the surreptitious repealing of earlier understandings of govern¬
mental and social responsibility, not a newly negotiated set of
social-contract provisions. The Republican Contract is clearly
premised on ideology rather than being a response to empirical
realities. It does not reflect any vigorous public discourse about
future direction and aspiration.
There is also an important question for politicians to ponder:
in a political system in which only a minority of eligible citizens
vote, some of them un- or misinformed, should election results
be used to legitimate major shifts in policy direction without
thorough and focused further debate in a nonpoliticized con¬
text?2 Government has not provided the structures or fostered
the ethical and political culture to promote a balanced exchange
of information, debate, and deliberation, giving all segments of
society inclusion. As a result, our politics do not reflect the diver¬
sity of our pluralistic society.

B. Economics Are Us: The “Democratization” of Supply and Demand

Complementing the Contract with America (and perhaps lay¬
ing an essential foundation for it) was the ascendancy of eco¬
nomic principles as the preferred method of assessing social
policy. President Ronald Reagan introduced a philosophy of
supply-side economics, which posits that the well-being of the
capitalist class will ultimately provide for the rest of society.
Termed “trickle-down” economics, this idea was shown by
many economists to be an unwise illusion.3 Similar policies of
268 THE AUTONOMY MYTH
1
ft
supply-side economics have been recently resurrected with a
vengeance by President George W. Bush’s administration in the
form of massive tax cuts for the wealthiest Americans. Bush
seems to have forgotten his father’s label for such attempted ma¬
nipulations when he was competing with Ronald Reagan for the
Republican nomination: “voodoo economics.”4
The focus on the wealthy as the road to prosperity for all be¬
came entrenched in popular culture during the 1990s. In that
decade a focus on market well-being supplanted more inclusive
and nuanced public assessments about the state of our nation.
This economic-sphere focus is best captured in one of the ways
in which the pulse of the nation is currently measured. Today
the Dow Jones average is reported daily (sometimes hourly),
even on public radio, as though this specific measure accurately
reflects our country’s general health and wealth. In this way, an
economic indicator is substituted for other forms of evaluation
of national standing, such as the equitableness of wealth distri¬
bution or the well-being of our most vulnerable citizens. How
would we assess our nation’s well-being if what was reported on
a daily basis instead were the increases or declines in the number
of children or elderly having health insurance coverage, or the
fluctuations in the number of Americans living in poverty, per¬
haps going to bed hungry at night?
During the boom of the 1990s we seemed blinded in a reverie
of self-satisfaction, even as the position of our children and his¬
torically disadvantaged subgroups deteriorated, both in terms of
where they were a few decades earlier and relative to the posi¬
tion of comparable groups in otlier industrialized democracies.
Tellingly, the obsession with market indicators has not been dis¬
placed now that the economy is less robust.
Today it seems as though the function and role of the state
have been merged with those of the market. A goal of govern¬
mental policy is still to address market confidence, as though the
 THE TENABLE STATE 269
r

market and not the government could be the primary guarantor

of general citizen well-being. Progressive politicians seem to buy
into this fallacy as much as their conservative counterparts do.
There is some effort to defend public programs such as educa¬
tion, but the basic tenets of a privatized and individualized phi¬
losophy seem to be driving policy on all political sides. Missing
from mainstream political and public discourse is any strong
support for the state to act as a vigorous mediator of market ex¬
cesses and active guarantor of a more equitable allocation of
wealth.

III. POSING THE PHILOSOPHY FOR AN ACTIVE STATE

A. Relating State and Market

While it would seem obvious to most citizens of other Western
countries that the state would be implicated in any discussion
of possible solutions to the problem of inequality in society,
many progressive Americans are almost as suspicious of govern¬
mental action as their conservative counterparts. Perhaps this is
why the political will to expand the states’ regulatory responsi¬
bilities has lagged over the past decades, even as recognition of
persistent inequality has grown and notions about justice have
evolved.
The state is held in much more suspicion in the United States
than in other Western democracies, and arguments about trans¬
forming its role to be more active are bound to be subjected to
scrutiny and skepticism. Contemporary legal and policy discus¬
sions (which are part of the process whereby a state can be
altered) are overwhelmingly concerned with limiting and re¬
stricting the state, particularly with regard to the economic areas
of policy-making. Those who reject the idea that the govern
ment has a basic and explicit role in monitoring and mediating
270 THE AUTONOMY MYTH
«

change vigorously resist a more regulatory response to market

developments. With regard to the market, increasingly the state
is either cast in the role of cheerleader or urged to facilitate, not
regulate, economic arenas.5
In the United States such arguments have culminated in a
philosophy espoused widely from center to right of the political
spectrum—by business leaders, politicians, and policymakers
who urge an increase in the sphere of influence and power of
the market, and a weakening of the power of the federal gov¬
ernment. Their shared vision is of a minimalist national sphere,
ideally accomplished through the privatization of functions pre¬
viously performed by the government. When government is
necessary, the ideal route is through the devolution of responsi¬
bility to the smallest, most local units.
This desired withdrawal of the national level of regulation
and responsibility is urged even though the history of the United
States shows that local rule on some issues cannot be effective
and sometimes results in discrimination and concession to local
passion and prejudice. It is urged even though it is clear that it
has always been a struggle to get businesses to accept progressive
labor practices. It is urged even though the market has shirked
responsibility for the provision of social goods, such as health in¬
surance, family and medical leave, day care, and a minimum
family wage unless “encouraged” to do so by the state.
To abandon progressive aspirations for the state given this
history of failure of the market to make progressive adjustments
without coercion is to abandon all hope for progressive change.
The national government is the Unly, organization with the po¬
tential to impose such measures. At a minimum, the state must
strive to eliminate major disparities that result from unequal so¬
cial relations. This book has been concerned with remedying
one obvious point of economic exploitation—that of those in
our society who make the essential yet unrecognized contribu-
 THE TENABLE STATE 271
tr

tion of caretaking. A strong and vital state is necessary to even

begin to undertake, let alone accomplish, that task.
Instead of fighting for the shrinking and weakening of a na¬
tional government, progressives should be focusing on articulat¬
ing appropriate objectives for the state to pursue. Defining the
norms and aspirations that should replace the impoverished
concepts provided by economics would be the place to start.
There must be a change in the discourse of politics, with a new
paradigm to guide state policy replacing that of the free market,
in which there is no cohective responsibility but only an exag¬
gerated sense of individual autonomy.

B. Concepts and Meaning—

The Connection Between Autonomy and Equality
A notion of cohective responsibility for dependency has to begin
with the creation of an alternative paradigm of state regulation
and responsibility. This is necessary in order to counter the non-
regulatory philosophy of the current manifestation of Ameri¬
can free-market capitalism.
This paradigm would present an alternative to that which
now drives our politics, because it would explicidy build upon
the premise that there is a fundamental connection between au¬
tonomy—an individual’s ability to make choices in her or his
life—anci equality, which demands that the state exercise some
responsibility to ensure that each individual has the necessary
basic resources to allow choices to be made and to be meaning¬
ful. In this paradigm the state is not a default (therefore stigma¬
tized) port of last resort, but an active partner with the
individual in realizing her or his capabilities and capacities to
the fullest extent. In this vision, the equal opportunity guaran¬
teed by the state would also be an individualized one, in that it
would bear some relationship to a person’s situation and reflect
her or his circumstances.
272 THE AUTONOMY MYTH

As discussed in chapter one, both autonomy and equality are

accepted as core values and essential components in our Ameri¬
can foundational myths. Both remain potent verbal mainstays in
contemporary political discourse. Yet certain interpretations of
the meanings of these two ideals can place them in tension
even in conflict—with one another. If the state obligation with
regard to equality is processed and shaped by an ideological sys¬
tem in which autonomy is primary and also understood as the
right to be free of governmental intrusion and regulation, then it
can mean little more than state neutrality. In this scheme, absent
discrimination or some other distortions of the market, any reg¬
ulatory action by the state trying to confer more than neutral
process in order to help some individuals is susceptible to being
interpreted as an intrusion on the autonomy of others. This is so
regardless of how desperate or (therefore) unequal the circum¬
stances of those the state sought to assist or how privileged and
(therefore) unequal the position of those who seek to shield
themselves in autonomy’s mande.
As discussed in the first section of this book, autonomy is
often presented as a state of being that is attainable by all. It is
also perceived as an individually (and autonomously) developed
characteristic that ultimately reflects the worth (or lack thereof)
of the person. In this simplistic version of autonomy, the reali¬
ties of inevitable and derivative dependency are absent. In fact,
the world that this vision of autonomy imagines is a world that
can only be populated by adults, and then only by those adults
possessing sufficient capabilities and competencies to make it
possible that their only demand df government (aside from the
provision of security and courts of law) be for rules that guaran¬
tee their right to be left alone to realize the gains and glory their
individual talents may bring. The majority of arguments made
in this book are presented to show that such a vision is a
chimera, and that this version of autonomy is both undesirable
 THE TElfABTE STATE
273
r

and unattainable on an individual level and, therefore, destruc¬

tive from a policy perspective. We all experience dependency,
and we are all subsidized during our lives (although unequally
and inequitably so).

C. Giving Substance to Equality

In a paradigm that privileges an uncomplicated notion of au¬
tonomy, equality is inevitably also presented in a narrow and
simplistic manner. A simplistic autonomy discourse increasingly
dominates American politics. State affirmative attempts to guar¬
antee equality in more than a formal, procedural sense are con¬
sidered suspect; some regard this as “special treatment,” or the
very opposite of state neutrality that the autonomy-driven ver¬
sion of equality is deemed to demand. But the circumstances of
privileged members of society are not deemed “special” in the
same way. It is only explicit governmental attempts to assist
those who are disadvantaged that are to be prohibited. The laws
and structures that perpetuate wealth and privilege are not con¬
sidered special treatment, even thought they benefit only those
with “special” status and economic standing.
In this regard, it is important to note that the term “equality”
may be defined in several different ways. “Formal equality” is
the circumstance in which universal laws are applied equally to
everyone. Formal equality does not, however, guarantee that
everyone is treated equally. In fact, given existing inequalities,
formal equality ensures that there will be unequal results or im¬
plications. It is procedural, not remedial, in nature.
Of course, formal equality may prevent laws from drawing
distinctions on the basis of personal characteristics, such as the
United States Supreme Court’s decision in Brown v. Board of Ed¬
ucation,6 in which it ruled that segregated education was an
equal-rights violation. However, a formal equality approach ig¬
nores the fact that neutrality is seldom sufficient when there are
 THE AUTONOMY MYTH
274
«

gross underlying disparities in position. Nor does it address

those many situations in which laws that are neutral on their
face have an unequal impact. As the French quipped during
their revolution, the rich and the poor are equally punished if
found sleeping under bridges; the point being that a prohibition
on such conduct in reality only impacted the poor. It is those
groups that have traditionally suffered deprivation and discrim¬
ination that are too often only further disadvantaged by the ap¬
plication of the rules of formal equality.
Affirmative action programs or other remedial measures that
would draw distinctions between groups, even though designed
to help create a more level playing field, are attacked under the
rhetoric of formal equality.7 Yet it seems obvious that some level
of substantive or material well-being is a precondition for both
equal opportunity and the realization of a degree of individual
autonomy or choice. One cannot exercise freedom to pursue
options without a certain degree of social equity and capital. In
fact, some restructuring of the economic status quo would be es¬
sential in order to achieve a situation in which most people could
effectively strive for meaningful equality.
There is a competing way of thinking about equality. The
concept of “substantive equality” entails the “elimination of
major disparities in people’s material resources, well-being, op¬
portunities, and political and social power. It also ideally seeks to
minimize economic, social, and cultural oppression and ex¬
ploitation.”8 In order to achieve the goals of substantive equal¬
ity, it is necessary to address systemic inequality, assessing laws
and regulations in the context of historical discrimination, keep¬
ing in mind the goal of reducing oppression.9
Joel Bakan attempts to describe the conditions to which a
more substantively equal society would aspire:

[E] quality entails elimination of major disparities in people’s ma¬

terial resources, well-being, opportunities, and political and social
 THE TEN A'B L E- STATE
275
r

power, and an absence of economic, social, and cultural oppres¬

sion and exploitation. Perfect social equality may be impossible,

but the aspiration to rid society of oppressive and exploitative dis¬

parities, based on unequal social relations—such as those of class,

gender, and race—is realistic and worth fighting for.10

Bakan may be correct that it is impossible to achieve a perfectly

classless, genderless, and nonracist society—a true society of
equals—and yet we will surely never achieve even diminishment
of the social constraints of inequality if we cannot envision such
a society and move toward it.
The situation where the state ignores everyone’s needs
equally should no longer be tolerated. Some robust version of
substantive equality is essential in a society that imposes on indi¬
viduals an expectation that they can attain a degree of self-
sufficiency as adults. In order to eventually develop competency
to the fullest extent possible, an individual during her or his
formative stages of life must have access to basic material and
social resources. The assurance of some fundamental level of
economic security guaranteed to all caretaking units in which
such individuals are nurtured would be foundational in this re¬
gard. The state must subsidize care taking just as it does other so¬
cially productive labor. It is the articulation of this aspiration for
substantive equality that is the first step in building a politics to
demand it.

IV. THE POLITICS OF SUBSTANTIVE EQUALITY

There are several important questions to ask both our politi¬

cians and ourselves as we seek to refine and further define an
otherwise abstract commitment to substantive equality with
which to replace our current formal version. As with many con¬
cepts of historic magnitude, some of the most significant ques-
276 THE AUTONOMY MYTH

tions to pose about equality hate to do with how we should re¬

spond to evolutions in understanding and changes in aspiration
for the term: is a mere commitment to formal equality sufficient
for a humane and modern state?11 How should the state respond
to the fact that increasingly our society is one in which a privi¬
leged few command more resources than the struggling many,
and individuals are born into and continue to experience dis¬
parities in well-being that are built upon existing inequitable dis¬
tributions of society’s resources?
In the United States today, some live in real poverty and dep¬
rivation while a few have more wealth than they could spend in
ten lifetimes. Of course there also is the vast majority, who view
themselves as “middle class.” These Americans have homes, au¬
tomobiles, and even small stock portfolios. Most of them,
nonetheless, live in a state of insecurity. Given the way things are
organized in our system of privatized and individualized re¬
sponsibility, they are only a few paychecks, a catastrophic illness,
or a divorce away from economic disintegration and despair.
The insecurity and unfairness generated in the current politi¬
cal and economic organization of this society suggest that we
should fashion a sense of equality that is more concerned with
ultimate outcome or results. In such a society a more substantive
notion of equality would warrant that the rewards that it and its
resources produce are more equitably distributed among its
members. This would be a society with some basic guarantees of
social goods—a society that would not tolerate any person left be¬
hind,12 without adequate resources to allow them and their chil¬
dren to succeed to the fullest extetit possible.
T. H. Marshall argued that there are three separate categories
of citizenship rights in any democracy—civil, political, and so¬
cial—and that these rights develop in historically successive
stages. According to Marshall, civil rights include “the rights
necessary for individual freedom' liberty of the person, free-
 THE TENABLE STATE 277
r

dom of speech, thought and faith, the right to own property and
to conclude valid contracts, and the right to justice”; political
rights include “the right to participate in the exercise of political
power, as a member of a body invested with political authority
or as an elector of the members of such a body”; and social
rights “range from the right to a modicum of economic welfare
and security to the right to share to the full in the social heritage
and to live the life of a civilized being according to the standards
prevailing in the society.”13 Each one has developed out of con¬
flicts arising from a society’s attempts to realize the earlier at¬
tempt. Marshall did not claim that his theory represented a final
and definitive description—because of the ongoing conflicts in¬
volved in implementing them, he believed that citizenship
rights, and the ways in which they could be realized, would con¬
tinue to evolve and develop. Marshall coined the term “social
citizenship” to describe the status conferred by such an ap¬
proach to state responsibility.14
Marshall’s vision can form the foundation for an argument
that the state must provide the “rights of autonomous citizen¬
ship” in order for Americans to actually effectively exercise our
civil and political rights. Without the autonomy that basic social
goods provide, the rights of citizenship are merely formal, not
substantive.
While it is possible to appreciate Marshall’s notions of citi¬
zenship, the current politics in the United States are such that
substantive equality arguments are likely to be banished to the
realm of utopian visions. Absent some vigorous democratic
movement for change based on outrage stemming from the
badly skewed and unequal distribution of material, political,
and social goods, those who control the American state are likely
to do no more than continue it in its current role as reactive fa¬
cilitator of the market and its institutions.
278 THE AUTONOMY MYTH
«

V. HISTORICAL ROOTS FOR A MORE SUBSTANTIVE EQUALITY

One task for scholars and others interested in resurrecting the

foundation for a more equitable America is the excavation and
dissemination of progressive history. This is necessary in order
to counter the asserted inevitability of today’s narrow and re¬
stricted political will.
Constructing such histories is beyond the scope of this book,
but a few examples are warranted. One rich source is the aspira¬
tions set forth in Franklin D. Roosevelt’s Second Inaugural Ad¬
dress, deliveredjanuary 20,1937, and touching on the objectives
of the New Deal. Several should resonate with those disturbed
by the direction of today’s political climate. On economic
forces, FDR stated:

[W]e recognized a deeper need—the need to find through gov¬

ernment the instrument of our united purpose to solve for the in¬

dividual the ever-rising problems of complex civilization. ... To

do this we knew we must find practical controls over blind eco¬

nomic forces and blindly selfish men.

In a utopian vein, he continued:

We have always known that heedless self-interest was bad morals;

we know now that it is bad economics. Out of the collapse of

prosperity whose builders boasted their practicality has come the

conviction that in the long run economic morality pays. We are

beginning to wipe out the line that divides the practical from the

ideal; and in so doing we are fashioning an instrument of unimag¬

ined power for the establishment of a morally better world.

This new understanding undermines the old admiration of

worldly success as such. We are beginning to abandon our toler-

 THE T E N ‘A BLE STATE
279
t'

ance of the abuse of power by those who betray for profit the ele¬

mentary decencies of life.

And recognizing that progress often carries amnesia along

with it:

To hold to progress today, however, is more difficult. Dulled con¬

science, irresponsibility, and ruthless self-interest already reap¬

pear. Such symptoms of prosperity may become portents of

disaster! Prosperity already tests the persistence of our progressive

purpose.

Further, it was clear that the government had a vital role to

play:

I see a United States which can demonstrate that, under demo¬

cratic methods of government, national wealth can be translated

into a spreading volume of human comforts hitherto unknown,

and the lowest standard of living can be raised far above the level

of mere subsistence.

The appropriate means to measure progress were also clear:

The test of our progress is not whether we add more to the abun¬

dance of those who have much; it is whether we provide enough

for those who have too little.

Progressive history is not only to be found in Democratic ad¬

ministrations, nor do we have to retreat to the 1930s to discover
it. For example, the 1970s and 1980s marked an increase in work¬
ers’ benefits. This increase was generated under the guidance of
a Republican president. Professor Martha T. McCluskey de¬
scribes the development of the Occupational Safety and Health
28o THE AUTONOMY MYTH
«

Act of 1970, which highlighted “serious questions about the fair¬

ness and adequacy of present workmen’s compensation laws in
light of economic, medical, and technological changes.” 15 A bi¬
partisan national commission, appointed by President Richard
Nixon, had been unanimous in finding that contemporary state
protection was both “inadequate and inequitable.” According
to McCluskey, as a result of this examination, over the next de¬
cade, the majority of states enacted legislation that liberalized
benefits to workers.16
Professor Sonya Michel traces the movement to bring social
welfare benefits to poor families that began in the 1960s. She
notes that the discourse employed then “open[ed] the way for a
major shift in public policy toward low-income women.” 17 Over
the course of the 1970s and 1980s, this discourse about society’s
responsibility to mothers entered the discussion regarding the
progressive expansion of child-care benefits. This discourse is a
background for the arguments made in this book, which also ex¬
pands on T. H. Marshall’s notion of citizenship by arguing that
child-care allowances and other forms of compensation and ac¬
commodation are necessary social goods that must be provided
to caretakers.

VI. INTERNATIONAL NORMS

The practices and aspirations of other societies might also pro¬

vide additional inspiration for the beleaguered American pro¬
gressive. The problems presented by dependency and poverty
are not unique to American society. Other states have gone
through the process of allocating responsibility for dependency
among its institutions and determining what role it will play in
regard to supplying social goods and guaranteeing nonexploita-
tive practices.
 THE TENABLE STATE 28i
#>■

Norms have been developed in the international context that

suggest a definition of the role and responsibilities of the state
with regard to citizens that is far more expansive than the one
ensconced in American constitutional principles of equality. For
example, international human rights documents describe the
obligations the state has to guarantee certain rights. They are
far-reaching and diverse in subject matter and include the Uni¬
versal Declaration of Human Rights (which was the first inter¬
national statement to use the term “human rights”);18 the
International Covenant on Economic, Social and Cultural
Rights (which includes as basic rights such things as sufficient
wages to support a minimum standard of living, equal pay for
equal work, equal opportunity for advancement, and paid or
otherwise compensated maternity leave);19 the American Con¬
vention on Human Rights (which sets forth a commitment to
adopt measures with a view to achieve economic, social, educa¬
tional, scientific, and cultural standards);20 the African Charter
on Human and Peoples’ Rights (linking civil and political rights
to economic, social, and cultural rights);21 and the European
Convention for the Protection of Human Rights and Funda¬
mental Freedoms (recognizing the obligation to respect human
rights);22 among others.23
While it is true that these documents have not been ratified by
every country (most notably the United States) and their princi¬
ples are not uniformly followed in those states that have adopted
them, they do set out aspirational terms. They stand witness to
what are generally considered desirable, normative standards
that have been widely accepted in many societies.
The United States has not even gone as far as to agree to the
desirability of many of the provisions, and even some of those
documents that have been signed remain unratified (and unim¬
plemented) by the Senate.24 American reluctance to accept in¬
ternational norms is based pardy on the fact that some of the
282 THE AUTONOMY MYTH

documents embody an alternative to the formal vision of equal

opportunity entrenched in the jurisprudence of the United
States. For example, the International Covenant on Economic,
Social and Cultural Rights recognizes “the right to work, which
includes the right of everyone to the opportunity to gain his
living by work which he freely chooses or accepts.”25 The
Covenant goes on to set out as governmental responsibility the
obligation to ensure “fair wages and equal remuneration for
work of equal value” (thus stating the principle of “comparable
worth” in addition to the equal-pay-for-equal-work formal
equality notion behind United States law). It also places on the
state an obligation to ensure for citizens “a decent living for
themselves and their families.”26
Further, rather than confirming the role of the state as a sup¬
porter of the market and its institutions, these documents over¬
whelmingly suggest that governments are responsible for
countering and correcting for the natural imbalances and in¬
equalities that result from the actions of market institutions.
They focus on rights that would further the development of pro¬
gressive social equality, and emphasize remedial actions in re¬
gard to traditionally disadvantaged societal groups.
While the documents all place a heavy emphasis on equality
and equal rights, and discourage discrimination, they generally
promote a vision of equality that goes beyond formally treating
every member of a society in the same way. They recognize that
some members of society may justifiably need different treat¬
ment and different societal resources in order to gain an equal
opportunity within society.27 v
Many of the international documents include provisions
specifying that members of traditionally disadvantaged
groups—women, racial and ethnic minorities, people with dis¬
abilities, the elderly, and children of unmarried parents—
should not suffer discrimination. Affirmative action-type
 THE TENABLE' STATE 283
r

programs are recognized as sometimes necessary to achieve

such an inclusive vision.
Further, international human rights documents also recog¬
nize the issue of dependency with provisions for the needs of
those who are elderly,28 ill,29 or handicapped,30 members of “the
highest risk groups . . . [or] those whose poverty makes them the
most vulnerable.”31 In this context, some provisions acknowl¬
edge the special burdens that are placed on the family—the so¬
cietal institution traditionally responsible for dependency—and
specifically mandate that the state play an active role in support¬
ing the family. The International Covenant on Economic, So¬
cial and Cultural Rights states that “[t]he widest possible
protection and assistance should be accorded to the family . . .
[particularly] while it is responsible for the care and education of
dependent children.”32
States use these norms in crafting their own laws. The Consti¬
tution for the Republic of South Africa, for example, includes in
its Bill of Rights the guarantee that “everyone has the right to
have access to . . . social security, including, if they are unable to
support themselves and their dependents, appropriate assis¬
tance.”33 The same constitution mandates that “the state must
take reasonable legislative and other measures, within its avail¬
able resources, to achieve the progressive realization of [the
right to have access to adequate housing].”34
In addition, courts all over the world are using these concepts
and norms and communicating with one another with regard to
human rights. These documents provide the bases for discussion
and for demands. They are the substance of a growing consen¬
sus, the principles in a discourse that is shockingly muted in the
United States.
Interestingly, as the international norms are filtered through
local laws and made viable within jurisdictions, court cases
from other states are increasingly relied upon in countries that
284 THE AUTONOMY MYTH
«
\
adhere to international human rights standards.35 This process
of globalization of decisional standards in which various
nations’ experiences can inform and inspire other nations
with regard to human rights, occurring with frequency in coun¬
tries such as Australia, South Africa, and Canada, is not
common in the United States. We remain isolationist in our ju¬
risprudence.
Just a few years ago Justice Ruth Bader Ginsburg, comment¬
ing on other countries with regard to this development, noted
the lack of integration of international norms in America,
“the same readiness to look beyond one’s own shores has not
marked the decisions of the [United States Supreme Court].”36
At that time, before Lawrence v. Texas?1 Ginsburg found only five
mentions of the Universal Declaration of Human Rights in
Supreme Court cases. Out of these few acknowledgments to our
sister countries’ courts, only two were to be found in the opin¬
ions of the Supreme Court’s majority. Ginsburg also docu¬
mented that the most recent of the citations appeared thirty-two
years earlier in a dissenting opinion written by Justice Thurgood
Marshall.
The concepts underlying these universal documents—inher¬
ent human dignity, equality, freedom, and justice—are well
worth exploring and advocating. They go beyond the purely
economic justifications of the market that have been used to
promote much of contemporary American social policy.

VII. FORGING A MORE JUST SOCIAL CONTRACT

A. Subsidies and Support

Distilling the arguments that have been made in the preceding
pages in order to reimagine the respective responsibility of fam¬
ily, market, and state in regard to dependency would yield a few
 THE TENABLE STATE 285
r

basic premises. First, the state provision or assurance of basic so¬

cial goods to all individuals is essential in a humane modern so¬
ciety. Second, as argued in chapter two, inevitable dependency
is of general concern and may, therefore, be conceived of as a
generalized or collective responsibility. Third, undertaking care¬
taking exacts a unique cost from an individual caretaker, who
becomes derivatively dependent on society and its institutions
for additional material and structural resources necessary to do
care work well.
With these premises in mind, an argument flows that a just
state would provide two different types of subsidies to indivi¬
duals—lifelong provision of fundamental social goods, which
are necessary for individual survival and flourishing, and spe¬
cific additional subsidies that support the caretaker and caretak¬
ing. Basic social goods are economic or material in nature and
include essentials such as housing, health care, a minimum in¬
come guarantee, and other necessities that complement and fa¬
cilitate the expression of an individual’s civil and political rights
in a democracy. This responsibility for some minimal form of
substantive equality marks a right of humanity no less impor¬
tant and worthy of governmental protection than are already-
guaranteed formal civil and political rights and equalities. The
initial governmental task, therefore, would be to ensure a more
just allocation of the goods society and its institutions are pro¬
ducing.
The second type of subsidy, which is specifically directed
at supporting caretaking, requires the state to ensure both mate¬
rial and structural accommodation. In this regard, the state
would provide some subsidies directly, such as child-care al¬
lowances, but also oversee and facilitate the restructuring of the
workplace so that market institutions accommodate caretaking
and, in this way, assume some fair share of the burdens of de¬
pendency.
286 THE AUTONOMY MYTH
«

The mechanisms that might be available for funding these

subsidies include the current tax and subsidy systems that so ef¬
fectively channel rewards to corporate and business interests.
The state could assess (and ultimately tax) the market institu¬
tions based on the imputed benefits they receive from uncom¬
pensated caretaking labor.38 Other societies, such as those of
Canada and the European Union countries, routinely provide
support and subsidies to the family in numerous ways, such as
child tax benefits, universal health care, and governmentally
subsidized higher education.39 These collectively provided sup¬
ports would be welcome in our privatized system, where cur¬
rently health insurance and a college savings fund represent a
significant portion of the budget of even a middle-class fam¬
ily—a system in which single mothers, dually burdened with
caretaking and economic responsibility, may find even basic
health care prohibitively expensive.
The restructuring must not be blind to the transnational na¬
ture of caretaking work. As suggested in chapter two, the de¬
valuing of dependency work left it classified (or ignored)
“outside” of the market. Much of this labor is still ungoverned
by market institutions.
The National Bureau of Labor Statistics marks 416,540 indi¬
viduals as employed as “child care” workers, yet this figure obvi¬
ously excludes nannies, au pairs, and other dependent laborers
who are employed illegally.40 Significandy, if the middle class is
compensated for derivative dependency, the work may simply
fall to immigrants (legal and illegal) who in turn will be exploited
for their care taking labor. This Is especially true when one con¬
siders the massive global-wealth divide. After all, structural ac¬
commodations that exclude the great number of noncitizens
would merely force one class’s exploitation onto another. Grace
Chang, in Disposable Domestics, documents the trend of middle-
and upper-class women hiring poor immigrant women as “af-
 THE TENABLE STATE 287
r

fordable” care. She asserts that “the advances of many middle-

class white women in the workforce have been largely predi¬
cated on the exploitation of poor, immigrant women.” 41
While the precise number of illegal child-care workers may
be next to impossible to ascertain, the recognition of their im¬
portance must include an acknowledgment that the market has
ignored this essential work, and may continue to ignore it, if it is
not recognized throughout economic classes. Without an eye ul¬
timately toward global reformation, subsidies for caretaking
labor may serve only a temporary solution. These problems pro¬
vide a roadmap for future explorations in accommodation and
reform surrounding dependency work.
The additional state responsibility in regard to caretakers in¬
volves supervision of a restructured market sphere, a subsidy
that is every bit as important and essential to caretakers as are
economic adjustments. The state must ensure that market insti¬
tutions respond appropriately to the dependency burdens borne
by the workers. Workplaces must be restructured so that respon¬
sibility for dependency is distributed more jusdy between family
and market, thus alleviating the conflict between care work and
workplace responsibilities that often results in neither being
done well. This restructuring must include options in accommo¬
dation, such as flexible workweeks, job sharing without penalty,
and paid family leave. Along with the economic reforms noted
above, including a guarantee of a living wage, these adjustments
to the workplace would create a more equitable arrangement
for distributing the burdens of dependency between the market
and the family.42

B. Generalizing the Concept of Care

Some conservative commentators will doubtless respond to
these (relatively) modest economic proposals by trumpeting no¬
tions such as individual choice and attendant consequences, or
288 THE AUTONOMY MYTH
«
%
waxing eloquent on the sanctity of personal responsibility. I sus¬
pect a problem for more, progressive readers, however, will be
the accommodation or restructuring of the workplace compo¬
nent of my arguments. In contemplating the implications of a
restructured workplace, those without caretaking responsibility
may fear that they would be ultimately forced to bear the costs of
accommodation and change.43 Workers without children may
resist my suggestion because they would be the ones who had to
work longer hours to fill in for absent colleagues. They might
wonder how much their salary might be reduced to pay for ben¬
efits they will never use, such as family leave or day care on site. I
have two responses to such concerns. One is pragmatic, the
other more philosophical in nature.
In the first instance, we all must realize that even if we are
unencumbered by dependents today, we do not know what
the future holds for us with regard to the relevancy of depend¬
ency for the options we have in our lives. We may become care¬
takers even if we plan not to. We might avoid having children,
but all of us have parents, and many of these parents become
disabled as they age and become dependent on their adult chil¬
dren.44 In addition, we ourselves might become disabled—be¬
come the dependent rather than the caretaker in the caretaking
relationship. In that instance we would certainly want our care¬
takers to have the resources they would need to undertake our
care.
In this regard, considering our own individual need for care,
we should take an expansive view and include the need for self-
care. Garetaking is not socially productive only when it is im¬
proving the situation of others. Human beings must also care for
our own nonmaterial or spiritual needs.
Respect for a need for self-care is particularly important in
our increasingly workaholic society. Americans work longer
hours and more weeks of the year than do our European coun-
 THE TENABLE 'STATE 289
r

terparts. We have little time left to regenerate our energies and

resources, to participate in the artistic, nonmaterial, spiritual, or
other inner-directed aspects of life upon which we all depend for
our individual well-being. A commitment to caretaking should
include this concern, along with the demand that society and its
institutions be organized so that the emotional and nonmaterial
aspects of life are not ignored.
From a philosophical perspective, it is important to point out
that focusing on the caretaker’s position ultimately illuminates
something general about the organization of society: what is
valued and respected. Generalizing from the initial perspective
of exploitation of caretaking labor, it becomes possible to argue
that such exploitation is also the norm in other forms of work.
Expanding the idea of a collective or societal debt based on
society-preserving labor beyond caretaking labor, one can argue
for accommodation of others who are overlooked and underval¬
ued. There are many workers whose labor provides for the
needs, growth, and maintenance of society and its institutions,
but whose contributions are undercompensated. They are also
owed some material and structural adjustments in our current
version of free-market capitalism.45
Particularly in the market context, we need to be reminded
that corporations and those who run, direct, and profit from
them cannot function without the labor of others. The contri¬
butions of secretaries and truck drivers are as essential to com¬
merce as are those of highly paid CEOs and stockholders. Thus,
the arguments that began with recognition of caretaking can
evolve into a claim for universal provision of basic social goods
grounded in basic humanity and the recognition of societal con¬
tributions that are nonmonetary and currendy undercompen¬
sated. These contributions should be valued in a public, positive,
and egalitarian fashion.
The idea of societal debt, coupled with the social-contract
290 THE AUTONOMY MYTH
«

\
metaphor, can provide a way to reintroduce and reinforce
noneconomic values, such as norms of distributive justice or
provision of worker security, into contemporary American po¬
litical ideology. These concepts are realized in a consistent polit¬
ical and material way in other industrialized democracies. For
those who question the wisdom of starting from caretaking and
then expanding to the “larger” word of wage workers, I can only
respond that it is necessary to secure the foundation before we
rehabilitate all that is built upon it.
This argument can be carried to relationships that exist be¬
yond the borders of the United States. A consideration of the
international implications of rethinking the state’s responsibility
with regard to dependency and subsidy is beyond the scope of
this book. Future work, however, may fruitfully explore the
many ways in which our economic and material success is
grounded on the provision of subsidies from other nations:
goods and services that are appropriated through a system in
which Western domination is built on centuries of colonization
and exploitation that to some extent parallels the appropriation
of women’s labor in the family.
Just as the family performs essential but invisible work, and
some necessary tasks are undervalued in the market, various
countries and their citizens’ labor directly contribute to the well¬
being of American multinational corporations, and hence also
to the American state. Often this contribution to market and
state is accomplished at the expense of individual American
workers, as production is shifted abroad to take advantage of
labor systems that pay mere fractions of what homegrown
workers would demand.
The United States has a responsibility to monitor these rela¬
tionships and the corporations that create and exploit them. It
also has a responsibility to acknowledge and heed in fashioning
policy our dependence on the rest of the world.
 THE T E N A B'T. E STATE 291
IT

Just as there are no autonomous, independent, and self-

sufficient individuals, no nation can stand alone. Yet, we now
face a situation in which the rhetoric and actions of our political
leaders evidence a willful disregard of the international commu¬
nity and other alliances of nations.
 Postscript '

What Place for Family Privacy?

in this book, I have been rethinking the arrangement among

family, market, and state by undermining the idea of autonomy
and articulating a theory of collective responsibility for depend¬
ency. In the process, I reconfigured certain core concepts in
American policy discourse in order to make an argument for the
redistribution of responsibility for dependency across these co¬
ercive institutions. I used the term “coercive” to distinguish
these highly regulated, legally defined institutions from more
voluntary social structures such as philanthropy, religion, or
charity.
My argument has been that dependency, which is seen, at
least partially, in many othervsystems as a collective responsibil¬
ity, in ours is privatized through the institution of the family. Our
state, through its capitalist nature, is perceived as having a role in
the delivery of social goods only in the case of family default. In
such instances, the state might provide highly stigmatized assis¬
tance (welfare) for those (deviant) families unable to provide for
 WHAT PLAGE FOR FAMILY PRIVACY? 293
r

their members’ needs.1 Market institutions have little, if any, di¬

rect responsibility for the family, even for the families of their
own workers.
A more appropriate and equitable scheme would redistribute
the burdens for inevitable dependency, causing the market and
the state to assume some of the up-front share of the economic
and social costs (the subsidy) inherent in the reproduction of so¬
ciety. One conceptual problem with the idea of collective re¬
sponsibility for dependency is the corresponding argument that
assumption of such responsibility must be accompanied by col¬
lective control over the circumstances leading to that dependency.
If society has obligations to subsidize and support caretakers,
then society should have a correlative right to control intimate
decisions that produce or effect dependency decisions concern¬
ing reproduction, family formation, and family function.
Some concept of privacy is necessary for resisting assertions
about the appropriateness of collective control. In fact, weaving
a reconfigured concept of family privacy into the arguments for
collective responsibility strengthens both concepts. Collective
responsibility accompanied by a well-developed notion of pri¬
vacy for the caretaking unit can provide autonomy for that unit.
Collective resources provide the ability, while the norm of non¬
intervention provides the freedom, for families to freely under¬
take the societal tasks they have been assigned.
In regard to our current social scheme, we use a notion of pri¬
vacy to give the family coherence. We perceive a line of privacy
drawn around certain intimate units that distinguishes them as
“family.” The privacy line defines the relationship of individuals
within the family entity and mediates their relationship to the
state.2 This line of privacy currently shields few entities. Al¬
though it has historically been drawn around the traditional
marital family, it should instead be drawn around caretaking or
dependency units.
 294 THE AUTONOMY MYTH

In fact, rethinking our ideas about dependency and self-

sufficiency mandates a corresponding reconsideration of other
assumptions about the family as an institution and a reconcep¬
tualization of the family’s relationship with the state. As part of
this process, the question is whether we can modernize the con¬
cept of family privacy, making it a complement to our restruc¬
tured vision of the family. This will involve looking at both
intrafamily ties and the position the family occupies in relation
to the state.
The task of reconfiguring privacy has two related compo¬
nents: a shift in our understanding as to what privacy attaches—
family function and not family form—and the development of
family privacy as an entity-based entidement to self-government
or autonomy. Thus conceived, privacy would not be a right to
separation, secrecy, or seclusion, but rather the right to auton¬
omy or self-determination for the family, even as it is firmly lo¬
cated within a supportive and reciprocal state.3
I distinguish family or entity privacy from constitutional or in¬
dividual privacy. Family privacy is a common-law concept that
is not individualized, but founded on the nature of the protected
relationship. Family privacy attaches to the entity of the family,
not to the individuals who compose it. Historically, this has
meant that, in certain situations, the doctrine operates to shield
the family unit from state interference, even when the request
for intervention comes from one of the family members.
Recognizing the typical critiques of family privacy, in this
postsci ipt I argue that we must think beyond the historic mani¬
festations of the concept. My reconstruction of family privacy is
moi e ideological than doctrinal. It is also a necessary part of re¬
visioning the family along functional lines.

V
 WHAT PLAGE F OK FAMILY PRIVACY? 295
r

I. PRIVACIES

Most commentators focus on privacy as a matter of federal con¬

stitutional doctrine. This strand of privacy jurisprudence is indi¬
vidualistic in nature and has been the basis for some important
decisions protecting reproductive choice. This individual or
constitutional notion of privacy is certainly necessary to deter
certain impulses toward collective control in sexual and repro¬
ductive areas.4 In fact, there has been quite a bit of debate in re¬
cent years about the effectiveness, as well as the wisdom, of
using privacy to secure individual rights. I remain an agnostic on
questions such as whether equality or privacy is the most potent
concept with which to preserve individual reproductive rights.
Nor do I offer an opinion as to whether some form of sexual pri¬
vacy is essential for the development of individual personhood.
My interest in the legal or doctrinal idea of privacy is focused
on its use in consideration of the institution of the family—
privacy in its common-law sense. The notion of the private fam¬
ily predates, and is analytically separate from, the constitutional
idea of individual privacy, although this new arena of privacy
seems rooted in older notions about family relations. For exam¬
ple, Griswold v. Connecticut is often cited as the bedrock case for the
development of our constitutional concept of individual pri¬
vacy in regard to reproductive decisions.5 But the Gnswold opin¬
ion, articulating the concept of privacy, clearly looks beyond the
individual, referencing an entity or marital concept of privacy.
The question Griswold explicitly presents is whether there is a
constitutional right for married couples to use contraception.
Justice Douglas’s majority opinion may characterize the right to
this type of privacy as located in the now-well-known penum¬
bras, but its presence transcends those shadows. The privacy
interests at issue were deemed “older than the Bill of Rights
older than our political parties, older than our school system.’'7
296 THE AUTONOMY MYTH

There is little ambiguity about what is being protected: “[m]ar-

riage is a coming together for better or worse, hopefully endur¬
ing, and intimate to the degree of being sacred.”8 Justice
Goldberg’s concurring opinion reiterated the point that it is
marriage that deserves protection, stating that the statute at
issue deals “with a particularly important and sensitive area of
privacy—that of the marital relation and the marital home.”9
From the family law perspective, Eisenstadt v. Baira10 is the rad¬
ical departure, because it takes the idea of entity or marital pri¬
vacy and expands constitutional protection beyond the
common-law limitations of the family relationship. In Eisenstadt,
the court stated:

It is true that in Griswold the right of privacy in question inhered

in the marital relationship. Yet the marital couple is not an inde¬

pendent entity with a mind and heart of its own, but an associa¬

tion of two individuals each with a separate intellectual and

emotional makeup. If the right of privacy means anything, it is

the right of the individual, married or single, to be free from un¬

warranted governmental intrusion into matters so fundamentally

affecting a person as the decision whether to bear or beget a

child.11

This articulation of the principles enumerated in Griswold estab¬

lishes the individual as the relevant subject of privacy inquiry. In
effect, a constitutional cloak of privacy was thrown over certain
individual decisions involving sex and reproduction.12
If we were to return to the do'etrine of family or marital pri¬
vacy, we would see that it is distinguishable from the new indi¬
vidual variety in several significant ways. The obvious difference
is in the designation of the relevant unit for protection, entity
verses individual. Also important, however, is the historic fact
that family privacy operated as a generalized protection. What
 WHAT PLACE F O it FAMILY PRIVACY? 297
r

was shielded from state intervention and control was not only
specific, weighty, intimate decisions, such as the decision to
beget or bear a child, but also mundane, day-to-day family in¬
teractions.
Although the Supreme Court has brought some aspects of
family privacy into constitutional law, the cases that are most rel¬
evant in discerning the characteristics of family privacy are
state, not federal, decisions.13 The task of the state family pri¬
vacy cases is not to pronounce grand principles or to figure out
how to mesh family privacy with other constitutional limita¬
tions. Instead, these cases address expectations and aspirations
for families, articulating in the process what might be character¬
ized as an ethic or ideology of family privacy. This ideology,
which is noninterventionist, is rooted in an idealization of the
family, and it references the perceived pragmatics of family rela¬
tionships as well as the acknowledged limitations of legal (par¬
ticularly judicial) systems as substitutes for family decision
making. The ideology expresses the norm of nonintervention in
ongoing families—a principle of state restraint because of the
needs of the functioning family.14
The facts of McGuire v. McGuire,15 a Nebraska state court
spousal support case, illustrate the contours of the common-law
doctrine of family privacy. Mrs. McGuire had asked the court to
intervene and require her husband to provide suitable mainte¬
nance and support for her. She did not want a divorce or legal
separation, but instead she sought the enforcement of the terms
of the state-defined marriage contract, which required husbands
to support their wives. Her complaints about her husband’s lack
of adequate support were rather compelling. For example, al¬
though her husband was a fairly wealthy man, she had not re¬
ceived money to buy clothing for several years. Further, she lived
in a house with no indoor bathroom, kitchen sink, or function¬
ing central heating. The Nebraska Supreme Court, while indi-
298 THE AUTONOMY MYTH

eating that the husband’s behavior was inappropriate, nonethe¬

less held that his marital obligations could not be enforced if
Mrs. McGuire chose to remain in her family relationship:

The living standards of a family are a matter of concern to the

household, and not for the courts to determine, even though

the husband’s attitude toward his wife, according to his wealth

and circumstances, leaves little to be said in his behalf. As long as

the home is maintained and the parties are living as husband and

wife it may be said that the husband is legally supporting his wife

and the purpose of the marriage relation is being carried out.

Public policy requires such a holding.16

Mrs. McGuire’s petition for a level of support consistent with

the family’s wealth and income would be granted only if she left
the relationship. As long as the marriage lasted, the courts would
not intervene, even when asked to by one of the spouses and
even if all that was requested was the enforcement of state-
imposed family obligations.
Of course, children present a more problematic situation. We
are less certain that children can protect themselves within the
family, much less from the family. The nature of the parent-child
relationship has occupied state courts’ attention. Parental con¬
duct, be it disciplinary or decision making, is generally protected
unless it constitutes abuse or neglect of the child. Courts consis¬
tently reiterate the common-law presumption that parents act in
the best interests of their children. The law’s concept of the
family rests on the presumptionAhat, parents possess what chil¬
dren lack in maturity, experience, and capacity for judgment.17
The parent-child connection has also received some attention
by the United States Supreme Court.18 Consistent with the ap¬
proach undertaken in Griswold to find sources for a married
couple’s constitutional right to privacy in their bedroom, the
Supreme Court opinions about parent-child relationships exca-
 WHAT PLACE FOR* FAMILY PRIVACY? 299
r

vate parental rights not from explicit textual provisions, but from
the history and functioning of the family itself.19

II. LIMITATIONS OF PRIVACY

Both individual and entity versions of privacy have limitations.20

For example, family privacy is limited in two important senses.
First, there is the historic doctrinal limitation that family privacy
apply primarily to family units that conform to ideological con¬
ventions about appropriate form and function—meaning, in¬
tact nuclear families. Second, in recent decades the idea of
family privacy has been severely criticized by feminists: chil¬
dren’s rights proponents; and others concerned with the poten¬
tial for physical, emotional, or psychological abuse of some
family members by others. Family privacy has been charged
with obscuring and fostering inequality and exploitation.21
Somewhat of a dilemma is presented for those of us who view
privacy as essential and necessary to the very concept of family.
While we recognize its significance, we must concede that pri¬
vacy can conceal, even foster, situations dangerous to the indi¬
viduals who comprise the family unit. The focus on the necessity
of privacy for family formation and functioning arises from con¬
cern with abuses associated with state intervention and regula¬
tion of intimacy. If there is no privacy attached to the family and
its functioning, we must be concerned with state intervention
and regulation of intimate relationships.
By contrast, if we are attuned to potential abuses within the
family, we are reminded that often they are hidden beneath the
cloak of privacy and that power imbalances provide incentives
for stronger family members to prey upon or exploit weaker
ones.22 When we consult the empirical data, it seems both con¬
cerns are warranted. Therefore, the obvious goal should be to
reconcile both concerns and to balance family privacy with pro-
300 THE AUTONOMY MYTH

tection for family members. Too often, however, advocates dis¬

card one (particularly family privacy) for the sake of the other.

III. REVISIONING PRIVACY

In attempting to reconcile the need of the family for privacy

with the obligation of the state to protect its citizens, we should
first resolve the question of family population. How are we
going to define the family that will be entitled to privacy protec¬
tion? Existing law defines the family through legal affiliations.
Only certain ties are significant for the establishment of the sta¬
tus of family. Some ties are purely legally contrived, such as
those in the construct of marriage, while others are considered
to be reflective of more “natural” links, such as the parent-child
bond.23
The legally conceived family presumptively is, or has been, a
reproductive unit. As argued in chapter four, the primary tie
that gives the family its current privileged form is the heterosex¬
ual affiliation of husband and wife.24 Theirs is a connection con¬
sidered basic to family and to state, and therefore historically
legally mandated to be permanent, exclusive, and stable.25 This
traditional family was hierarchically organized with well-
defined gendered divisions of labor. It is this family that is re¬
flected in much of the feminist criticism of recent years, as
indicated in chapter five. The introduction to part three dis¬
cussed the work of Professor MacKinnon, which critiques fam¬
ily privacy as allowing the oppression of women by men. It also
highlighted the work of Professor Allen, which urges feminists to
develop a concept of privacy that could protect women’s auton¬
omy within families, in some regard freeing them from the de¬
mands of children and spouse. .
A more central criticism of privacy, from the perspective of
this postscript, is presented by those who focus on the rights of
children. Family privacy in this regard protects parental author¬
ity and autonomy.26 In this area, the tendency of privacy critics
who see abuses has been to individualize the family, by separat¬
ing children out for special concern and state protection. Some
child advocates focus on physical and psychological abuse of
children within families. These seem to me to be easy issues
(problems of definition aside). Privacy should never be used to
condone or obscure abuse.
What are of concern, however, are the more sweeping claims
of the child advocates—those who focus on the very basic ques¬
tion of how children are described and treated in law. The dis¬
comfort of child advocates in this regard seems to be related to
the traditional hierarchical or unequal nature of the parent-
child relationship. The charge often leveled is that the law treats
children as though they are the property of their parents, an in¬
flammatory characterization that does more to obscure than to
illuminate the issues.
There are a number of suggestions for recasting the relation¬
ship between parent and child, for example, substituting con¬
cepts such as stewardship or trusteeship for the more traditional
notion of parental authority, and thus leveling out the relation¬
ship.27 These ideals, amorphously appealing on a rhetorical
level, seem harmless enough as aspirations. The problems arise
when they are implemented into laws that can be used at the rel¬
atively unfettered discretion of various state actors to under¬
mine, even usurp, parental decision-making authority.
From the perspective of my project, notions of child advo¬
cacy can raise some interesting issues. How might a general and
broadly construed norm of child advocacy relate to the con¬
cepts of collective responsibility without collective control? Per¬
haps advocacy may be of benefit to the project. For example,
noted child advocate Professor Barbara Woodhouse has urged
302 THE AUTONOMY MYTH

the idea of stewardship. She uses the child advocates’ claim that
children must be treated a.s “people in their own right” to argue
for laws and policies that focus on children’s welfare.28
Although she does believe that children’s welfare might neces¬
sitate some monitoring of parental authority, Woodhouse
reaches for more than mere control over parents. With the ob¬
jective of children’s welfare as the organizing tool, she advocates
for a more extensive sense of children’s rights—“needs-based
rights.” These rights are not associated with children’s rights to
autonomy or independence, but are the basis for a positive claim
for basic nurture and protection.29 These rights create responsi¬
bility, not only for individual parents, but also for the larger com¬
munity, and require political responses.
To some extent, Woodhouse’s concern with basic-needs
rights reflects my own call for collective responsibility for de¬
pendency. However, the identity of the rights holder and the
source of the right are different in important ways. My claim is a
communal one—entity focused and based on a claim of entitle¬
ment or right originating as a result of the societal work per¬
formed by caretakers.30 Woodhouse’s model is not a
compensatory one, but is based on the status of the child as a fu¬
ture citizen. She positions the child as the claim holder and, in
doing so, conceptually breaks up the family into individual and
therefore potentially competing interests. This paves the way for
claims of collective supervision and monitoring of parental
stewardship.

IV. AUTONOMY FOR FAMILY FUNCTIONING

Rethinking the family and its relationship to the state requires a

corresponding rethinking of other primary institutions and
foundational concepts.31 As part of this process, I suggest that
 WHAT PLACE F O It FAMILY PRIVACY? 303
#■

we can and should rethink privacy in such a way as to confer au¬

tonomy on caretaking or dependency units. The beneficiary of
this privacy is the unit, defined through its functioning, not its
form. In fact, the caretaking unit could adopt a multitude of
possible forms. The unifying idea that creates a new family is the
existence of a caretaker-dependent relationship.
My version of the new entity privacy, designed to comple¬
ment the new family, could be called “autonomy.” Autonomy in
this sense would protect entity decision making, giving the unit
the space and authority to self-govern, and including the right of
self-definition. Autonomy does not presuppose that the family
would be separate from society. The family would be anchored
firmly within society, and subsidized and supported by market
and state, but would retain authority within its parameters.32
Privacy, just like subsidy, should attach to units performing soci-
etally necessary and essential functions, such as care taking.33
This version of a reconceived family, entided to privacy or
autonomy, is responsive to some of the critics of old forms of
family privacy. For example, if the family is defined functionally,
focused on the caretaker-dependent relationship, the tradition¬
ally problematic interactions of sexual affiliates (formerly desig¬
nated “spouses”) are not protected by notions of family privacy.
MacKinnon’s charge that men will exploit women in an inti¬
mate context may still be a problem, but it will no longer be a
privacy problem. The fact that privacy is refocused removes
from the special or family context the entire range of relation¬
ships between sexual affiliates, opening them up to public
scrutiny.34
This opening up of some relationships to scrutiny does not
mean that my reconfigured family model is going to escape fem¬
inist criticism, however. The criticism is most likely to be that a
notion of collective responsibility (and therefore social subsidy)
and privacy protection for the caretaking-dependent relation-
 THE AUTONOMY MYTH
304
«

ship will permanently enthrall women as dependency laborers.

As I argued earlier, I think such arguments are based in part on
assumptions about women’s false consciousness.
In any case, my objective is not social engineering. I do not
consider it my place to persuade women not to undertake care¬
taking; rather, I seek to ensure that if they do undertake it, they
will not be systemically disadvantaged and rendered economi¬
cally dependent on men or on highly stigmatized state assistance
as a result. I do believe in the possibility of women’s agency—
the ability to choose among options—including the option to
undertake a caretaking role. This position, I believe, is compati¬
ble with the aspiration of gender equality. Although we all oper¬
ate within societal and cultural constraints, we can determine
direction and decide to take one path rather than another.
Women should have the ability (subsidy and privacy) to under¬
take a caretaking role.
The problems suggested by child advocates will be more on
point for challenging privacy for the new family I envision. This
is true because the exemplar of the caretaker-dependent rela¬
tionship is the parent-child relationship. Significantly, these are
relationships of inherent inequality, reflecting the fact that one
role is that of child or dependent, while the other is that of par¬
ent or caretaker. To point out an inequality in a relationship is
not to make an assertion as to how we should value children.
Children (or any other inevitably dependent person) are as
important and valuable as caretakers, but they are typically not
equals in the sense that society does not presume that they are
equivalent to adults in capability or ny their ability to make judg¬
ments. Therefore it is more appropriate to view the parent-child
relationship not as one of equality (as with sexual affiliates), but
as one of responsibility. It is not about individuals, but about a
relationship. And the relationship, defined by responsibility, re¬
quires privacy or autonomy for the caretaking entity.
It is this distinction between equality and responsibility—
 WHAT PLACE FOR' FAMILY PRIVACY? 305
r

between valuing the individuals and assessing the relationship—

that many child advocates fail to make. In fact, some child advo¬
cates’ attempts seem like efforts to equalize the relationship
between parent and child by adding the supposedly leveling
force of the advocate (as stand-in for the state). My argument
about autonomy for the caretaking unit is an assertion that some
relationships should be considered outside of the equality para¬
digm that so dominates liberal legal scholarship.35 The reason¬
ing of some child advocates presents the danger that, under the
rubric of protecting the child, we facilitate state intervention
and control, and potentially undermine the autonomy of care¬
taking units.
The fact that we can think that some intimate relationships
are inherendy unequal does not mean that they will inevitably
be exploitative and oppressive or that the less powerful partici¬
pant will have no voice within the relationship.36 I explicidy
mention this because it seems that many child advocates assume
that exploitation necessarily follows once the inequality of the
child is posited.37 In the same way, the lack of a legal voice is
equated with the lack of an actual voice.
Of course, the determination of typical and atypical modes
of operation in caretaker-dependent units presents an empirical
question. My assumption is that a careful study would show that
the relationship between typical caretakers and dependents is
dynamic (it is in motion), fluid (easily changing shape), and in¬
teractive (the participants act upon each other). The reciprocal
interactive nature of the relationship ensures that it will not be
fixed. The reciprocity also means that in regard to family deci¬
sion making, the dependent will seldom, if ever, be absent.
Caretakers typically consider dependents’ needs. Often de¬
pendents are an explicit part of the process of decision making,
and at times they are even in control of it. Just as the relationship
is fluid within daily interaction, it is dynamic over time. While
the authority of a parent over a child will decline as the years
3°6 THE AUTONOMY MYTH

pass, an adult child’s authority over (and responsibility for) an

elderly or ill parent may increase. This is not to assert that there
will never be wrong decisions made by caretakers, or even that
there will never be outright abuse. No system of child advocacy,
no matter how interventionist and regulatory, can deliver only
optimal, nonabusive caretaking.
It is important in this regard to realize that the debates about
child advocacy are, to a large extent, only arguments about legal
relationships and how legal authority is distributed. As a practi¬
cal matter, they are arguments about the relationship between
state and family more than attempts to define and regulate in¬
trafamily interactions. By contrast, if we focus, as I urge, on en¬
tity autonomy and responsibility, we are at least attempting to
understand and respond to how family units function. Reflect¬
ing on the discussion about marriage in chapter four, it is impor¬
tant to recall that legal relationships capture only some things
about “real” families, often distorting a family’s reality in the
process. This distortion results, in part, from the adversarial na¬
ture of legal relationships.
One danger of imposing an equality aspiration on relation¬
ships of responsibility is pertinent for the ideas of subsidy and
collective responsibility discussed earlier.38 If we look at the child
as the recipient of the subsidy and not the unit (in which the
caretaker is the “head”), several issues arise. Foremost is the very
real possibility that if the child is seen as the object of social pol¬
icy and justification for subsidy, some form of quality control
will be considered appropriate. Standardization and normative
judgments in a diverse and pluralistic society can be problematic
and contentious.
By contrast, if subsidy is perceived as going to the caretaker-
dependent entity or unit, it is more likely that autonomy over de¬
cision making will follow. Units may make mistakes, but if it is
not abuse or neglect (we can argue about where to draw those
lines later), then the unit as recipient of the subsidy should de¬
cide how it is to be used. This way of looking at what is the ap¬
propriate focus for policy also gives value to caretaking labor.
The dependent may be the beneficiary, but the labor of the
caretaker is what has societal value.

V. CONCLUSION

To protect caretaking relationships, we must extend the right to

privacy beyond individuals. A concept of individual privacy,
particularly in regard to the formation of intimate connections,
can complement family privacy, but some protection that tran¬
scends the interests of individual members of the entity is essen¬
tial. When a caretaking-dependent unit has formed, family
privacy would serve to shield and protect the functioning rela¬
tionships within it. The protection would dissolve only if the en¬
tity grossly fails in the performance of its responsibilities or
because the underlying relationship has itself dissolved.39
Entity privacy would denote a line of nonintervention drawn
around ongoing functioning relationships.40 This version of pri¬
vacy can provide a barrier between an entity performing family
functions, such as the caretaker-dependent unit, and the poten¬
tially overreaching state seeking to impose collective standards
or controls. Properly conceived, privacy as a principle of self-
government allows the caretaker-dependent unit to flourish,
supported and subsidized by the larger society without the im¬
position of conformity.
 Notes

Introduction

1. This attack is epitomized by the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996, which limited aid to families in
poverty in order to “end the dependence of needy parents.” Pub. L. No.
104—93, §40i(a)(2), no Stat. 2105 (1996). See also Elinor Burkett, The Baby
Boon (Free Press, 2000) (arguing that childless workers are stigmatized and
exploited, in order to accommodate parents in the workplace). For a dis¬
cussion of Burkett’s book, see Andrew Hacker, “The Case Against Kids,”
The New York Review of Books, November 30, 2000, at 12.
2. Not all children are viewed as presumptively private. As docu¬
mented in Martha Albertson Fineman, The Neutered Mother, the Sexual Fam¬
ily, and Other Twentieth Century Tragedies (Roudedge, 1995) [herein after The
Neutered Mother], children are a matter of public concern when they are lo¬
cated in public (as contrasted with private) families—families that are
poor, thus not self-sufficient, or defective in form, such as headed by a sin¬
gle mother. These families are subjected to regulation and control because
of the public interest in the children within them who are deemed endan¬
gered by their family’s nonconformity to societal norms in regard to mar¬
riage and financial stability.
3. See Personal Responsibility and Work Opportunity Reconciliation
Act of 1996, supra note 1, §408^(5) (seeking to “solve” teenage parenting
concerns by requiring denial of public assistance to teenage parents unless
they live with their parents—in other words, sending them back to their
families).
 NOTES TO PAGES 4-II
310
♦
*

Chapter One: Exploring Foundational Myths

1. Looking at inheritance practice from a comparative perspective

can be useful. In the United Kingdom, the inheritance is taxed to the re¬
cipient and the estate is, therefore, “tax-free.” This would remove the
kind of objections based on the idea that inheritance tax is a “death tax”
that accompanied the recent reforms in the United States. Also of inter¬
est is the fact that the United States is virtually alone in not requiring a
testator to leave a certain percentage to his or her children. We allow par¬
ents to disinherit their children, a practice considered “unnatural” (or at
least bad social policy) in other industrialized democracies where there is
a strong sense of intergenerational obligation and responsibility and less
attention to individual autonomy and testamentary freedom.
2. Jeanne Brooks-Gunn and GregJ. Duncan, “The Effects of Poverty
on Children,” The Future of Children: Children and Poverty, Summer/ Fall
1997, at 55 (reporting that in recent years about one in five American
children [12 to 14 million] have lived in families with incomes below the
poverty line). The 2000 census reports that the number of people under
the age of eighteen living in poverty is 16.3 percent. United States Cen¬
sus 2000, aiwww.census.gov (visited June 1, 2003). Whichever figure is
used, the number is appalling in such a wealthy country, particularly one
that aspires to democratic and egalitarian principles. 2002 Annual Demo¬
graphic Supplement to the Current Population Survey.
3. The 2000 census reports that the number of people age sixty-five
and older living in poverty is 10.1 percent. United States Census 2000, supra
note 2. See also Beth Haller, “Disability Rights—and Wrongs,” at
www.horizonmag.com/poverty/disability-rights.asp (last visited June 3,
2003); “The Disability Equation: Does Disability = Poverty?” (Madeline
S. Bergstrom, ed.) aiwww.horizonmag.com/poverty/disabilitytnt.asp (last
visited June 1, 2003).
4. The 2000 census estimates the number of Americans without
health insurance is 41.2 million. United States Census 2000, supra note 2.
5. William W. Cobb, The American Foundation Myth in Vietnam passim
(University Press of America, Inc., 1984J; Gilbert Morris Cuthbertson,
Political Myth and Epic 173 (Michigan State University Press, 1975); Tom
Garvin, Mythical Thinking in Political Lfe: Reflections on Nationalism and Social
Science 12, 22-23 (Academia Press, 2001).
6. The New Webster’s Encyclopedic pictionary of the English Language (Ran¬
dom House, 1997).
 NOTES TO'" PAGES II-I3 311
r

7. Cobb, supra note 5, at 2, 12, 157; Garvin, supra note 5, at 16.

8. Cobb, supra note 5, at 3.
9. This theory is associated with John Locke.
10. In fact, at the time of the establishment of the American Constitu¬
tion, many Americans were indifferent or strongly opposed to
the document and the ideas it embodied. Rhode Island only ratified the
Constitution after being threatened with blockades and invasions.
11. Henry Tudor, Political Myth 14,17 (Praeger Publishers, 1972).
12. Id. at 16-17.
13. Id. at 15.
14. Id. at 97.
15. Cobb, supra note 5, at 188.
16. Mircea Eliade, Myth and Reality 2, 5-6 (Harper & Row, 1975) (1963).
17. Tudor, supra note 11, at 23—24.
18. Tudor, supra note 11, at 16-17, 91- One °f the most famous political
myths in the ancient world was the myth of the foundation of Rome. This
was a story, based on the legend of Aeneas, that the Romans were actually
the descendents of the Trojans. Since the Trojans had been enemies of the
Greeks, this political myth was used to justify the Roman wars against and
triumph over Greece, since the Romans could believe they were avenging
ancient wrongs. As time passed, and the myth was handed down through
generations, it evolved to meet the changing political needs of Roman so¬
ciety. The story of Trojan descent could be interpreted in numerous ways,
and could be used for many purposes, even if they were contradictory. By
the time of the Punic Wars, the Romans had assimilated a significant
amount of Greek culture, and considered Rome to be a center of Hellenic
civilization. As a result, they used the story of their Trojan origins to in¬
voke the Homeric past, and declare themselves an integral part of the
Greek world. Thus, the Roman foundation myth could be used to support
anti-Greek, and later pro-Greek, politics, depending on the evolving needs
of Roman society.
Foundation myths are complex and multidimensional. The
Roman claim to Trojan decent was a major component of the Roman
foundational story, but there were other facets to the myth as well. One
part of the myth was that it was Rome’s geographic location that had al¬
lowed it to rise to preeminence in the ancient world. Like the American
Founding Fathers, who established their nation on a large piece of rich
312 NOTES TO PAGES I 3 — I 7
i

and fertile land, protected from hostile enemies by the surrounding

oceans, the founders and mythical ancestors of the Romans had wisely
chosen to situate the city on the banks of a navigable river, essential
for commerce and travel, yet far enough inland to be safe from foreign
attack.
19. Cobb, supra note 5, at 18; Cuthbertson, supra note 5, at 174; Colin
Grant, Myths We Live By ix (University of Ottawa Press, 1998).
20. Cuthbertson, supra note 5, at 16.
21. Tudor, supra note n, at 72.
22. Ennius, Ann. 467.
23. Cuthbertson, supra note 5, at 197.
24. Tudor, supra note 11, at 91.
25. Cobb, supra note 5, at 188.
26. Cuthbertson, supra note 5, at 8.
27. Tudor, supra note 11, at 15-16.
28. We see this in American constitutional law with the doctrine of
strict construction of the constitutional intent of the framers. Justice Scalia
and others would have us use only the original intent (as if that could be
determined) as a guide, not the individual perceptions of contemporary
judges of what should be considered fair or just.
29. Susan Sterett, Service and Charity: Social Welfare in the States (forthcom¬
ing, introduction, on file with the author).
30. Amy Dru Stanley, From Bondage to Contract 9 (Cambridge University
Press, 1998).
31. Id. at 9, 105, passim.
32. Cobb, supra note 5, at 11, 18-19, passim.
33. Tudor, supra note 11, at 121.
34. Id. at 126-7.

35. Id. at 91. ^

36. Id. at 9.

37. Jack Zipes has conducted extensive research on myths and fairy
tales and concludes that they play a significant role in educating, socializ¬
ing, and civilizing both children and adults. Jack Zipes, Fairy Tale as Myth:
Myth as Fairy Tale 8, 17, passim (University Press of Kentucky, 1994); Jack
Zipes, Happily Ever After: Fairy Tales, Children, and the Culture Industry (Rout-
ledge, 1997)- See also Cuthbertson, supra note at 197.
 NOTES TO (*AGES 25-34
3>3
r

38. Values are also viewed as exceptional or unique characteristics of a

society—used to favorably distinguish us from others. Thus, we see values
associated with certain polidcal stances expressed as “American” (or “un-
American”). Values language can also be used to obliterate different or
competing values such as when a certain form of family is asserted to ex¬
press “American family values.”
39. Cobb, supra note 5, at 17; Cuthbertson, supra note 5, at 2,14.
40. Cuthbertson, supra note 5, at 5; Garvin, supra note 5, at 15.
41. Cobb, supra note 5, at 33; Garvin, supra note 5, at 26.
42. Zipes, Fairy Tale as Myth, supra note 37, at 4, 5.
43. More than ten million copies of The Seven Habits of Highly Effective
People have been sold since its publication in 1989. The Franklin-Covey or¬
ganization markets books, cassette tapes, electronic and paper planners,
classes, seminars, other training opportunities, and “accessories” at www.
franklincovey.com (visitedJune 1, 2003).
44. Stephen R. Covey, The Seven Habits of Highly Effective People (Simon &
Schuster, 1989).

45. Id. at 50.

Chapter Two: Dependency and Social Debt:

Cracking the Foundational Myths

1. Other recent political decisions also reflect a trend toward the

adoption of policies that rely on the individual and remove responsibility
from government, thereby increasing the possibility of income inequities.
Instead of relying on Social Security supplemented by employer-funded
pension plans, people are being encouraged to arrange for their retire¬
ment through 401 (k) savings plans and private investments free from gov¬
ernmental oversight and protection.
2. Louis Uchitelle, “A Shift to Self-Reliance: Proposals to Revamp So¬
cial Security Reflect the Larger National Trend,” New York Timer, January

i3> !997>Ai5-
3. Even women on welfare themselves perpetuate a feeling of shame
and stigmatize their condition. George W. Bush used the statement of a
woman who had worked her way ofT welfare to illustrate the point: “the
success of it is my children see me go to work every day. And that makes
them go to school every day, because they see mama isn’t staying at home.
President Bush applauded this particular mother by stating, “The ability
3J4 NOTES TO PAGES 34~39
♦

for somebody to realize kind of an independent life, less dependent upon

government not only affects that person but also affects a lot of other peo¬
ple, starting with the children-^-starting with the children.” George W.
Bush, “Remarks to the North Carolina Chamber of Commerce,” Febru¬
ary 27, 2002, available at LEXIS, Federal News Service.
4. See Peter Edelman, “Prepared Testimony of Peter Edelman, Profes¬
sor of Law, Georgetown University Law Center, Before the Senate
Health, Education, Labor and Pensions Committee,” February 14, 2002,
available at LEXIS, Federal News Service.
5. Juliet Schor argues that because domestic work has been excluded
from the realm of labor, that work is taken for granted, and competitive al¬
ternatives are artificially inflated. Schor quotes economist Nancy Folbre
suggesting that in colonial times, women’s household activities were not
devalued this way: “By 1900, however, [women] had been formally rele¬
gated to the census category of ‘dependents’ that included infants, young
children, the sick, and elderly.” In The Overworked American 84-5 (Basic
Books, 1992).
6. See Martha Albertson Fineman, “Limits of Privacy—The Public
Family,” in The Neutered Mother 177.
7. See Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why
Married People are Happier, Healthier, and Better off Financially 107 (Doubleday,
2000).
8. See Vicki Schultz, “Life’s Work,” 100 Columbia Law Review 1881, n. 62
(2000).
9. See Thomas Gabe et al., “Child Care Subsidies: Federal Grants and
Tax Benefits for Working Families,” in The Child Care Disaster in America:
Disdain or Disgrace? 25, 58 (Nova Science, 2001).
10. Ibid.

11. See supra note 3 (referring to ideals of hard work and self-sufficiency).
12. Ibid.

13. See Nick Gillespie, “The Kids Are Alright: The White House In¬
vents a Child Care Crisis,” Reason, December 1997, available at http://
reason.com/9801/ed.nick.shtml (last visited June 1, 2003); Dearborn,
“Press Release: Libertarians Give Mixed Reviews to Day Care Reform
Proposals,” Libertarian Party of Michigan, at www.mi.lp.org/press/
112299.htm (last visited June 1, 2003).

14. See Gillespie, supra note 13. It seems as though Gillespie-type argu-
 NOTES TO PAGES 39-43 3*5
r

merits are not challenging the mythological role of the family, but still en¬
visioning the individual ideal since it depends on the individual choice of
parents to result in a satisfactory solution.

15. See Edelman, supra note 4.

16. See Kimberly Porrazzo, The Nanny Kit 12 (Penguin Books, updated
ed., 1999). (“Nannies’ salaries vary greatly from region to region. In the
northeast, nannies are often paid $400.$500 or more per week. In Cali¬
fornia, however, the average nanny’s weekly salary is closer to $300-^350
per week. Within Southern California, wages are higher in Los Angeles
County than in Orange County or San Diego County, probably because
Orange and San Diego counties are close to the Mexican border and a
large number of illegal immigrants are seeking domestic work and will ac¬
cept a lower salary.”)
17. See Katherine M. Frank, “Theorizing Yes: An Essay on Feminism,
Law, and Desire,” 101 Columbia Law Review 181, 183-7 (2001).

18. See id., at 185.

ig. See Suzanne Lamorey et al., Latchkey Kids: Unlocking Doors for Children
and Thar Families 19 (Sage Publications, 2nd. ed., 1999) (arguing that the
major myth that expects mothers to stay at home and be the primary care¬
taker of children arises from society’s negative attitude toward maternal
employment, divorce, day care, single parenting, and latchkey children).

20. Porrazzo, supra note 16. (Approximately 60 to 70 percent of those

who videotape their nannies end up firing them. One parent found a
nanny to be taking wonderful care of the child, but witnessed the nanny
saying, “I take much better care of you than your mother.”)

21. Deborah Belle, The After-School Lives of Children: Alone and with Others
While Parents Work 7 (Lawrence Erlbaum Associates, 1999). (“The U.S. pub¬
lic school day is substantially shorter than the full-time work day and
shorter than the school day in many other nations of the world. The
school year is also interrupted by frequent holidays, early release days, and
closings for inclement weather, and then concluded with a lengthy sum¬
mer vacation, all of which vastly exceeds the vacation allotments of most
employed parents. Nor are extended day or after-school programs avail¬
able in many communities or to many children who need them.”)

22. See Frank, supra note 17, at 190-91.

23. See Suzanne W. Helburn and Barbara R. Bergmann, America’s Child
Care Problem 98 (St. Martin’s Press, 2002). See also Belle, supra note 21, at 12.
3l6 NOTES TO PAGES 45-49
«

24. See Helburn and Bergmann, supra note 23. (When a family at or near
the poverty level is looking for child care, it will obviously look for the
cheapest available, which is most likely to be unlicensed care; furthermore,
if there are any questions as to the quality, many families in this situation
would resolve them in favor of cheapness.)

25. See Helburn and Bergmann, supra note 23. (Two parents working at
minimum wage, for fifty-two forty-hour weeks, with two preschool chil¬
dren earn $27,962 in disposable income—after taxes. With the official U.S.
poverty-line living expenses set at $17,493, the family only has $10,496 to
spend on child care estimated to cost between $9,980 and $11,870.)

26. See Helburn and Bergmann, supra note 23. (One parent, with two
preschool children, working at minimum wage for fifty-two forty-hour
weeks, with government benefits earns $15,736 in disposable income. With
official U.S. poverty-line living expenses set at $13,898, the mother has
only $1,838 to spend on care estimated to cost between $9,980 and
$11,870.)

27. See Waite, supra note 7, at 99.

28. See Edelman, supra note 4.

29. See Belle, supra note 21, at 7.

30. See Waite, supra note 7, at 99.

31. See Victor R. Fuchs, Women’s Quest for Economic Equality 60-64 (Har¬
vard University Press, 1998) (discussing the hidden costs of children for
women in the workplace); Shultz, supra note 8, at 1881, 1894 (arguing that
women do not choose lower-paying, lower-status jobs because of their
heavier family obligations, but rather that the segregation of women into
these jobs forces women into household labor).

32. See Julie Novkov, “A Deconstruction of Motherhood and a Recon¬

struction of Parenthood,” 19 New York University Review Law and Social Change
!55> 165-66 (1991) (discussing the role of working mothers).
33. See Belle, supra note 21, at 75-8.

34. See Martha Albertson Fineman, • “Cracking the Foundational

Myths: Independence, Autonomy, and Self-Sufficiency,” 8 American Univer¬
sity Journal of Gender, Social Policy and the Law 18 (2000).
35. Ibid, at 13, 21, n. 15.

36. Ibid, at 19.

37. See generally Christine N. Cimini,' “Welfare Entidements in the Era of

Devolution,” Georgetown Journal on Poverty Law and Policy (Winter 2002).
 38. See Kenneth A. Cook, “The Cash Croppers,” at www.ewg.org/
pub/ home/reports/croppers/chapter_i.html (visitedJune 1, 2003).

39. See Daniel S. Goldberg, “Tax Subsidies: One-Time vs. Periodic, an

Economic Analysis of the Tax Policy Alternatives,” 49 Tax Law Review 305,
306—307 (1994) (discussing the elements of tax subsidies). See also Martha
McCluskey, “Subsidized Lives and the Ideology of Efficiency,” 8 American
University Journal of Gender, Social Policy and the Law (2000).

40. Torrey, as quoted in Robert B. Reich and John D. Donahue, New

Deals: The Chrysler Revival and the American System (Times Books, 1985), 50. A
brief excursus back to 1996 provides an illuminating example of how rhet¬
oric surrounding subsidies is more muddied than one might expect. Presi¬
dent Clinton, along with then-Secretary of Labor Reich and a
Republican-led Congress, promised to curtail corporate welfare. (See e.g.
Stephen Moore and Dean Stansel, “How Corporate Welfare Won: Clin¬
ton and Congress Retreat from Cutting Business Subsidies,” Cato Policy
Analysis No. 254 [1996].) Reich championed the cause, proclaiming, “If
we’re asking middle-class people to work smarter and welfare mothers to
play by the rules, it seems important to ask corporate America to get off
welfare and play by the rules as well.” (As quoted in Brian Kelly, “The Pork
That Just Won’t Slice; Everything Gets Cut—But Not Corporate Wel¬
fare,” Washington Post, December 10, 1995.).
The strange consensus included Ralph Nader as well as the Cato
Institute, yet the government ultimately failed to make good on its prom¬
ise. In shocking frankness, Republican Representative Scott Klug of Wis¬
consin admitted, “We have not shown the same kind of fervor in cutting
corporate welfare as we have in the social area. (Quoted in Kelly, 1 he
Pork That Just Won’t Slice,” at C4.)
41. See Douglas MacKinnon, “The Welfare Washington Doesn’t
Know,” New York Times, May 21, 2002, at A21 (discussing how most con¬
gressmen cannot comprehend the amount of shame and pain that comes
with being in poverty, or the frustration of trying to help yourself out of it).

42. See “Making Hay,” New Republic, May 20, 2002, at 9 (pointing out
that President Bush is not keeping with his market-driven approach to
agriculture).
43. See Dick Lugar, “The Farm Bill Charade,” New York Times, January
21, 2002, at A15. (The majority of payments in most states go to the
top tenth of farmers. Farms in just six states will take almost half of the
federal payments. According to the Times, “Ineffective agricultural policy
has, over the years, led to a ritual of overproduction in many crops and
3l8 NOTES TO PAGES ^2~6l
1

most certainly in the heavily supported crops of corn, wheat, cotton,

rice and soybeans and the protected specialty products like milk, sugar
and peanuts.”) See also Elizabeth Becker, “Farmers Market Program
Wins Support but Loses Subsidy,” New York Times, March 17, 2002,
at 32.
44. See “Statement by the President,” Office of the Press Secretary, May
2, 2002, at www.whitehouse.gov/news/releases/2002/05/ 20020502.html
(visited June 2003).
45. Laura D’ Andrea Tyson, “The Farm Bill Is a $200 Billion Disaster,”
Business Week,June 3, 2003, at 26.
46. See Bush, supra note 3 (referring to ideals of hard work and self-
sufficiency).
47. See Center for Law and Social Policy, at www.clasp.org/ pubs/
TANF/finalregs.html (last visited June 1, 2003). The proposed bill would
also require welfare recipients to work forty hours a week, up from the cur¬
rent requirement of thirty hours per week; Personal Responsibility, Work,
and Family Promotion Act of 2002, H.R. 4737, 107th Cong. (2002); Sarah
Lueck, “House Passes Bill Lengthening Workdays of Welfare Recipients,”
Wall Street Journal, May 17, 2002 (quoting Health and Human Services Sec¬
retary Tommy Thompson, who was a key player in the overhaul of the
state welfare system when he was governor of Wisconsin).
48. This family cap is being challenged in court. See Leslie Brody, “Wel¬
fare Reform in Spotlight as Milestone Nears,” New Jersey News, March 24,
2002 (20 percent of the families no longer on welfare in New Jersey are liv¬
ing in poverty).

Existing Societal Arrangements

1. See Nancy F. Cott, “Giving Character to Our Whole Civil Polity:

Marriage and the Public Order in the Late Nineteenth Century,” in U.S.
History as Women’s History 107 (L.K. Kerber, A. Kessler-Harris, and K.K.
Sklar, eds., 1995) (giving a historian’s perspective on the family as an insti¬
tution). Professor Cott states that “one might go so far as to say the institu¬
tion of marriage and the modern state have been mutually constitutive .
one of the principal means that the state can use to prove its existence . . .
is its authority over marriage.” Id. at 109.

2. I use this term to indicate a reqiprocity or mutualism, although the

term “containment” might also be appropriate. Containing family within
 NOTES TO P'XgES 6 I - 7 6 3X9
*

its traditional form and function is certainly the goal of some political ac¬
tors.

3. Amitai Etzioni, “A Moderate Communitarian Proposal,” Political

Theory 24, no. 2 (May 1996) at 3.
4. See, generally, chapter three.

Chapter Three: The Family in the Rhetoric of Civil Society—

Privileging Marriage

1. Council on Civil Society, “A Call to Civil Society: Why Democracy

Needs Moral Truths” 7 (1998).
2. The National Commission on Civic Renewal has sponsored a series
of scholarly working papers and created an Index of National Civic
Health. National Commission on Civic Renewal, “A Nation of Specta¬
tors: How Civic Disengagement Weakens America and What We Can Do
About It” (1998).
3. Council on Civil Society, supra note 1; National Commission on
Civic Renewal, supra note 2.
4. Council on Civil Society, supra note 1, at 65, 66; National Commis¬
sion on Civic Renewal, supra note 2, at 29.
5. Council on Civil Society, supra note 1, at 4—6: National Commission
on Civic Renewal, supra note 2, at 23-36, 45.
6. Council on Civil Society, supra note 1, at 4-6, 19-26; National Com¬
mission on Civic Renewal, supra note 2, at 5.
7. David S. Broder, “Should the Government Be in the Business of
Promoting Marriage?” at www.mncaa.orgMedia/GovPromotMarriage
040102.htm (last visited June 1, 2003).
8. This chapter will use the report of the National Commission on
Civic Renewal as the basis for a general criticism of the civil society move¬
ment in regard to its positioning and consideration of the family. See Na¬
tional Commission on Civic Renewal, supra note 2. Most of the major
players in the civil society debate were associated with the Commission. See
id. at 65, 66. I am using “civil” and “civic” as interchangeable terms re¬
flecting the idea that individuals live a secular collective or corporate life.

g. Id. at 5.
10. Ibid, (quoting Andrew Kohut, Pew Research Center for the People
320 NOTES TO PAGES 7^6 79

%
and the Press, “Deconstructing Distrust: How Americans View Govern¬
ment” (1998).
11. Id. at 6.
12. Id. at 10.
13. Id. at 7 (citing Daniel Yankelovich, “How Changes in the Economy
Are Reshaping American Values,” Values and Public Policy [Henry J. Aaron
et al, eds., 1994]). This seems to be particularly ironic given that the impli¬
cations of current economic arrangements on civic health are not seri¬
ously considered in the Commission’s Final Report.
14. National Commission on Civic Renewal, supra note 2, at 20.
15. Council on Civil Society, supra note 1, at 7.
16. National Commission on Civic Renewal, supra note 2, at 13.
17. Id. at 24.
18. Id. at 13.
19. SeeLovingv. Virginia. 87 S.Ct. 1817 (1967) (holding that statues barring
interracial marriage violated the equal protection and due process clauses
of the Fourteenth Amendment). It is interesting to note, however, that
South Carolina and Alabama retained antimiscegenation clauses in their
state constitutions until 1998 and 2000, respectively, despite this Supreme
Court holding.
20. “No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or judicial
proceeding of any other State, territory, possession, or tribe respecting a
relationship between persons of the same sex that is treated as a marriage
under the laws of such other State, territory, possession, or tribe, or a right
or claim arising from such relationship.” Defense of Marriage Act, 28
USC1738C (1996).
21. National Commission on Civic Renewal, supra note 2, at 41.
22. Id.
v
23. This second objection gives rise to some confusion in considerations
of civil society— it is not always clear who is in and who is outside of civil
society. At one point, the Commission defines civil society as “meaning
free markets and private associations,” suggesting that all nongovernmen¬
tal institutions might be considered civil. Id. at 43, n. 16. At another point,
however, civil society is seemingly restricted to “the network of voluntary
associations and activities.” Id. at 39.
 notes to pAsges 79-80 321

24. Id. at 23.

25. Council on Civil Society, supra note 1, at 18.
26. Id. at 5. This use of the term “morality” is different than that in the
report of the Commission. The Commission’s report opted for morality
“based not on any particular denominational creed, but on the constitu¬
tional faith we share—in the moral principles set forth in the Declaration
of Independence, and the public purposes set forth in the Preamble to the
Constitution.” National Commission on Civic Renewal, supra note 2, at 12.
The Council’s report cites as indications of a weakened morality “behav¬
ior that threatens family cohesiveness,” although it also noted weakening
morality was evidenced by “uncivil” behavior and behavior that “violates
the norm of personal responsibility.” Council on Civil Society, supra note 1,
at 5. Examples of moral decline included unwed childbearing, extramari¬
tal affairs, and easy sex as a normal part of life. Uncivil behavior included
children’s disrespecting adults, declining loyalty between employers and
employees, and the absence of common courtesy. A pop star’s announcing
a preference for single motherhood is offered as one example of violating
the norm of personal responsibility. Id.
27. The Council writes that “the steady break-up of the married couple
child-raising unit [is] the leading propeller of our overall social deteriora¬
tion. . . .” Council on Civil Society, supra note 1, at 18.
28. Id. at 6.
29. Id. at 5.
30. Id. at 18; National Commission on Civic Renewal, supra note 2, at
24.
31. The Council defines civil society in part as referring “specifically to
relationships and institutions that are neither created nor controlled by the
state.” Council on Civil Society, supra note 1, at 6. The Commission indi¬
cates “the institutions of civil society are organic, not mechanical, and can
at best be nurtured, not engineered.” National Commission on Civic Re¬
newal, supra note 2, at 12. One would assume that they cannot be legis¬
lated, either.
32. Council on Civil Society, supra note 1, at 19.
33. In Arkansas, Arizona, and Louisiana, persons may now enter a
covenant marriage contract, which encourages them to seek marriage
counseling if they are having marital difficulty and limits their ability to di¬
vorce to just a few instances, such as adultery, physical or sexual abuse, or
the commission of a felony by one spouse.
322 NOTES TO PAGES 8 I - 8 3
«

34. Council on Civil Society, supra note 1, at 20.

35. Id. at 25.

36. Id. at 24-5.
37. Conclusions about popular notions of morality based on opinion
surveys may be questioned, particularly if they are the basis for legal re¬
forms with the potential to make people in unhappy, and sometimes vio¬
lent and emotionally abusive, marriages less able to escape.
38. William A. Galston, “A Liberal-Democratic Case for the Two-
Parent Family,” 1 The Responsive Community 14 (1990-gi).
39. Id.
40. Id. at 15-6.
41. Id. at 16.
42. Id. Galston also notes this position in his book. See William A. Gal¬
ston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State 283-87
(Cambridge University Press, 1991).
43. Galston, supra note 38, at 15.
44. Id.

45. See Terry Lugalia, United States Department of Commerce. Series

P-23, No. 181, “Households, Families, and Children: A 30-Year Perspec¬
tive” 14 (1992).

46. See Authur J. Norton and Louisa F. Miller, United States Depart¬
ment of Commerce, “Marriage, Divorce, and Remarriage in the 1990’s”
!-4 (1992).

47. Theodore Caplow, American Social Trends 63 (Harcourt Brace Jo-

vanovich, 1991). Caplow questions whether there is even a crisis of the
family. Despite the fact that Americans have been told the family is in cri¬
sis, they tend to see their own families as happy and successful.
48. Galston, supra note 38, at 15.
49. Id.
50. Id. at 16-7.

5 1- U.
52. Id. at 16.

53. Id. at 16-7. Galston continues, “[cjonversely, family disintegration is

a major reason why after a decadc-lpng economic expansion—the poverty
rate among children is nearly twice as high as it is among elderly Ameri¬
cans.” Id. at 17.
 NOTES TO P^GES 83-86 323

54. Id. at 17.

55 - Id-

56. Id. at 18 (emphasis in original;.

57. Id. at 17.
58. Id.
59. /<f. at 19. He is also clear that he does not “advocate a return to the
single-breadwinner ‘traditional’ family of the 1950s.” Id.
60. Id. at 20.
61. Id. at 21-2 (emphasis in original).
62. Id.
63. Id. at 23-4.
64. Id. at 16-7.
65. .See Judith Stacey, In the Name of the Family (Beacon Press, 1996).
66. Id. at 59.
67. Henry Ricciuti, “Single Parenthood and School Readiness in
' White, Black, and Hispanic 6- and 7-Year-Olds,” 13 Journal of Family Psy¬
chology 450 (1999)- School readiness was found to be about the same in
large samples of single- and two-parent families.
68. Id.
69. E. Mavis Hetherington and John Kelly, For Better or For Worse 7 (W. W.
Norton & Company, 2002).
70. See id. at 5.
71. See id. at 7.
72. Andrew Lister, “A Family Affair: I he Causal Basis of Communitar¬
ian Family Values,” presented at the 1999 Annual Meeting of the Ameri¬
can Political Science Association (September 2-5,1999). Lister considered
Judith Stacey’s charge about the selection and exaggeration of only some
social science information, finding “a good deal of evidence of exaggera¬
tion.” Id. at 11. Lister states, however, that the “best research does seem to
indicate that growing up in a single-parent family Is not good for children.
Lister then sets forth his analysis of the difficulties with such studies.
73. Id. at 12.
74. Id.
75. Id. at 12—3. (Caveats are from S. McLanahan and G.D. Sandefur,
Groiving Up With a Single Parent: What Hurts, What Helps [Harvard University
Press, 1994])-
 324 NOTES TO PAGES 86~gO
t

76. Id. at 23.

77. Iris M. Young, “Mothers? Citizenship, and Independence: A Cri¬

tique of Pure Family Values,” 105 Ethics 545 (1995).
78. Pepper Schwartz, “Gender and the Liberal Family,” 1 The Responsive
Community 87 (1990-91).

79. Susan Moller Okin, Justice, Gender, and Family 139 (Basic Books,
I9^9)-
80. Id.

81. Young, supra note 77, at 545.

82. Susan B. Apel, “Communitarianism and Feminism: The Case

Against the Preference for the Two-Parent Family,” Wisconsin Women's Law
Journal 1, 10-14 (1995) (citing statistics demonstrating the extent of vio¬
lence in the homes: “Forty-one percent of all women who are murdered
are murdered by their husband; violence is the leading cause of injury to
women between the ages of fifteen and forty-four, more common than car
accidents and cancer deaths combined”; and “in 1989, more women were
abused by their husbands than got married”).

83. See Daniel H. Weinberg. United States Department of Commerce,

Pub. No. P60-191, “A Brief Look at Postwar U.S. Income Inequality,” Cur¬
rent Population Reports: Household and Economic Studies 1 (1996); Rodger Doyle,
Income Inequality in the U.S.,” Scientific American (June 1999).
84. Urie Brofenbrenner et ah, The State of Americans 36 (Free Press
1996).

85. Center for the Future of Children, “Executive Summary,” The Fu¬
ture of Children: Children and Poverty, Summer/Fall 1997, at 2—3.

86. Lee Rainwater and Timothy M. Smeeding, “Doing Poorly: The

Real Income of American Children in a Comparative Perspective” (Lux¬
embourg Income Study Working Paper No. 127, 1995).
87. Id. at 10.
88. Id. at 21.
89. Id. V >.

90. Council on Civil Society, supra note 1, at 4. Perhaps this attention to

inequality reflects the fact that one of the Council’s sponsors is the Univer¬
sity of Chicago Divinity School.
91. Id.
92. Id. at 5.
 NOTES TO PAGES 9 O-9 2 325
r

93. Id. at 7.
94. National Commission on Civic Renewal, supra note 2, at 24.
95. See Brofenbrenner, supra note 84, at 56; Weinberg, supra note 83, at 1;
Doyle, supra note 83.
96. Kathryn Larin and Elizabeth McNichol, Center on Budget and
Policy Priorities, “Pulling Apart: A State-by-State Analysis of Income
Trends,” www.cbpp.0rg/pa-4.htm (visitedJune 1, 2003).
97. National Commission on Civic Renewal, supra note 2, at 24.
98. Brofenbrenner, supra note 84, at 66.
99. Id.
100. See Nina Bernstein, “Poverty Rate Persists Despite Boom: Twice as
High as Nation. Analysis of Data Shows,” New York Times, October 7,1999,
at Bi.
101. Jeanne Brooks-Gunn and GregJ. Duncan, “The Effects of Poverty
on Children,” The Future of Children: Children and Poverty, Summer/Fall 1997,

at55-
102. Center for the Future of Children, supra note 85, at 3.

103. Id.
104. Brooks-Gunn and Duncan, supra note 101, at 57. This report collects
and assesses the available research in regard to each of these dimensions of
the well-being of children in poverty. The authors conclude drat income
can substantially influence children’s well-being, finding that the associa¬
tions between income and child outcomes are more complex and varied
than is suggested in simple tables. “Family income seems to be more
strongly related to children’s ability and achievement-related outcomes
than to emotional outcomes. In addition, the effects are particularly pro
nounced for children who live below the poverty line for multiple years
and for children who live in extreme poverty.” Id. at 67-8.

105. Caplow, supra note 47, at 59.

106. Id.
107. Id. Even two-parent families are experiencing poverty, so revering
the two-parent family as an ideal economic unit is not the answer.
108. Kristin Downey Grimsley and Jacqueline L. Salmon, “For Working
Parents, Mixed News at Home: Children Praise Them but Note Stress,
Washington Post, September 27, i999> at Ai-

109. Id.
326 NOTES TO PAGES 92-98
«

no. Id.
hi. Id.
112. A recent study by Cornell sociologist Phyllis Moen reports that cou¬
ples that feel burdened by long work hours, demanding jobs, and conflict
between work and personal life report the lowest quality of life among
working couples surveyed. See “Working Couples Burdened by Time at
Work Say Their Lives Are Beset by Stress, Conflict and Overload, Cornell
Sociologist Reports,” Cornell University News, at www.news.cornell.edu/
releases/Jangg/AAAS.couples. strategies.html (last visited June 1, 2003).
113. Richard K. Caputo, “Economic Well-Being in a Youth Cohort,”
Families in Society: The Journal of Contemporary Human Services, January 1,1998,
at 83.

114. John Ehrenberg, Civil Society: The Critical History of an Idea 246 (New
York University Press, 1999), 240.
115. Id. at 247.
116. Id.

117. See Lugalia, supra note 45.

Chapter Four: Why Marriage?

1. Predictability is one of the major objectives of family law reform.

See American Law Institute, Principles of the Law of Family Dissolution: Analy¬
sis and Recommendations (May 16, 2000), 42.

2. Developments in the Law: Legal Responses to Domestic Violence”

106 Harvard Law Review 1498, 1501-04, 1528-29, 1534-43 (1993); Harry D.
Krause et al., Family Law: Cases, Comments and Questions 152 (West Group, 4th
e6., 1996) (under common law, a husband and wife cannot sue each other
in tort).

3. Trammel v. United States, 445 U.S. 40 (1980); see also Frances E. Olson,
“The Family and the Market: A Study of Ideology and Legal Reform,” 96
Harvard Law Review 1497, 1504-05 (1983). •' *

4. She may be able to use the doctrine of “necessaries” if she is able to

persuade a third person, such as a merchant, to provide her with essential
goods or services without her husband’s consent and knowledge. In those
instances, however, the action is the merchant's, not the spouse’s. D. Kelly
Weisberg and Susan Frelich Appleton, Modern Family Law: Cases and Materi¬
als 262-5 (Aspen, 2nd ed., 2002).
 A . ,,

NOTES TOWAGES 98 — IO5 327

5. See McGuire v. McGuire, 157 Neb. 226 (Sup. Ct. of Neb. 1953), discussed
in Martha Albertson Fineman, “What Place for Family Privacy?” 67 George
Washington Law Review 1207, 1209 (1999).
6. See Lloyd Cohen, “Rhetoric, the Unnatural Family, and Women’s
Work,” 81 Virginia Law Review 2275, 2286 (1995). I think this argument
raises an important empirical question—do men crave intimacy, not only
sexual, but that of the connection with children? I believe they do, but are
hampered in acting on that need in today’s society, which assigns them to
the workplace as the economic provider.
7. See also Randy Thornhill and Craig Palmer, A Natural History of Rape:
Biological Basis of Sexual Coercion (MIT Press, 2000).
8. Prince v. Massachusetts, 321 U.S. 158 (1994). Note that most of the de¬
bate about the state’s interest in precluding same-sex couples from the in¬
stitution of marriage focused on the negative effect this would have on
children (this was true in both the Hawaii and Vermont cases). The other
arguments focused on the possibility that same-sex marriage would
weaken “real” marriage as an institution.
9. 127 U.S. 190, 205-6 (1888) (“[M]arriage, as creating the most impor¬
tant relation in life [has] more to do with the morals and civilization of a
people than any other institution . . .”).
10. 98 U.S. 145,165 (1878) (“Upon it society may be said to be built, and
out of its fruits spring social relations and societal obligations and duties,
with which government is necessarily required to deal”).
11. Benjamin Franklin: “only a virtuous people are capable of free¬
dom.” Samuel Adams: “neither the wisest constitution nor the wisest laws
will secure the liberty and happiness of a people whose manners are uni¬
versally corrupt.” John Adams: “our constitution was made only for a
moral and religious people. It is wholly inadequate to the government of
any other.” As quoted in Lynn Wardle, “The Bonds of Matrimony and the
Bonds of Constitutional Democracy,” draft of comments made at Hofstra
University, March 5, 2003 (on file with author), 3.

12. Id.

13. Id.
14. Baker v. State, 744 A.2d 864 (Vt. 1999) (holding that the State of Ver¬
mont may not exclude same-sex couples from the benefits and protections
that its laws provide to opposite-sex married couples).
15. As the Hawaii Supreme Court noted in Baehr v. Lewin, benefits asso¬
ciated with marriage may include (1) a variety of state income tax advan-
328 NOTES TO PAGES I O 5 ~ I I O
«

\
cages, including deductions, credits, rates, exemptions, and estimates; (2)
public assistance from and exemptions relating to the Department of
Human Services; (3) control, division, acquisition, and disposition of com¬
munity property; (4) rights relating to dower, curtsey, and inheritance; (5)
rights to notice, protection, benefits, and inheritance; (6) award of child
custody and support payments in divorce proceedings; (7) the right to
spousal support; (8) the right to enter into premarital agreements; (9) the
right to change of name; (10) the right to file a nonsupport action; (11) post¬
divorce rights relating to support and property division; (12) the benefit of
the spousal privilege and confidential marital communications; (13) the
benefit of the exemption of real property from attachment or execution;
and (14) the right to bring a wrongful death action. Baehr v. Lewin 74 Hawaii
530 (1993)-
16. Some of the critics of civil unions in Vermont, where it is now legal,
cite religious belief. See Julie Deardorlf, “Vermont Is Front Line of Gay
Marriage Fight,” Chicago Tribune, April 3, 2001, at 1. The use of history and
tradition is more common. See also Bowers v. Hardwick and state court deci¬
sions in the 1970s limiting marriages to heterosexuals often assumed mar¬
riage was by definition between a man and a woman; Martha Chamallas,
Introduction to Feminist Legal Theory 265-6 (Aspen Law & Business, 1999), cit¬
ing Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), Jones v. Hallahan, 501
S.W.2d588 (Ky. 1973), Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974).
17. See also Baker v. State, 170 Vt. 194 (1999); Baehr v. Lewin, 74 Haw. 530
(i993)-
18. Baehr v. Lewin, 74 Haw. 530 (1993).

19. James A. Henderson Jr., Richard N. Pearson, and John A. Siliciano,

The Torts Process (Aspen Publishers, Inc., 5th ed., 1999) (duty to rescue as
contrasted with strangers); Krause et al., Cases, Comments and Questions 157
(West Group, 4th ed., 1998). See also State v. Mally, 139 Mont. 599 (1961); State
v. Smith, 65 Me. 257 (1876) (spouses have an affirmative obligation to obtain
medical assistance for each other); McGuire v. McGuire, 157 Neb. 226 (Sup.
Ct. of Neb. 1953) (duty to financially support one’s spouse).

20. See Griswold v. Connecticut, 381 U.S. 47q,(iq65); McGuire v. McGuire,

Neb. 226 (Sup. Ct. of Neb. 1953).

21. John Demos, “Images of the American Family, Then and Now,” in
Changing Images of the Family 43-60 (Virginia Tufte and Barbara Myerhoff,
eds., 1979).

22. See Lynn D. Wardle. “A Critical Analysis of Constitutional Claims

 NOTES TO PAGES I I O “ I I 3 329

for Same-Sex Marriage,” 1996 BYULaw Review 1; Curt Pham. “Let’s Get
Married in Hawaii: A Story of Conflicting Laws, Same-Sex Couples, and
Marriage,” 30 Family Law Quarterly 727 (1996); Linda Nielsen, “Family
Rights and the Registered Partnership in Denmark,” 4 The International
Journal of Law and the Family 297 (1990).
23. Tavia Simmons and Martin O’Connell, “Married-Couple and
Unmarried-Partner Households: 2000,” Census 2000 Special Reports,
U.S. Census Bureau (issued February 2003); Jason Fields and Lynne M.
Casper, “America’s Families and Living Arrangements: March 2001,” Cur¬
rent Population Reports, 20-537 (2001). Commentators point out that this can
be the result of a number of factors, such as couples’ living longer after
their adult children have “left the nest,” many men and women delaying
marriage and children until they are older than in previous generations,
and the relatively more rapid growth of single-parent families over those
of married parents.
24. Families headed by single mothers account for nearly 7 percent of
all households. Single-mother families increased from 3 million in 1970 to
10 million in 2000. See Jason Fields, “Living Arrangments of Children,”
Current Population Reports (1996).
25. Simmons and O’Connell, supra note 23, at 1.

26. See Fields, supra note 24.

27. Id.
28. Simmons and O’Connell, supra note 23, at 1.
29. The categories of relatives include husband/wife, natural-born
son/daughter, adopted son/daughter, stepson/stepdaughter, brother/sis¬
ter, father/mother, grandchild, parent-in-law, son-in-law/daughter-
in-law, and “other relative—print exact relationship.” The categories of
nonrelatives include roomer/boarder, housemate/roommate, unmarried
partner, foster child, and other nonrelatives.

30. Id.
31. This book focuses on heterosexual marital relationships simply be¬
cause family law and our political sense of family have been organized
around that particular intimate configuration. Same-sex couples are or¬
ganizing around demands for access to marriage, and this is increasingly a
topic of scholarship.
32. See Simmons and O’Connell, supra note 28.

33. Maynard v. Hill, 125 US 190 (1887).

 NOTES TO PAGES I I 3 ~ I I 7
33°
t

34. Feliciano v. Rosemar Silver Co., 514 N.E.2d 1095, 1097 (1987)-
35. Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, §101,1996 HR 3734 (1996).
36. Geraldine Sealey, “Marriage Proposal Debate Looms over Bush
Plan to Spend $300 Million Promoting Unions,” at abcnews.go.com/
sections/us/dailynews/marriageo20305.html (visitedJune 1, 2003).
37. Krause et al., supra note 2, at 47.
38. Id.
39. Krause et al., supra note 2, at 533 (on annulment); Lawrence M.
Friedman, A History of American Law 204-08, 498-504 (Simon and Schus¬
ter, 2d ed., 1988) (on desertion).
40. Krause et al., supra note 2, at 534.
41. Weisberg and Appleton, supra note 4, at 533. In any case, such a bill
would only have been available to the wealthiest members of society
42. Id. at 533-4.
43. “Cause” could include adultery (in New York this was the only
cause that justified divorce in 1787), as well as “impotence, adultery, intol¬
erable severity, three years’ willful desertion, and long absence with pre¬
sumption of death” (Vermont in 1798) and “gross misbehavior and
wickedness in either of the parties, repugnant to and in violation of the
marriage covenant” (Rhode Island). Id. at 534.
44. See Krause et al., supra note 2, at 534.
45. Muhammad v. Muhammad, 622 So.2d 1239 (Miss. 1993). See also Weis¬
berg and Appleton, supra note 4, at 549. The supposed special nature of
the marital family is also significant outside of family law. Many other
areas of law incorporate and utilize the concept of the family—tort, crim¬
inal, and property laws have historically distinguished family relationships
from those of “strangers” and established exceptions or alternatives to the
general rules for family members. Such exceptions include the marital
rape exemption and various spousal privileges—domestic violence, tort
immunity, fornication, adultery, cohabitation, etc. These exceptions and
alternatives are based on the belief that a family connection signifies a spe¬
cial relationship, one that justifies a different regulatory regime.
46. See Krause et al., supra note 2, at 534. See also Glenda Riley, Divorce: An
American Tradition 8-29 (University of Nebraska Press, 1991).
47. Loving v. Virginia, 388 U.S. I (19(47) (the trial judge’s opinion stated,
“Almighty God created the races white, black, yellow, Malay and red, and
 NOTES TO PAGE? I I 7 ~ I 2 4 331
r

he placed them on separate continents. And but for the interference with
his arrangement there would be no cause for such marriages. The fact that
he separated the races shows that he did not intend for the races to
mix . . .”); Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985), cert, denied, 474
U.S. 849 (1988) (“monogamy is inextricably woven into the fabric of our
society. It is the bedrock upon which our culture is built”).
48. Bradwell v. Illinois, 83 US 130 (1873) (saying a woman cannot get ad¬
mitted to the Illinois bar).
49. Blackstone, Commentaries 442-5.
50. See generally Graham v. Graham, 33 F. Supp. 936, 938 (E.D. Mich. 1940)
(holding that a contract between spouses to change the roles of husband
and wife—the essential incidents of the marriage—is void).
51. Beatrice Gottlieb, The Family in the Western World: From the Black Death
to the Industrial Age 90-92 (Oxford University Press, 1993).
52. Krause et al., supra note 2, at 152.
53. See generally June Carbone and Margaret Brinig, “Rethinking Mar¬
riage: Feminist Ideology, Economic Change and Divorce Reform,” 65 Tu-
lane Law Review 953 (1991).
54. Lenore J. Weitzman, The Divorce Revolution 74, 164-7 (Free Press,
1985); Wirth v. Wirth, 38 A.D.2d 611 (App. Div. 1971).

Chapter Five: The Future of Marriage

1. In recent years, it seems there has been a rise in orthodoxy in Jewish

and Christian religions that is very marital family-based and biased. In¬
deed, religious imagery and sensibilities about the institution are more fre-
quendy explicidy finding their ways into policy discussions under the
presidency of George W. Bush.
2. “[1] The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of
sex.” U.S. Constitutional Amendment XIX.
3. Grace Raymond Hebard, “The First Woman Jury,” 7 The Journal of
American History 1293,1302—<03 (1913); Joanna L. Grossman. Women sjury
Service: Right of Citizenship or Privilege of Difference?” 46 Stanford Law
Reviewing 1131 (1994).
4. J.E.B. v. T.B., 114 S.Ct. 1419 (i994)-
332 NOTES TO PAGES 124-I29
1

5. “Law in Fifty States: Case Digests’^o Family Law Quarterly 811 (1997).
6. See D. Kelly Weisberg and Susan Frelich Appleton, Modern Family
Law: Cases and Materials 284-5. (Aspen, 2nd ed., 2002). See also Samuel v. Uni¬
versity of Pittsburgh, 375 F. Supp. n 19 (W.D. Pa. 1974), decision to decertify
class vacated (invalidating, on equal protection grounds, university resi¬
dency rules that assigned the husband’s domicile to the wife for determi¬
nation of tuition); Restatement (Second) of Conflict of Laws § 21 (Supp.
1988) (“rules for the acquisition of a domicile of choice are the same for
both married and unmarried persons”).
7. Stratton v. Wilson, 185 S.W. 522, 532 (1916).
8. Edwardson v. Edwardson, Supreme Court of Kentucky, 798 S.W.2d
941 (1990). See also Uniform Premarital Agreement Act (UPAA), 9C U.L.A.
35 (2001) (premarital agreements are valid unless they are “uncon¬
scionable”).
9. Simeone v. Simeone, 581 A.2d 162 (Pa. 1990).
10. Edwardson v. Edwardson, 798 S.W.2d 941 (1990) (quoting Clark v. Clark,
192 S.W.2dg68, 970 [1946]).
11. Button v. Button, 388 N.W.2d 546 (Wis. 1986).
12. In Re Marriage of Greenwald, 454 N.W.2d 34 (Wis. Ct. App. 1990).
13. American Law Institute, “Principles of the Law of Family Dissolu¬
tion: Analysis and Recommendations” (Tentative Draft No. 4, April 10,
2000) Chapter 7 (Agreements), Topic 2 (Requirements for an Enforceable
Agreement), §7.05 (Procedural Requirements), 88.
14. Id.

15. It also recognizes, however, that the state might want to reserve the
right to oversee and amend these agreements in conformance with public
policy to a much greater degree than is permitted with commercial con¬
tracts that arise in the public sphere of the market.
16. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).

17. American Law Institute, supra note 13, Chapter 6 (Domestic Part¬
ners), § 6.05 (Allocation of Domestic-Partnership Property), 55. (“Domes¬
tic-partnership property should be divided according to the principles set
forth for the division of marital property in § 4.15 and § 4.16.”)
18. Baker v. State, 744 A.2d 864 (Vt. 1999).

19. American Law Institute, supra note 13 § 6.01 (Scope), 1.

20. Id. § 6.03 (Determination that Persons are Domestic Partners).
 NOTES TO PA'feES'130-135 333
m

21. www.promisekeepers.org/faqs/core/faqscore24.htm (visited June

1, 2003).

22. www.now.org/issues/right/promise/mythfact.html (visited June 1,

2003).

23. Ephesians 5 (Darby translation).

24. www.baptist2baptist.net.
25. This discussion of the Southern Baptists is based on an article by
Chad Brand, Ph.D., “Christ-Centered Marriages: Husbands and Wives
Complementing One Another” (September 1998) at www.baptist2baptist.
net (visited June 1, 2003) (material on this site is described as “information
and inspiration on issues of importance to Baptists . . . from supporters of
the Southern Baptist Convention”).

26. Id. at 3.
27. Id. at 4 (emphasis in original).
28. www.now.org/issues/right/promise/quotes.html (visited June 1,
2003).
29. Laura Sanchez, “The Implementation of Covenant Marriage
in Louisiana.” Virginia Journal of Social Policy and the Law, 9(1) 194 (Fall
2001).
30. La. Rev. Stat. Ann. § 91273(A).

31. Sanchez, supra note 29, at 221.

32. Jason Fields and Lynne M. Casper, “America’s Families and Living
Arrangements: March 2001,” Current Population Reports P20-537 (2001).
33. This is common with prenuptial agreements and doctrinally re¬
quired (even if not typically practiced) with settlement agreements.
34. I am uncommitted to any particular set of principles for these de¬
fault rules at this time. The only requirement would be that they apply to
all types of transactions between legally competent adults and that specific
categories of affiliation not be segregated for different treatment.
35. In the past, certain types of domestic violence were not even con¬
sidered criminal behavior. Husbands had not only a right, but also a duty
to chastise and punish wives and children. Physical chastisement was con¬
sidered appropriate as long as it did not exceed certain limits. This princi¬
ple is often suggested as the basis for the “rule of thumb reform in which
a man was admonished not to beat his wife with a rod thicker than his
thumb.
334 NOTES TO PAGES 135-137
«

36. There are some moves to do this in the context of divorce already.
See Ruprecht v. Ruprecht, 252 NJ.Super.230, 599 A.2d 604 (Ch. Div. 1991) (al¬
lowing for suit for intentional infliction of emotional harm without physi¬
cal injury in the context of a divorce). See also Hakkila v. Hakkila, 112 N.M.
172, 812 P.2d 1320 (App. 1991).
37. Other areas of law that would substitute for (or be supplemented by)
the abolition of marriage and divorce rules would include bankruptcy, fi¬
duciary responsibility, equity, and ethics.

38. The exceptions to this general principle should be obvious—rape

and child molestation would still be prohibited and punished by law; crim¬
inal and civil law would still restrict and limit coercive or exploitive sexual
acts.

39. This method of reproduction might be preferred once such re¬

straints were removed. It avoids any questions about “consent” vis-a-vis
the sperm donor since he would have alienated his interest in his contribu¬
tion of reproductive material by his donation to the sperm bank.

40. This is particularly true in modern family law jurisprudence, in

which marriage is referred to as a “partnership” and some of the eco¬
nomic consequences may be tailored to individual preferences through
prenuptial contracts and/or separation agreements.

41. More specifically, these areas were set aside and governed by special
rules regulating marriage.

42. Historically, reasons for annulment had to do with sex and repro¬
duction. Typical grounds included inability to consummate the relation¬
ship, lying about pregnancy or about fertility, having a venereal disease,
and so on. The ability to function in an appropriate manner sexually is
considered by the law to be an “essential” aspect of the marriage relation¬
ship. Without that ability, the courts could determine that a real marriage
had not taken place—it was void.

43. People v. Liberta, 474 N.E.2d 567 (N.Y. 1984), cert, denied, 471 U.S. 1020
(x9^5) (holding that the marital exemption for rape no longer applies).

44. I Hale P.C. 629, as quoted in Warren u. State, 336 S.E.2d 221 (1985).

45. These rules include not only the laws of marriage and divorce, but
also large areas of criminal and civil law that bolster the institution of mar¬
riage and penalize sexual affiliations that do not conform to the marriage
model, e.g., laws against prostitution fornication, adultery, and cohabita¬
tion, as well as inheritance and probate laws, property rules, and tax laws
 NOTES TO PA&ES I37-I4.O 335
IT

that treat economic exchanges between marital partners differently than

those that occur between other members of society.
46. Kant struggled with the idea that rights to persons are akin to rights
to things—describing marital or family status as entailing “neither [a
right] to a thing nor merely a right against a person but also possession of
a person . . Kant described the objects to be acquired as three: “a man
acquires a wife, a couple acquires children, and a family acquires ser¬
vants.” We are also told that “whatever is acquired in this way is also in¬
alienable and [that] the right of possessors of these objects is the more
personal of all rights.” One outgrowth of the (obviously patriarchal) asser¬
tion that what is acquired in marriage is a woman (wife) by a possessor
(husband or man) was the common-law rule that marriage was a defense
to rape. Fortunately, the system of obligations and entitlements thus built
has been undermined. This undermining would seem to beg a reexamina¬
tion of other basic principles and assumptions.
47. The prospect of opening up all these areas to reconsideration pres¬
ents exciting possibilities for reexamination of whole areas of substantive
law in which assumptions about interactions between independent, equal,
and autonomous individuals govern terms and consequences. This proj¬
ect, however, is beyond the scope of this book, which has as its task the
reevaluation of the relationship among societal institutions in regard to
dependency.
48. Robert Mnookin and Lewis Kornhauser, “Bargaining in the
Shadow of the Law: The Case of Divorce,” 88 Yale Law Journal 950 (1979),

95 b 954-7-
49. Levy v. Louisiana, Supreme Court of the United States, 1968, 88 S.Ct.
1509, 20 L.Ed.2d 436 (denial of damages to “illegitimate” children as a re¬
sult of the wrongful death of their mother is a violation of the Equal Pro¬
tection clause of the Fourteenth Amendment).
50. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) (non-
marital child has a right to paternal support); Weber v. Aetna Casualty &
Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) (state law that
denied worker’s compensation benefits to nonmarital dependent children
is a violation of the Equal Protection and Due Process clauses of the Four¬
teenth Amendment); Levy v. Louisiana, 391 U.S. 68 (1968).
51. Clark v. Jeter, 486 U.S. 456 (1988).
336 NOTES TO PAGES 146-152
t

%
Equality and Family

1. Harry D. Krause et al., Family Law: Cases, Comments and Questions 113
(4th ed., West Group, 1998).
2. Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) (en banc).
3. D. Kelly Weisberg and Susan Frelich Appleton, Modern Family Law:
Cases and Materials 663 (Aspen Law and Business, 2nd ed., 2002).
4. This is manifest in the historic designation of the “separate spheres”
in common law. The family and other institutions of care and altruism oc¬
cupied the private (female) sphere, while the market and state were in the
public (male) domain. See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 132
(1873) (Bradley, J., concurring) (commenting “ [t] hat God designed the
sexes to occupy different spheres of action, and that it belonged to men to
make, apply, and execute the laws”).
5. A traditional family is typically imagined: a husband and wife—
formally married and living together—with their biological children. The
husband performs as the head of the household, providing economic sup¬
port and discipline for the dependent wife and children, who correspond¬
ingly owe him duties of obedience and respect.
6. Marriage has shaped women’s dependency responsibilities. Their
caretaking responsibilities often prevent them from being able to take ad¬
vantage of opportunities in the workplace. Traditionally the uncompen¬
sated tasks of caretaking are placed with women while men pursue careers
that provide economically for the family but also enhance their individual
career or work prospects.
7. Women’s Rights Convention, “Declaration of Sentiments,” 1848.
8. Frances E. Olsen, “The Myth of State Intervention in the Family,”
18 University of Michigan Journal of Law Reform 835 (1985).
9. See, e.g, Uniform Marriage and Divorce Act (UMDA) §§ 205, 207
(amended 1971 and 1973), 9A U.L.A. 181, 183 (1998) (limiting the ability of
minors to marry and prohibiting pjarriages between close relations—
siblings or parent and child, respectively)./ .

10. See, e.g, Uniform Marital Property Act § 4, 9A U.L.A. 116 (1998)
(classifying property of spouses).

11. Catherine A. MacKinnon, “Roe v. Wade: A Study in Male Ideology,”

in Abortion: Moral and Legal Perspective 45 (Jay L. Garfield and Patricia Hen¬
nessey, eds., 1984).
 NOTES TO PAGES I 5 2 “ I 5 6 337
r

12. Id. at 53.

13. See generally Catherine A. MacKinnon, Toward a Feminist Theory of the

State (Harvard University Press, 1989).

14. See generally Martha Fineman and Roxanne Mykitiuak, The Public
Nature of Private Violence (Roudedge, 1994). Increasingly, such critiques have
been accepted, and intervention in certain domestic situations has become
more common. There has been a change in the way society reacts to
spousal violence, for example. Marital exemptions to rape statutes have
been successfully attacked and repealed in many states. Police are trained
to respond to domestic calls and to take them seriously or risk legal re¬
sponses. Sexual intimacy is no longer considered to carry with it a corre¬
sponding right to rape or batter. This change in societal perception about
male family prerogative is largely the result of the feminist movement and
its egalitarian premises. I do not mean to imply that there is now freedom
from abuse in intimate situations; rather I want to indicate that the ideo¬
logical underpinnings for such violence have been successfully challenged.

15. Id. at 193.

16. See Anita Allen, “Privacy at Home: The Twofold Problem,” in Revi¬
sioning the Political: Feminist Reconstructions of Traditional Concepts in Western Po¬
litical Theory 193 (NancyJ. Hirschmann et al, eds., Westview Press, 1996).

17. Id. at 194.

18. Id. at 209, n. 1.

19. Id. at 201.

20. Id. at 198.

21. Id. at 205. Allen’s position seems to be that reproduction and care¬
taking functions subvert women’s positive liberty interests in solitude, self-
satisfaction, and fulfillment.

Chapter Six: Feminism and the Family: Implementing

Equality, Achieving Autonomy

1. Theoretical and conceptual differences make sweeping generaliza¬

tions difficult. By contrast, those outside of feminism tend to collapse the
divisions and divides and cast all the sisters the same. I make this observa¬
tion because, for the most part, nonfeminist legal scholars remain ignorant
of the differences among feminists and feminisms. This is not the same as
338 NOTES TO PAGES I 5 6 ~ I 6 I

«
stating that feminism is ignored. One can find at least some token gesture
to a feminist perspective in liberal scholarship in virtually all academic
areas. But knowledge of feminism remains rudimentary. A few well-worn
ideas attributed to a few well-recognized names may be a marginal part of
the discourse, but beyond this, most legal scholars seem unfamiliar with
the rich and varied work that has been produced by feminists over the past
several decades.
2. Recent feminist literature in a variety of disciplines has focused on
this process. See Judith Buder, Gender Trouble xiv-xv (Roudedge, 1999).
3. There is no recognition that there may be more than two sexes, let
alone many variations and combinations of gender attributes.

4. Brown v. Board of Education, 347 U.S. 483 (1954).

5. Ruth Bader Ginsburg, “Sex Equality and the Constitution,” 52 Tu-
lane Law Review 451 (1978).
6. The feminist legal theorist’s story is similar to that of nonlegal femi¬
nists. Barrie Thorne asserts that in the so-called first wave of feminism, pa¬
triarchal laws, such as those that gave husbands control over wives’ bodies
and property, occasioned outrage and generated calls for reform. In the
second wave (which occurred in the mid-twentieth century), feminists ex-
plicitiy analyzed the family as a site of oppression and inequality. The fam¬
ily under such consideration was identified as both an idealized household
arrangement and an ideology. Barrie Thorne, “Feminism and the Family,”
in Rethinking the Family 7 (1992).

7. 83 U.S. 130 (1873) (plaintiff denied admission to the bar solely be¬
cause of her sex).

8. Of course we no longer think about marriage or women in the

common-law terms—we have undergone a gender-equality revolution.
Women are now found in the profession of law, as well as in the nursery.
The model for femaleness is no longer as rigidly defined as it was in the
nineteenth century. Women can now occupy traditional male spaces, such
as the military and the boxing ring, without forfeiting their claim to wom¬
anliness. Nonetheless, many feminists would argue that marriage, as the
site of what has been considered to be the most intimate connection be¬
tween women and men, continues to play an important ideological and in¬
stitutional role. Our beliefs about marriage shape our understandings of
masculinity and femininity today, as they did in the past. In turn, our be¬
liefs about masculinity and femininity shape the expectations and aspira¬
tions we have for ourselves and others—expectations and aspirations that
 NOTES TO P A<J ES, I 6 I — I 7 2 339
r

remain gendered. In this regard, marriage, tied to the foundational institu¬

tion of the family, remains central to the way we understand and assess
other societal institutions, and is in need of feminist analysis and critique.

9. See Elizabeth M. Schneider, “The Violence of Privacy,” 23 Connecti¬

cut Law Review 973, 985-9 (1991).

10. See Roe v. Wade, 410 U.S. 113 (1973).

11. Katherine T. Bartlett, “Feminism and Family Law,” 33 Family Law
(Quarterly 475, 475 (1999).

12. Id. at 500 (noting also that “the least divisive issues in family law,
such as domestic violence, have been those that have been resolved by ref¬
erence to familiar principles outside of family law. By the same token, the
most visible conflicts outside family law, such as the debate among femi¬
nists over maternity leave, have related to gender roles”).

13. Id.
14. See id. at 475. Bartlett addresses the tensions within feminism in re¬
gard to the areas she does discuss. In doing so, she of necessity also touches
on marriage and the child-support system (which is the privatized solution
for economic dependency and, therefore, tied to any discussion of wel¬
fare). Perhaps this demonstrates how difficult it is to address any one area
of central concern in family law without bumping into others, because
they are related conceptually and politically as well as in practice.

15. Id.
16. This is not to suggest that there is no sex discrimination remaining
in the workplace. Rather, the nature or character of discrimination has
changed. It is not the fact of being a woman that typically places one in the
margins of the workplace, but the culturally and socially imposed conse¬
quences of sex (gender) that are incompatible with the culture of the work¬
force.
17. See Arlie Russell Hochschild, The Time Bind: When Work Becomes Home
and Home Becomes Work 117-21 (Metropolitan Books, 1997) (men who asked
for parental leave were seen as not dedicated to their career); see also Gene
Koretz, “Hazardous to Your Career: The Risks of Taking Unpaid
Leaves,” Business Week, January 17, 2000, at 26.
18. Marilyn J. Essex and Marjorie H. Klein, “The Wisconsin Parental
Leave Study: The Role of Fathers” in Parental Leave and Child Care: Setting a
Research and Policy Agenda (Janet Shibley Hyde and Marilyn J. Essex, eds.,
Temple University Press, 1991).
 NOTES TO PAGES I 7 5 _ I 7 9
340
«

19. These concepts helped to make it clear that historically the law has
treated women unequally and unjustly in the contexts of divorce, repro¬
duction, and family violence, contexts in which women were victimized to
begin with. These contexts are also areas in which we are clear(er) about
our aspirations for society and its institutions in regard to women’s quest
for equality. Victor R. Fuchs, Women’s Quest for Economic Equality (Harvard
University Press, 1988), 72 (noting that despite equality, children are still
predominately the concern of women).
20. These concepts of unequal worth and unequal ability are very diffi¬
cult to discuss in noncondescending or -patronizing ways. See Barbara
Bennett Woodhouse, “The Dark Side of Family Privacy,” 67 George Wash¬
ington Law Review 1247, 1250, n. 21 (1999) (advocating use of the “steward¬
ship” model and the “notion of children’s ‘need-based rights’ ”).

21. Foundations of the Economic Approach to Law 410 (Avery Wiener Katz,
ed., 1998).

22. Id. at4io-n.

23. Id. at 411.

24. Id.
25. Id. Katz states that, due to the complexity inherent in the family,
some may see economic modeling as inappropriate. In this regard, he rec¬
ognizes there are “competing disciplines,” specifically psychology and bi¬
ology. Feminism is not mentioned as a competing discipline.

26. This does not mean that economists have not used their model to
predict and explain family behavior or to argue for policy (see, e.g, Gary
Becker). Id. at 410-39.

27. See Martha A. Fineman, “Masking Dependency: The Political Role

of Family Rhetoric,” 81 Virginia Law Review 2181, 2208-9 (1995).

28. Women of all marital statuses without children earn on average

$467 a week, compared to $552 earned by similarly situated men. When
women, again of all marital statuses, have children under eighteen, their
weekly earnings fall to $440. Surprisingly, though, when men have chil¬
dren under the age of eighteen, their earnings increase to $663 per week.
The addition of children to a family increases the wage gap to 84 cents per
dollar from 66 cents per dollar. Thus, although policies of equality have
worked to decrease income gaps in the workplace, families have not yet
adopted models of equality. Womemstill bear the cost of having children.
Labor force statistics from the Current Population Survey, “Highlight of
 NOTES TO PAIGES. I 79- I 85
34i

Women’s Earnings in 1998,” available at www.bls.gov/cps/cpswom98.htm

(visitedJune 1, 2003).

29. Martha Minow, “Introduction: Finding Our Paradoxes, Affirming

Our Beyond,” 24 Harvard Civil Rights-Civil Liberties Law Review 1, 2—4 (1989).
30. Id.

31. Wendy W. Williams, “The Equality Crisis: Some Reflections of

Culture, Courts, and Feminism,” 7 Women’s Rights Law Reporter 175,196, 200
(1982).

Chapter Seven: Mothering in a Gender-Neutral World

1. See Martha Albertson Fineman, The Illusion of Equality: The Rhetoric

and Reality of Divorce Reform (University of Chicago Press, 1991) for a de¬
scription of this phenomenon, especially chapter four, “Embracing Equal¬
ity: A Case Study,” 53-75.
2. “ . . . until the division of household labor and child care is more
nearly equalized, the revolution in the family will remain unfinished.” Bart
Landry, Black Working Wives: Pioneers of the American Family Revolution 190
(University of California Press, 2000); see also Scott Coltrane, Family Man:
Fatherhood, Housework, and Gender Equity 197 (Oxford University Press, 1996).
3. The language of the recent TANF bill requires that the states assess
the employability of each work-eligible individual receiving assistance and
establish a self-sufficiency plan to assist the family in achieving its “maxi¬
mum degree of self-sufficiency.” Personal Responsibility, Work, and Fam¬
ily Promotion Act of 2002, H.R. 4737,107th Cong. § 109b (2002).
4. See Scott Coltrane, “Gender, Culture, and Fatherhood,” in Family
Man 177-98 (1996) for a discussion of this argument.
5. See Linda J. Waite and Maggie Gallagher, The Case for Marriage: Why
Married People Are Happier, Healthier and Better Off Financially 102-103 (Broad¬
way Books, 2000) on the explanation that marriage allows men to special¬
ize in making money, and that this is perhaps due to their greater
willingness to put their careers first.
6. This was a favorite suggestion of Newt Gingrich.
7. Personal Responsibility, Work, and Family Promotion Act, supra
note 3, §io3b.
8. See Sally Sheldon, Terminating Men’s Child Support Obligations? Abortion,
 NOTES TO PAGES I 8 5 - I 9 O
342
«

Unwilling Fathers and Child Support ij (unpublished manuscript, on file with

author).
9. See Deborah Belle, The After-School Lives of Children: Alone and With
Others While Parents Work 77 (Lawrence Erlbaum Associates, 1999).
10. See Ross D. Parke and Armin A. Brott, Throwaway Dads: The Myths
and Barriers that Keep Men from Being the Fathers They Want to Be 59 (Houghton
Mifflin, 1999).
11. One group of fathers’ rights activists goes so far as saying that the
feminist movement is a reemergence of the Women’s Ku Klux Klan of the
early 1900s, and that, as a result of it and of deeply rooted sexism, fathers
are being driven from their homes and families. See Dads NOW, “Sexism
in America,” atwww.dadsnow.org (visited June 1, 2003) (the Dads NOW
motto reads: “We must now grant fathers the same rights to be in the fam¬
ily as we have granted to women in the workplace”).
12. At the turn of the century, family law reform was also related to
women’s push for equality. Ironically, in attacking the rule of father cus¬
tody, feminists of that era privileged motherhood by casting caretaking as
gendered work that is deserving of recognition in custody determinations.
Seeking to enshrine gender neutrality and equality primarily focused on
women’s participation in the public sphere, contemporary feminists at¬
tacked their foremothers’ efforts to displace fathers’ rights and foster ma¬
ternal preferences for young children.
13. See Joseph Goldstein, Albert J. Solnit, Sonja Goldstein, and Anna
Freud, The Best Interests of the Child: The Least Detrimental Alternative 186-89
(The Free Press, 1996).
14. See Waite and Gallagher, supra note 5, at 97.
15. It should be obvious that even in situations in which both parents
work, typically one assumes primary responsibility for securing, organiz¬
ing, and supervising alternative care and is the one who steps in if glitches
or crises disrupt such arrangements.
16. Linda R. v. RichardE., 162 A.D.2d 48, 561 N.Y.S.2d 29 (1990).
V
17. See Joseph Goldstein et al., “Why Should the Child’s Interests be
Paramount?” in Best Interests 81-82 (2000).
18. See Coltrane, supra note 2, at 106.
19. See Parke and Brott, supra note 10, at 119-20, 169-78 (going as far as
blaming feminism for America’s fatherlessness).
%

20. See id.

 NOTES TO PAGES I 9 O ~ I 9 7
343

21. See Coltrane, supra note 2, at 227-8.

22. See id. at 102.
23. See id. at 103.

24. See Richard Collier, “Waiting Till Father Gets Home: The Recon¬
structing of Fatherhood in Family Law,” Social and Legal Studies 4(1), 8 (1995)
(“He [father] is marked by all the trappings of a benign and safe/domesti¬
cated masculinity—a masculinity pervaded by the dualism of a
public/private divide which legitimated his absence from childcare whilst
simultaneously maintaining the structural supports whence he derived his
economic power”).
25. The traditional male preoccupation with the workplace has also
been characterized as “breadwinner masculinity.” Men are seen as eco¬
nomic providers and women are seen as caretakers. The law sanctions the
philosophy of male physical absence from the family in order to make
money. See Collier, supra note 24, at 8.
26. See Parke and Brott, “Lazy Dads and Deadbeat Dads,” in Throw¬
away Dads, supra note 10, at 65-9.

27. See id.

28. Ira Daniel Turkat, Ph.D., “Divorce Related Malicious Mother Syn¬
drome” 10(3) Journal of Family Violence 253-64 (1995); W. J. Holly, Ph.D.,
“Questions and Answers on California’s New Child Support Guidelines:
Questions Not Frequendy Asked on Guidelines (from the website of the
Fathers’ Rights and Equality Exchange), at http://dadsrights.org/
fmo/ca_support.html (last visited June 1, 2003).
29. See, e.g., Children’s Justice, “Sample Resolution for United States
Legislatures to Adopt,” at http://childrens-justice.org/legislature.htm
(last visited June 1, 2003).
30. See discussion of fatherhood and economic opportunity in Fine-
man, The Neutered Mother, 204-205.
31. This is reflected in legislative initiatives such as North Carolina’s
“Helping Dads” program, which focuses on incarcerated and low-income
fathers. The mission statement of the program equates economic provi¬
sion with positive fathering, stating that “[bjeing a good dad starts with
being a good provider.” See “Press Release: North Carolina: Helping Dads
Initiative,” at www.dhhs.state.nc.us/docs/ fathers.htm (last visited June 1,
2003).
32. See Landry, supra note 2, at 57-60, 71-2.
 NOTES TO PAGES 197-203
344
«

33. Personal Responsibility, Work, and Family Promotion Act of 2002,

supra note 3, §1030, §iogb.
34. Iris Marion Young, “Mothers, Citizenship and Independence: A
Critique of Pure Family Values,” 105(3) Ethlcs 535 0995) (critiquing
Galston’s Liberal Purposes).

35. Id. at 537-8.

36. Id. at 536 (citing Galston 280).

37. Id. at 542 (citing Galston 285).

38. Id. at 545.

39. See Jane Jenson and Mariette Sineau, Who Cares? Women’s Work,
Childcare, and Welfare State Redesign 6-8 (University of Toronto Press, 2001).

40. See id. at 148-59.

41. See chapter two of this book.
42. Even the most liberal government initiatives that recognize the so¬
cial significance of male/female roles simply recognize the roles—they do
not offer a framework for change, but only make broad statements. The
Colorado Initiative for Responsible Fatherhood, for example, states that in
order “[t]o support fatherhood Colorado must: [rjecognize the need and
moral right of children to know and meaningfully interact with both their
parents as they grow up, [h]old fathers morally emotionally and finan¬
cially responsible for the welfare of their children, [rjecognize that a
father’s involvement in his child’s life is multi-faceted, [pjrovide role mod¬
els of responsible fathering/male behavior, [and ajccept fathers’ roles in
the home just as women are accepted in the work place.” At www.peak.
org/ ~j edwards / C O LO RAD C). HTM (last visited June 1, 2003).

43. See chapter eight of this book.

44. See Sheldon, supra note 8, at 21. Sheldon further asserts that if advo¬
cates of men’s rights are serious about problems facing individual unwill¬
ing fathers, then they should also advocate that children be considered the
responsibility not just of their parents, but also of society as a whole.

45. See id.

46. See Martha Albertson Fineman, “Child Support Is Not the Answer:
The Nature of Dependencies and Welfare Reform,” in Child Support: The
Next Frontier 217 (J. Thomas Oldhan and Marygold S. Melli, eds., Univer¬
sity of Michigan Press, 2000); see also Promise Keepers, paid advertise¬
ment, The Ithaca Journal, June 3, 2002, at 9A. (The advertisement depicts a
 NOTES TO PA GES 2 O 3 - 2 I I
345
If

picture of a girl playing soccer, asking her mom who is the “crazy guy” in
the stands cheering for her. Her mother replies that this is her father. The
advertisement pledges, “Promise Keepers wants to help you be the man
your family needs you to be.”)
47. See Fineman, supra note 46, at 221.
48. Institute for Women’s Policy Research, “Research-in-Brief” (March
1999) -
49. See the Honorable Evelyn Lynn, “Prepared Testimony of the Hon¬
orable Evelyn Lynn,” Florida House of Representatives on Behalf of the
National Conference of State Legislatures Before the Senate Committee
on Finance Subcommittee on Social Security and Family Policy (July 25,
2000) (LEXIS, Federal News Service) see also Fineman, supra note 46, at 217
(poor and unemployed men have trouble providing for themselves, much
less a family).
50. Institute for Women’s Policy Research, supra note 48, at 6.

Part Four: The Autonomous Individual and

the Autonomous Family Within the Social Contract

1. It is interesting to note that the “private” sphere of the family is sub¬

ject to heavy public regulation, mostly because it retains aspects of “sta¬
tus” and is not governed by contract. In contrast, bodies of designated
“private” law, such as contract, govern the “public” arena of the market¬
place. These contrary characterizations have ideological nuances.
2. See generally Sir Henry Summer Maine, Ancient Law 174 (6th prtg.
1920) (1864). (“[T]he movement of the progressive societies has hitherto
been a movement from Status U> Contract’; emphasis added.)
3. Christina Boswell, “Social Contract Theory, Global Justice and
Motivation,” paper for the Political Studies Association-UK 50th Annual
Conference, 2000, 2, at www.psa.ac.uk/cps/2000/Boswell%20Christina.
pdf (last visited June 1, 2003).
4. Stanford Encyclopedia of Philosophy, “Contemporary Approaches
to the Social Contract,” 1, at http;//plato.Stanford, edu/ entries/
contractarianism-contemporary (last visited June 1, 2003).
5. Boswell, supra note 3, at 3.
6. Id.
346 NOTES TO PAGES 2 I I ~ 2 I 5
4

\
7. Id.
8. David de Carvalho, “The Social Contract Renegotiated: Protecting
Public Values in the Age of Contracting,” 2, at www.sprc.unsw.edu.
au/nspc200i/NSPC%20200iPapers/deCarvalho.pdf (last visited June 1,
2003).
9. Restatement (Second) of Contracts § 17 (1979) (Requirement of a
Bargain—the formation of a contract requires mutual assent).
10. See generally Robert Nozick, Anarchy, State, and Utopia (Basic Books,
1974)-
11. An influential exposition of this perspective is found in George
Gilder, Wealth and Poverty 63 (Basic Books, 1981). Also illustrative
are the debates concerning the revision of the welfare system.
See Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. No. 104-103, § 101, no Stat. 2105, 2110-12 (1996).
12. See generally ]o\m Rawls, A Theory of Justice (Belknap Press, 1971).
13. John Locke, “An Essay Concerning the True Original, Extent, and
End of Civil Government” (Chapter 11, No. 140) (George Bonham, 1798).
14. See Susan Moller Okin, Justice, Gender and the Family (Basic Books,
1989)-
15. Eva Feder Kittay, Love’s Labor: Essays on Women, Equality, and Depen¬
dency 76 (Routledge, 1998).
16. Martha L.A. Fineman, “Dependencies,” in Women and Welfare: The¬
ory and Practice in the United States and Europe (Nancy J. Hirschmann and Ul-
rike Liebert, eds., 2001); Martha L. A. Fineman, “Contract and Care”
(Symposium on the Structures of Care Work) 76 Chicago Kent Law Review
1403-40 (2001); Martha L.A. Fineman, ‘Why Marriage?’ Virginia Journal of
Social Policy and the Law 239-71 (2001); Martha L.A. Fineman, “Cracking
the Foundational Myths: Independence, Autonomy, and Self-Sufficiency”
(Symposium: Gender, Work and Family Project Inaugural Feminist Legal
Theory Lecture) 8 American University Journal of Gender, Social Policy and the
Law 13-29 (2000); Martha L.A. Fineman, “The Family in Civil Society”
(Civil Society Symposium) 75 Chicago Kpnt Law Review 531-54 (2000);
Martha L.A. Fineman, “What Place for Family Privacy?” 67 George Wash¬
ington Law Review 1207-24 (1999); Martha L.A. Fineman, “The Inevitabil¬
ity of Dependency and the Politics of Subsidy” (Symposium on Welfare
Reform) 9 Stanford Law and Policy Review 89-99 (1998); Martha L.A. Fine-
man, “The Nature of Dependenciesv and Welfare Reform” (Symposium
on Ethics, Public Policy, and the Future of the Family) 36 Santa Clara Law
 NOTES TO PACES. 215 — 219 347

Review 287—311 (1996); Martha L.A. Fineman, “Masking Dependency:

The Political Role of Family Rhetoric” (Symposium on New Directions in
Family Law) 81 Virginia Law Review 2181-2215 (1995).

17. John Rawls, Justice as Fairness: A Restatement 10-11 (Erin Kelly, ed.,
Harvard University Press, 2001).

18. Id. at 11.

19. Id. at 163.

20. Id. at 164.

21. Id.

Chapter Eight: Recasting the Social Contract

1. Christopher W. Morris, ed., The Social Contract Theorists: Critical Es¬

says on Hobbes, Locke and Rousseau (Rowman & Litdefield, 1999), ix; see, e.g.
Edgar Faure, Pour un Nouveau Contrat Social (1973); Ralf Dahrendorf, Conflict
and Contract: Industrial Relations and the Political Community in Times of Crisis
(Liverpool University Press, 1975); James M. Buchanan, Freedom in Constitu¬
tional Contract: Perspectives of a Political Economist (A & M University Press,
1977); Kai Nielsen and Roger A. Shiner, New Essays on Contract Theory
(Canadian Association for Publishing in Philosophy, 1977); Geraint Parry,
Jack Lively, and Pierre Birnbaum, Democracy, Consensus and Social Contract
(Sage Publications, 1978); Ilyas Ahmad, The Social Contract and the Islamic
State (Shahzad Publisher, 1979); Ian R. Macneil, The New Social Contract: An
Inquiry into Modern Contractual Relations (Yale University Press, 1980); Ron
Replogle, Recovering the Social Contract (Rowman & Litdefield, 1989); Robert
C. Solomon, A Passion for Justice: Emotions and the Origins of the Social Contract
(Rowman & Litdefield, 1995); Brian Skyrms, Evolution of the Social Contract
(Cambridge University Press, 1996); Charles W. Mills, The Racial Contract
(Cornell University Press, 1997); Frances Fox Piven and Richard A.
Cloward, The Breaking of the American Social Compact (The New Press, 1997).

2. Christopher Morris explains John Locke’s definition of the social

contract in this way: “A complete political society, Locke suggests, is cre¬
ated in two logically separable stages (which may or may not be separated
by an interesting temporal gap). The society itself is created by a contract
among all those who wish to be part of it. The society’s government is
formed by society’s granting a separate trust, which conveys to govern¬
ment the political power that was previously invested in the society by its
348 NOTES TO PAGES 2ig-220

«
members. Political power is given first ‘into the hands of the society, and
therein to the governors whom the society has set over itself, with this ex¬
press or tacit trust: that it shall be employed for their good and the preser¬
vation of their property’ ” (II, 171; see also II, 243). While the creation of the
“Legislative” (the “soul” of the commonwealth) is “the first and funda¬
mental act of society” (II, 212), the body politic is created “by barely agree¬
ing to unite into one political society” (II, 99). Consent to membership in
the body politic must be unanimous (“by the consent of every individual”
[II, 96]), for “only a person’s own consent can remove that individual from
the state of nature. But this consent entails, Locke believes, consent to rule
by the majority of the members in all subsequent matters (including, of
course, the creation of government)” (internal footnotes removed). A.
John Simmons, “Political Consent,” in The Social Contract Theorists, supra
note 1, at 127.

3. I find in the course of my teaching that law students are very at¬
tached to the idea of contract. Many would use it to resolve all sorts of dif¬
ficult social policy and economic resource issues. The idea of consent is
particularly potent (she or he “asked for it”). See generally Restatement
(Second) of Contracts §§1, 3 (1979) (contract, agreement, and bargain de¬
fined).

4. Relationships within the family are considered to exist beyond and

outside contract, their legality and consequences governed by status or
policy principles, but to a large degree the product of state-imposed obli¬
gations.

5. W. David Slawson, “Standard Form Contracts and Democratic

Control of Law Making Power” 84 Harvard Law Review 529,530,532 (1971).

6. Karl N. Llewellyn, “Book Review: O. Prausnitz, The Standardiza¬

tion of Commercial Contracts in English and Continental Law,” 52 Har¬
vard Law Review 700, 702-3 (1939); see also Steiner v. Mobil Oil Corp., 569 P.2d
751 758 (!977) (“[AJdhesion contract analysis teaches us not to enforce con¬
tracts until we look behind the facade of the formalistic standardized
agreement in order to determine whether any inequality of bargaining
power between the parties renders contractual terms unconscionable”).

7. See, e.g., NLRB v. Burns International Security Services, Inc., 406 U.S. 272
(!972) (The Supreme Court emphasized the importance of freedom of
contract in its decision that it was improper to hold a successor employer
to the substantive terms of a collective bargaining agreement that it had
neither expressly nor implicitly assumed).
 NOTES TO P A (3 E S -2 20-224
349

8. Simmons, supra note 2, at 122.

9. James Boyle, “Legal Realism and the Social Contract: Fuller’s Pub¬
lic Jurisprudence of Form, Private Jurisprudence of Substance,” 78 Cornell
Law Review 371 (1993).

10. Simmons, supra note 2, at 131.

11. Id. at 128-9.

12. Roland Benabou, “Unequal Societies: Income Distribution and the

Social Contract,” 90 American Economic Review 96 (2000).

13. Id. at 97. He proposes a “simple theory of inequality and the social
contract,” which is based on two mechanisms: redistribution receives “less
political support in an unequal society than in a more homogenous one
. . . [and a] lower rate of redistribution, in turn, increases inequality of fu¬
ture income due to wealth constraints on investment in human or physical
capital.” Id. at 119. He concludes that these mechanisms have produced
“two stable steady-states, the archetypes for which could be the United
States and Western Europe: one with high inequality yet low redistribu¬
tion, the other with the reverse configuration.” Id. He concludes his article
by stating: “the original question of why the social contract differs across
countries, and whether these choices are sustainable in the long run, re¬
mains an important topic for further research.” Id. It seems that this issue
is the one being played out in current European politics. See, e.g., Robert
Schuman Centre for Advanced Studies, “Recasting the European Welfare
State: Options, Constraints, Actors” (1998-99 European Forum), at
www.fue.it/RSCAS/Research/EuropeanForum/EF_1998-1999.shtml
(last visited June 1, 2003); Peter Flora, “Welfare State Analysis” (Research
Programme 1996-1999-Research Department I), at www.mzes.uni-
mannheim.de/res_prog_e/fb_abio6. html (last visited June 1, 2003).

14. For a succinct description of libertarian policy and theory, including

free-market conservatism, see Libertarian.Org, “An Introduction to Liber¬
tarianism,” at www.libertarian.org (last visited June 1, 2003).

15. The economic redistribution in our welfare policy (however limited)

and in the legal rules readjusting traditional patriarchal power within fam¬
ilies were products of a liberal political view. For a brief discussion of the
historical development of distrust in the market and the rise of “new” lib¬
eralism, see “Liberalism in Liberalism as a Political Theory, Property and
Market,” Stanford Encyclopedia of Philosophy, at http://plato.stanford.
edu/entries/liberalism (last visited June 1, 2003).
 350 NOTES TO PAGES 225-23O
«
<L
16. Restatement (Second) of Contracts § 19 (Conduct as Manifestation
of Assent).
17. Linda McClain, “Care as a Public Value: Linking Responsibility,
Resources, and Republicanism,” 76 Chicago Kent Law Review 1673, 1675-6
(2001).

18. See e.g., the relevantly named Personal Responsibility and Work Op¬
portunity Reconciliation Act, Pub. L. No. 104-103, § 101, no Stat. 2105,
2110—12 (1996). See also Linda McClain, in Homo Economicus, Fineman and
Dougherty (eds.) forthcoming (2004).

19. For further discussion of unpacking choice, see Martha Albertson

Fineman, The Neutered Mother 148-50, 165-6.

20. Restatement (Second) of Contracts § 208 (Unconscionable Con¬

tract or Term;) § 152 (When Mistake of Both Parties Makes a Contract
Voidable); § 261 (Discharge by Supervening Impracticability).
21. Matthew Swanson. The Social Contract Tradition and the Question of Po¬
litical Legitimacy 11 (Edwin Mellen Press, 2001).

22. See Fineman, supra note 19, at 177 (“The Limits of Privacy—The
Public Family”).
23. See chapter one.

24. See, e.g, Owen Fiss, “The Autonomy of Law” 3-4, at www.
yale.edu/lawweb/lawfac/fiss/efiss.pdf (last visited June 1, 2003) (“any
well-functioning market needs law . . . [t]he market also needs an institu¬
tion that can interpret and implement relevant rules of law: a judiciary”).
25. See the Uniform Commercial Code (U.C.C.) § 2-302 (2000) (dis¬
cussing court treatment of an unconscionable contract or clause).
26. 1 he U.C.C., recognizes background conditions in several different
forms. U.C.C. § 1-205 (2000) (Course of Dealing and Usage of Trade: “A
course of dealing is a sequence of previous conduct between the parties to
a particular transaction which is fairly to be regarded as establishing a
common basis of understanding for interpreting their expressions and
other conduct. ... A usage of trade is gny practice or method of dealing
having such regularity of observance in a plaCo, vocation or trade as to jus¬
tify an expectation that it will be observed with respect to the transaction in
question”).

27. The U.C.C. contemplates changes in background conditions and

assigns liability. U.C.C. § 2-615 (2000) (providing for excuse by failure of
presupposed conditions). See Stephen G) York, “Re: The Impracticability
 NOTES TO PAGES 230-236 35i
r

Doctrine of the U.C.C.,” 29 Duquesne Law Review 221 (1991) (arguing for a
broad interpretation of § 2-615, with greater consideration of background
conditions especially due to the relational nature of the relevant con¬
tracts). Jeremy Waldron argues that in order for agreements and transac¬
tions between individuals, or between an individual and the state, to be
operational, there needs to be a context of “rights” upon which the agree¬
ments are based—in other words, a fallback position. Jeremy Waldron,
“When Justice Replaces Affection: The Need for Rights,” in Liberal Rights:
Collected Papers, 1981-1991, 370-91 (Cambridge University Press, 1993).
Waldron’s “rights” represent the background conditions upon which indi¬
viduals can reasonably rely in the event that goodwill and affection fail in
interpersonal relation. Id.

28. Id. at 385-6.

29. Id. at 387.
30. Id. at 370-91.
31. Id. at 376.
32. Id. at 379.
33. Restatement (Second) of Contracts §205 (1979) (Duty of Good Faith
and Fair Dealing).
34. Restatement (Second) of Contracts §261 (1979) (Discharge by Su¬
pervening Impracticability) and §265 (Discharge by Supervening Frustra¬
tion).
35. Other questions might include: What is the scope of the obligation
of law and policy (and, hence, the state) to accommodate significant socie¬
tal change? Can societal change achieve such a transformation in context
that injustice can be said to result without accommodation and incorpora¬
tion of the new background conditions into a new version of the social
contract?
36. Arising within this inquiry are questions concerning the bargaining
opportunities that have been excluded from the generalized realm of “pri¬
vate” contract by being relegated to the special (and publicly regulated)
category of marriage. Of course, a related question that arises from this
articulation of this issue is whether such exclusion undermines the use of
contract theory as the way to generate universal concepts to discuss ab¬
stract interactions of bargain and exchange in society.

37. See chapter four.

38. See Vicki Schultz, “Life’s Work,” ioo Columbia Law Review 1919 (2000)
 352 NOTES TO PAGES 236-239

(noting that the changes in the workplace are creating a situation in which
all workers are experiencing the problems and dilemmas that have tradi¬
tionally faced women).

39. Id. at 1921-8 (documenting the threatening changes in the work¬

place).

40. But see id. at 1925 (noting the growing number of contingent and
temporary workers working without benefits).

41. But see id. at 1928 (arguing for a right to work).

42. Many of the ways in which the state has participated in changing
the historic premises of the social contract are discussed in chapter four.
They include increased legal recognition of and response to domestic
abuse and neglect; removal of common-law interspousal tort immunity,
which precluded one spouse from recovering from the other for negli¬
gently inflicted injuries; no-fault divorce statutes; changes in the workplace
that acknowledge women’s ability to bargain and conduct business; the
courts’ changing approach to the validity of prenuptial agreements; in¬
creased legal recognition of nonmarital relationships between sexual affil¬
iates; the legal entitlement of nonmarital children to benefits historically
reserved for their marital counterparts; and a growing acceptance of a
contractual view of marriage, based on the parties’ equal status. See chap¬
ter four.

43. See the discussion of changes in family law in chapter four.

44- See the Republican Contract with America,” at www.house.

gov/house/Contract/CONTRACT.html (last visited June 1, 2003). The
section called the Personal Responsibility Act, on “Capping the Growth of
Welfare Spending, ’ says that “[t]he entitlement status of these programs
[Aid for Families with Dependent Children, Social Security Insurance,
and public housing programs] is ended”; see also, e.g., Personal Responsibil¬
ity and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-103, § 101, no Stat. 2105, 2110-12 (1996).

45- Republican Contract with America,” supra note 44.

V
46. “Republican Contract with America-,” supra note 44 “Personal Re¬
sponsibility Act (Welfare Reform),” at www.house.gov/house/ Contract/
persrespd.txt (visited June 1, 2003).

47. Ibid, (emphasis added).

48. “The Family Reinforcement Act,” at www.house.gov/Contract/

familiesd.txt (last visited June 1, 2003); see also “The Contract with Amer¬
ica,” afwww.spectacle.org/295/contract.html (last visited June 1, 2003).
 NOTES TO P A.'.G ES. 239-248 353

49. See Eva Kittay, Love’s Labor: Essays on Women, Equality, and Dependency
76 (Routledge, 1999); see also Victor R. Fuchs, Women’s Quest for Economic
Equality 60-4, 133-4 (Harvard University Press, 1988).

Chapter Nine: The Tentative Workplace

1. But see Unlawful Employment Practices, 42 U.S.C. § 2000e-2 (a)(i)

(1994) (prohibiting employment discriminadon on the basis of race, color,
religion, sex, or national origin).
2. See Katherine V W. Stone, The New Psychological Contract and the Bound¬
aryless Workplace (reviewing the history of employment trends through the
twentieth century).
3. Edmund L. Andrews, “Don’t Go Away Mad, Just Go Away,” New
York Times, February 13, 1996, Di.
4. Stephen Fishman, Working for Yourself: Law and Taxes for Independent
Contractors, Freelancers and Consultants, chapter 1 (3rd ed., Nolo, 2000).
5. Katherine V W. Stone, “Knowledge at Work,” 34 Connecticut Law Re¬
view 721, 725 (2002).
6. Id.
7. Katherine Stone, “The New Psychological Contract: Implications
of the Changing Workplace for Labor and Employment Law,” 48 UCLA
Law Review 519 (2001).
8. Id. at 550.
9. Id. at 542.
10. See Vickie Schultz, “Life’s Work,” 100 Columbia Law Review, at 1881,
1924—25 (discussing the decline in job security and an increase in contin¬
gent work).
11. Id.
12. See Deborah Belle, The After-School Lives of Children: Alone and With
Others While Parents Work 7 (Lawrence Erlbaum Associates, 1999). For fur¬
ther elaboration on the effects of employment on time parents spend with
their children, please see chapter two of this book.
13. See Kristin Downey, Grimsley and Jacqueline L. Salmon, “For
Working Parents, Mixed News at Home: Children Praise Them but Note
Stress,” Washington Post, September 27, 1999, Ai.
14. See Deanna M. Lyter et al., “New Welfare Proposals Would Require
Mothers Receiving Assistance to Work More than the Average American
 NOTES TO PAGES 248-253
354
*

Mom: Child Care Inadequate,” Institute of Women’s Policy Research

(2002).
15. Ellen Galinaky, President of the Families and Work Institute report¬
ing to the Association of Work/Life Professionals, reported in Miami Her¬
ald, February 7,1998, §C, at iC.
16. Sarah Anderson et al., “A Decade of Executive Excess: The
1990s,” at http:/www.ufenet.org/press/archive/i999/Executive_Excess/
decade_of_executive_excess.html (visitedJune 1, 2003).
17. See Belle, supra note 12, at 7.
18. See id.
19. See id.
20. Id. at 1924.
21. See Peter T. Kilborn, “Poor Workers Turning Down Employers’
Health Benefits,” New York Times, November 10,1997, at A24 (reporting on
a government study authored by Barbara Steinberg Schone and Phillip F.
Cooper, economists at the Agency for Health Care Policy and Research in
the Department of Health and Human Services, that was published in the
journal Health Affairs).
22. See id.
23. See id.
24. See United States Bureau of Labor Statistics, “Union Member Sum¬
mary” (January 17, 2000), at http://stats.bls.gov/news.release/uni0n2.
toc.htm (last visited June 1, 2003).
25. See Andrew Hacker, “Who’s Sticking to the Union?” New York Review
of Books, February 18, 1999.
26. The response to revitalized union activity by many Republican
politicians has been to advance legislation to burden such action. For ex¬
ample, President Bush intends to issue an executive order requiring federal
contractors “to post a notice telling workers they have a right not to pay
that part of union fees used for political activities.” Steven Greenhouse,
“Bush Is Moving to Reduce Labor’s'Political Coffers,” New York Times, Feb¬
ruary 16, 2001, at A14. A California Campaign Reform Initiative (CRI)
would have barred unions from spending any portion of any member’s
dues on political activity without the member’s written consent. There was
no corresponding attempt to hold companies responsible for gaining con¬
sent from their workers or the consumers of their product (or, for that mat¬
ter, their stockholders) for their uses of profits in lobbying and other
 NOTES TO PAfeES'253 — 256 355

political transactions. Republican demands for placing a burden of con¬

sensus and consent are directed only to the labor union side of the ledger.
27. Stone, supra note 2, at 631.
28. Richard B. Freeman and Joel Rogers, “A Proposal to American
Labor,” The Nation, June 24, 2002, at 18.
29. Id. at 22.
30. See Theodore Caplow, American Social Trends 90 (Harcourt BraceJo-
vanovich, 1991).
31. See Daniel H. Weinberg, U.S. Department of Commerce, Pub. No.
P60-191, “A Brief Look at Postwar U.S. Income Inequality,” Current Popula¬
tion Reports: Household and Economic Studies, at 1 (1996).
32. See id.
33. A parallel examines the growth in average household income for
each quintile—about 44 percent for the top quintile (from $73,754 in 1968
to $105,945 in 1994) but only 7 percent for those in the bottom quintile
($7,202 to $7,762). See Weinberg, supra note 31, at 1. The change from 1977
to 1999 for the top quintile was a positive 38.2 percent (from $74,000 to
$102,300) and shockingly a negative 12 percent (from $10,000 to $8,800) for
the bottom quintile. See David Cay Johnston, “Gap Between Rich and
Poor Found Substantially Wider,” New York Times, September 5,1999, §1, at
16. But see W. Michael Cox and Richard Aim, “Why Decry the Wealth
Gap?” New York Times, January 24, 2002 (citing the Treasury Department
as reporting that between 1979 1968, 86 percent of Americans in the
bottom fifth improved their status).
34. 5kJohnston, supra note 33, at 16.
35. See Peter T. Kilborn and Lynette Clemetson, “Gains of 90’s Did Not
Lift All, Census Shows,” New York Times,]une 5, 2002.
36. See Cox and Aim, supra note 33 (Cox goes on to dismiss these figures
as being un-arbitrary and a result of progress. He further states that within
a seventeen-year study, only 5 percent of the people in the economy’s low¬
est 20 percent failed to move to a higher income group).

37. See id.

38. Urie Brofenbrenner et al., The State of Americans (The Free Press,

I996)-
39. See id. at 56.
40. See id. at 58.
41. Poverty may be increasing because of the change from blue-collar
 NOTES TO PAGES 256-257
356
t

\
to white-collar jobs that took place between the 1970s and 1980s, a change
from which workers have not completely recovered. See Caplow, supra note
30, at 63. Caplow questions whether there even is a crisis of the family: he
argues that although Americans have been told the family is in crisis, they
tend to see their own families as happy and successful.
42. U.S. Department of Labor, “Futurework: Trends and Challenges
for Work in the 21st Century” (visited June 1, 2003), atwww.dol.gov/asp/
programs/history/herman/reports/futurework/report.htm

43. Id.
44. Id.
45. See Timothy M. Smeeding and Lee Rainwater, “Comparing Living
Standards Across Nations, Real Incomes at the Top, the Bottom, and the
Middle,” Luxembourg Income Study (February 2002); Jeanne Brooks-Gunn
and Greg J. Duncan, “The Effects of Poverty on Children,” The Future of
Children: Children and Poverty, Summer/Fall 1997, at 55.
46. See Center for the Future of Children, “Executive Summary,” The
Future of Children: Children’s Poverty, Summer/Fall 1997, at 3.
47. Ibid.
48. Brooks-Gunn and Duncan, supra note 45, at 57. This report collects
and assesses the available research in regard to each of these dimensions of
the well-being of children in poverty. The authors conclude that income
can substantially influence children’s well-being, finding the associations
between income and child outcomes are more complex and varied than
suggested in simple tables. “Family income seems to be more strongly re¬
lated to children’s ability and achievement-related outcomes than to emo¬
tional outcomes. In addition, the effects are particularly pronounced for
children who live below the poverty line for multiple years and for children
who live in extreme poverty.” Id. at 67-8.
49. See Louis Uchitelle, “The American Middle, Just Getting By,” New
York Times, August 1, 1999 at BUi (citing the U.S. Census Bureau, which
calculates the median family incornp between $46,500 and $50,000).
50. Ibid, at BU13 (citing the U.S. Census Bureau) (families were working
3,860 hours in 1997—up from 3,236 in 1979).
51. Ibid.

52. Ibid. See also Anne Phillips, Which Equalities Matter? 62-3 (Blackwell,
1999) (Phillips argues that television is a necessity in a society that derives
its culture from TV programs, and that if one does not have a car, one
lacks the means to access basic amenities).
 NOTES TO PA feES -257-259 357
r

53. Id. at 63.

54. Caplow, supra note 30, at 59.

55- Id.
56. Id. Even two-parent families are experiencing poverty, so revering
the two-parent household as an ideal economic unit is not the answer. In¬
deed, two-parent families are working harder than before, when there was
only one breadwinner, but they are still getting paid the same. See Harriet
Johnson Brackey, “Survey: Workplace Is More Demanding,” Herald, Feb¬
ruary 7, 1998, iC.

57. See Schultz, supra note 10, at 1926 (discussing the incidence and ram¬
ifications of increasing wage inequality).

58. Id.; see also David Leonhardt, “Did Pay Incentive Cut Both Ways?”
New York Times, April 7, 2002, at Ci (revealing the exorbitant income—up
to $154 billion—that many chief executive officers of leading corporations
enjoy, even despite company failures).

59. Isaac Shapiro and Robert Greenstein, “The Widening Income

Gulf,” Center on Budget and Policy Priorities (September 9, 1999), www.
cbpp.org/9-4-99tax-rep.htm (June 1, 2003)
60. See Leonhardt, supra note 58, at Ci; see also “A Prime Example of
Anything-Goes Executive Pay,” New York Times, June 4, 2002, at Ci.

61. Robert H. Frank, “Higher Education: The Ultimate Winner-Take-

All Market?” at www.ih.c0rnell.edu/cheri/wp/cheri-wp02.pdf (June 1,

2003)
62. Lee Rainwater and Timothy M. Smeeding, “Doing Poorly: The
Real Income of American Children in a Comparative Perspective,”
Maxwell School of Citizenship and Public Affairs (1995), 18.

63. See id. at 24-25.

64. Ehrenreich’s figures are confirmed by United for a Fair Economy,
“Exec-Worker Gap in Pay Gets Wider” at www.ufenet.org/press/
ufenews/200i/Executive_Excess_200i_Denv.html (visitedJune 1, 2003).

65. Although voluntary charity and philanthropy are not the objects of
the social contract configuration with which I am dealing, it is important
to point out that they prove to be no substitutes for governmental man¬
dates when it comes to business responsibility. Inventors and investors have
accumulated huge fortunes, but such financial success has not make their
holders socially uncomfortable. Giving is relatively miserly and much
more narrowly directed than it was at the turn of the last century, which
was also an era of capital consolidation and transformation. Today, phi-
358 NOTES TO PAGES 259-267
*

-V

lanthropy seems more industry related or self-enhancing than the general¬

ized public institution building that occurred at the turn of the twentieth
century. Andrew Carnegie may have built libraries, but Bill Gates donates
to them computer equipment that will illustrate to users the wonders of
Microsoft, while a scolding Ted Turner contributes funds to show the
United States how to pay off its debt to the United Nations.

66. Phillips, supra note 52, at 12-13.

67. See generally Schultz, supra note 10, at 1922-23 (discussing how work¬
place restructuring trends can create worker competition and result in ha¬
rassment and discrimination).

68. See Clark Freshman, “Re-Visioning the Dependency Crisis and the
Negotiators Dilemma: Reflections on the Sexual Family and the Mother
Child Dyad,” 22 Law and Social Inquiry 97 (1997) (reviewing Fineman, The
Neutered Mother).

69. Schultz also argues for a living wage, the right to work, empowering
work conditions, and reduced hours for all workers. Schultz, supra note 10,
1942-57-

Chapter Ten: The Tenable State

1. “Contract with America” at www.nationalcenter.org (visited June 1,

2003).

2. In this regard, it is very interesting to examine the debates about

programs to expand voter registration, such as the motor-voter proposal,
or schemes to increase representation, such as supplementing more tradi¬
tional census-information gathering. In both of these instances, the more
exclusionary (less democratic?) policies were championed by those in leg¬
islative power—one suspects because the reforms were perceived to bene¬
fit the other party.

3. See e.g., Samuel Bowles, David M. Gordon, and Thomas E. Weis-

skopf, in “Right-Wing Economics Backfired,” Challenge (1991) at 4. (The
three professors of economics at the University of Massachusetts at
Amherst, New School for Social Research, and the University of Michi¬
gan summarize their findings as follows: “The Reagan Administration did
indeed succeed in reversing many of the economic policies of the 1970s,
yet the new policies now appear to.have driven the U.S. economy not to
new heights of achievement, but to an ignominious impasse.”)
 NOTES TO PAGES ^268-280 359
r

4. See Justin Fox, “Here We Go Again,” Fortune (May 12, 2003), 64-71
(calling Reagan’s policy of supply-side economics “dead wrong” and in¬
voking George H. W. Bush as critic of his son’s recent plans).

5. See generally www.libertarian.org (visited on June 1, 2003).

6. 347 U.S. 486 (1954).

7. Joel Bakan, Just Words: Constitutional Rights and Social Wrongs 46 (Uni¬
versity of Toronto Press, 1997).

8. Ibid., 9-10.
9. See, e.g, Kathleen E. Mahoney, “The Constitutional Law of Equal¬
ity in Canada,” 44 Maine Law Review 229 (1992), at 230.

10. Bakan, supra note 7, 9-10. Other commentators have a more

utopian vision: “[the] underlying aim [of egalitarians] is to bring about a
society of equals: a classless, genderless, non-racist society in which there
are, if that is possible, no social strata or at least a society where the neces¬
sary strata hierarchies are as minimal as they possibly can be and not the
source of some people having power over others,” Kai Nielsen, “Radical
Egalitarianism Revisited: On Going Beyond the Difference Principle, 15
Windsor Yearbook of Access to Justice, at 125; “we will not, by the evident dif¬
ferences between people that obtain in many ways and in many domains
be jolted from a deeply embedded and considered conviction that the life
of everyone matters and matters equally, a conviction that has appropri¬
ately been called moral equality: the belief in the equal moral standing of
all people.” Id. at 126 (citing Hurka, 1992).

11. See Nielsen, supra note 10, 121.

12. This is a play on the words of President George W. Bush, who has
repeatedly advertised his educational policy as designed to leave “no child

behind.”
13. For a brilliant analysis of how these ideas can be used by feminists in
the welfare context, see Martha T. McCluskey, Subsidized Lives and the
Ideology of Efficiency,” 8 American University Journal of Gender, Social Policy

and the Law 115 (1999).

14. T. H. Marshall and Tom Bottomore, eds., Citizenship and Social Class

(Pluto Press, 1992) at 8.

15. Martha McCluskey, “The Illusion of Efficiency in Workers’ Com¬
pensation ‘Reform,’ ” 50 Rutgers Law Review 657, at 683 (1998).

16. McCluskey notes that average state compliance increased from a

level of 6.8 out of the nineteen “essential recommendations” in 1972 to an
 NOTES TO PAGES 280-281
36°
«

average of 12.1 in 1982, when the national trend toward expansion ap¬
peared to level off substantially short of the recommended goals. During
this same period, writes McCluskey, benefits and coverage in many states
expanded as a result of changes in administrative and judicial interpreta¬
tions of statutes. Ibid,., at 684. The changes in aspirations for the state that
occurred during the Reagan era meant that in the 1990s, employers’ cries
that the expansion of benefits was a “crisis” fell on fertile ears. From 1989
to 1997, states heeded the demands of employers and insurers rather than
labor groups and other representatives of injured workers, and enacted
legislation that substantially limited workers’ compensation. McCluskey
describes the justification for this revamping as reducing costs for insurers.
Id., 700.
17. Sonya Michel, “A Tale of Two States: Race, Gender, and
Public/Private Welfare Provision in Postwar America,” 9 Tale Journal of
Law and Feminism 127 (1997).
18. United Nations General Assembly, December 10, 1948, G.A. Res.
217A, 3GAOR, Resolutions (A/810), at 71.

19. Concluded December 16,1966. 993 U.N.T.S. 3.

20. Adopted November 22,1969. 1144 U.N.T.S. 123; OAS Treaty Series
No. 36; Basic Documents Pertaining to Human Rights in the Inter-
American System, OEA/Ser.L.V/II.71, Doc. 6 rev. 1, at 25 (1988).

21. (Banjul Charter)June 27, 1981, 211.L.M. 59 (1981).

22. Adopted November 4, 1950. 213 U.N.T.S. 222; European Convention on

Human Rights: Collected Texts 3 (Kluwer Academic Publishers, 1987).
23. See, e.g., International Covenant on Civil and Political Rights, con¬
cluded Dec. 19, 1966, 999 U.N.T.S. 171; American Declaration of the
Rights and Duties of Man, May 2, 1948; Basic Documents Pertaining to
Human Rights in the Inter-American System, OEA/Ser.L.V/II/71, Doc.
6 rev. 1, at 18 (1988) (which is unique among these documents for its overdy
sexist language and lack of remedial provisions); and numerous optional
protocols to the previously mentioned conventions, which provide more
details as to the manner in which these rights will be guaranteed.

24. Of course, even in countries where there is favorable reception for

international human rights norms, the picture is not always a cheery one.
Anne Bayevsky and Joan Fitzpatrick report that while the political
branches of Canada and the United Kingdom indicate a greater accep¬
tance of international human rights standards, this ratification “does not
necessarily translate into greater and more principled acceptance of inter-
 NOTES TO P A « ES- 281-284 361
r

national human rights norms by domestic courts.” “International Human

Rights Law in United States Courts: A Comparative Perspective,” 14
Michigan Journal of International Law 1, 2 (1992). One could counter that at
least they have gotten over the first hurdle—that of acceptance of univer¬
sal and international opinion.

25. See 993 U.N.T.S. 3.

26. Ibid.
27. See, e.g., Protocol to the American Convention on Human Rights,
(San Salvador), November 17, 1988, OAS Treaty Series No. 69, 28 Interna¬
tional Legal Materials 156 (1989), Article 17, Protection of the Elderly
(“Everyone has the right to special protection in old age”), and Article 18, Pro¬
tection of the Handicapped (“Everyone affected by a diminution of his
physical or mental capacities is entitled to receive special attention designed to
help him achieve the greatest possible development of his personality”)
(emphasis added).

28. See, e.g., Protocol to the American Convention on Human Rights,

Article 17.

29. See, e.g, United Nations General Assembly, December 10,1948. G.A.
Res. 217A, 3GAOR, Resolutions (A/810), Article 25 (“Everyone has the
right to a standard of living adequate for the health and well-being of him¬
self and of his family, including . . . medical care and necessary social ser¬
vices, and the right to security in the event of. . . sickness [or] disability”).

30. See, e.g., Protocol to the American Convention on Human Rights,

Article 18.

31. Ibid., Article 10, Right to Health.

32. Concluded December 16, 1966. 993 U.N.T.S. 3, Article 10.

33. South Africa Constitution, Ch. II, §27.

34. /</.,§26.
35. See Ann-Marie Slaughter, “A Typology of Transjudicial Communi¬
cation,” 29 University of Richmond Law Review 99 (1994)-
36. Ruth Bader Ginsburg and Deborah Jones Merritt, “Affirmative Ac¬
tion: An International Human Rights Dialogue,” 21 Cardozo Law Review

253> 282 (!999)-

37. 123 Supreme Court 2472 (2003) (ruling that the statute making it a
crime for two persons of the same sex to engage in sexual conduct violates
the due process clause of the Fourteenth Amendment).
362 NOTES TO PAGES 286-289
«

38. See Professor Christopher D. Stone’s discussion of income redistrib¬

ution through labor market and nonworkplace measures in Where the Law
Ends: The Social Control of Corporate Behavior (Waveland Press, 1991), chapter
12.

39. See, e.g., National Child Benefit, “Canada Child Tax Benefit for July
2003,” at www.nationalchildbenefit.ca/ncb/govtofcan4.shtml (visited
June 1, 2003); Columbia University, “Tax Day: How Do America’s Child
Benefits Compare?” Clearinghouse on International Developments in
Child, Youth and Family Policies, Issue Brief, Spring 2002, at www.
childpolicyintl.0rg/issuebrief/issuebrief4.pdf (visited June 1, 2003);
Health Canada Online, “Canada’s Health Care System at a Glance,”
(November 28, 2002) at www.hc-sc.gc.ca/english/media/releases/2002/
health_act/glance.html (visited June 1, 2003); “International Forum on
Common Access to Health Care Services” (January 31, 2003) at
http://social, regeringen.se/forum/pdf/ftnal_statement.pdf (visitedJune
1, 2003); European Commission, Directorate-General XXII, Education,
Training and Youth, “Press Release: Financial Support for Students in
Higher Education in Europe,” at www.eurydice.org/News/Communique/
en/Question_ cles_EN.pdf (visited June 1, 2003); KAM International,
“Canadian Education,” aiwww.kaminternational.com/index.asp (visited
June 1, 2003).

40. “Occupational Outlook Handbook,” National Bureau of Labor Statis¬

tics, Childcare Workers, at www.bls.gov/oco/cocos170.htm (visited June 1,
2003).

41. Grace Chang, Disposable Domestics: Immigrant Women Workers in the

Global Economy (South End Press, 2000), 58.

42. For a discussion of accommodation as conceived of in the Ameri¬

cans with Disabilities Act see Ronald D. Wenkart, J.D., “Public Employ¬
ment Reasonable Accommodation and the ADA,” 133 Education Law
Report 647, 653-54.

43. See, e.g, Elinor Burkett, The Baby Boon: How Family-Friendly America
Cheats the Childless (The Free Press, 2002).

44. See Clark Freshman, “Re-Visioning'the Dependency Crisis and the

Negotiator’s Dilemma: Reflections on the Sexual Family and the Mother
Child Dyad,” 22 Law and Social Inquiry 97 (1997) (reviewing Fineman, The
Neutered Mother).

45. See generally Vicki Schultz, “Life’s Work,” 100 Columbia Law Review
[88i, 1942-57 (arguing for a living wage, the right to work, empowering
work conditions, and reduced hours for all workers).
 NOTES TO PA6ES 293-295 363

Postscript: What Place for Family Privacy?

1. For a fuller account of this theory, see Martha Albertson Fineman,

“Cracking the Foundational Myths: Independence, Autonomy, and Self-
Sufficiency,” 8 American University Journal of Gender, Social Policy and the Law
17, note 11 (2000). Note as well that with the end of entitlement for families
in need represented by welfare reform, the state might respond.

2. The common-law privacy doctrine is not an individualized concept

but rather is founded on the nature of the protected relationship: it at¬
taches to the entity of the family, not to the individuals that compose it.
Historically, this has meant that in certain cases, the doctrine operates to
shield the family unit from state interference, even when the request comes
from one of the family members. Fineman, supra note 1, at 966. Fineman,
“Intimacy Outside of the Family: The Limits of Privacy,” 23 Connecticut
T/17H Review 955, at 966. See also State v. Black, 60 N.C. 262 (1864) (demon¬
strating a court’s reticence to interfere in an admittedly abusive marital re¬
lationship). From that era’s perspective, “abusive” may not be the right
word—the court acknowledged that there was physical violence, but
stated that a husband is permitted to use “such a degree of force as is nec¬
essary to control an unruly temper and make her behave herself” that
this constitutes abuse is a concept not developed until the late 1900s. For
further analysis, see Beirne Stedman, “Right of Husband to Chastise
Wife,” 3 Virginia Regulation 241 (1917).

3. Of course, abuses within real-life families will continue to occur.

However, the issue in those cases should be how to address such abuse
within the parameters of a family privacy ethic. The existence of abuse
should not be sufficient to launch an attack on privacy as applied to the
family. See Fineman, The Neutered Mother, at 187-88.

4. I do argue, however, that individual concepts of privacy are not suf¬

ficient to resist collective control in many areas of intimate and family life.
This is especially relevant in the case of paternity actions, custody awards,
and subsequent modification of custody orders. See Fineman, supra note 3,

at 189-91.

5. Griswold v. Connecticut, 381 U.S. 479 (1965).

6. This limitation on the right to the marital context was clearly on the
mind of a number of justices. In his concurrence, on behalf of the chief
justice and Justice Brennan, Justice Goldberg asserted that our “concept of
liberty protects those rights that are fundamental.” Griswold v. Connecticut,
supra note 5. In delineating which rights rise to the status of being funda-
364 NOTES TO PAGES 295-297
«

mental, Justice Goldberg noted that judges must look at the “traditions
and (collective) conscience of our people to determine whether a principle
is so rooted ... as to be deemed fundamental.” Id.., at 493. Although mar¬
ital privacy is not explicidy addressed in the Constitution, to the dismay of
Justice Stewart, it was embraced as a fundamental right. See id. (Justice
Stewart dissenting.)

7. Id. at 486.
8. Id. Justice Douglas, concerned that the use of contraceptives was
what was prohibited, asked, “[W] ould we allow the police to search the sa¬
cred precincts of marital bedrooms for telltale signs of the use of contra¬
ceptives? The very idea is repulsive to the notions of privacy surrounding
the marriage relationship.” Id.

9. Id. at 495.
10. Eisenstadt v. Baird, 405 U.S. 438 (1972). Laurence Tribe has stated that
the “right of access to contraceptive technology affirmed in Eisenstadt”
was not limited to married couples. Indeed, in Eisenstadt, the court declared
that just such a distinction between married and single persons was uncon¬
stitutional. Tribe further asserted that the court’s decision could hardly be
said to have revolved around marriage or the family. See Laurence H. Tribe,
American Constitutional Law 1423 (2d ed., Foundation Press, 1988).
11. Eisenstadt, supra note 1 o, at 453.
12. The fact that the cloak, as it was spun out, had certain holes does not
detract from the basic point that it was tailored for individual and not entity
protection. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52
(t976)- (“The obvious fact is that when the wife and the husband disagree
on this decision [abortion], the view of only one of the two marriage part¬
ners can prevail. Inasmuch as it is the woman who physically bears the
child and who is the more directly and immediately affected by the preg¬
nancy, as between the two, the balance weighs in her favor.”)

In cases subsequent to Eisenstadt, various doctrinal limitations

and exceptions have been fashioned to curb the reach of this modern
un-family-fettered form of privacy. "While Eisenstadt expanded the notion
of who was protected by privacy, it also seerhs to have contracted the possi¬
bilities of what was protected, focusing primarily on decisions concerning
reproduction. Further, language about deeply rooted traditions from
Goldberg’s opinion in Griswold has proved constricting, limiting protection
to the traditional. See Bowers v. Hardwick, 478 U.S. 1039 (1986).

13. Federal courts have relied consistently on the domestic-relations ex-

 NOTES TO PAGES' 297-298 365

ception to decline jurisdiction in family law matters. This exception to di-

versityjurisdiction was established in Barber v. Barber; 21 How. 582,16 L. Ed.
226 (1859). The overriding attitude of the federal bench is that state courts
are, and continue to be, better equipped to handle domestic matters. Simms
v. Simms, 175 U.S. 162 (1899); McCarty v. McCarty 453 U.S. 210 (1981). This
general reluctance on the part of the federal judiciary may give way to in¬
creased federal activity in family law matters. Judith Resnick argues that
federal intervention in family law is inevitable, however, because an “inter¬
locking enmeshed regulatory structure covers the host of human activity.”
For additional discussion of federal intervention in family law matters, see
generally Judith Resnick, “ ‘Naturally’ Without Gender: Women, Jurisdic¬
tion and Federal Courts,” 66 New York University Law Review 1682, 1750-7

(I991)-
14. The law claims to be absent in the private sphere and has histori¬
cally refused to intervene in ongoing family relations. Elizabeth M.
Schneider, “The Violence of Privacy,” 23 Connecticut Law Review 973, 976
(1991). See also Nadine Taub and Elizabeth M. Schneider, “Perspectives on
Women’s Subordination and the Role of Family Law” in The Politics of
Law: A Progressive Critique 121 (D. Kairys, ed., Pantheon Books, 1982).
15. McGuire v. McGuire, 157 Neb. 226 (1953).
16. Id. at 238. There are many other contemporary cases embodying
this principle of family privacy. Tort law has traditionally been held inap¬
plicable to injuries inflicted by one family member on another. Under doc¬
trines of interspousal and parent-child immunity, courts have consistently
refused to allow recoveries for injuries that would be compensatable but
for the fact that they occurred in the private realm. In the same way, crim¬
inal law has failed to punish intentional injuries to family members. This
principle can also be seen in common-law and statutory definitions of
rape that continue to carve out a special exception for a husband’s forced
intercourse with his wife. Furthermore, wife beating was initially omitted
from the definition of criminal assault on the ground that a husband had
the right to chastise his wife. See Schneider, supra note 14, at 976.

17. I William Blackstone, Commentaries, 447.

18. This line of family privacy was given constitutional protection fairly
early by the Supreme Court, in cases such as Meyer v. Nebraska, 262 U.S.
390, 399 (1923) (holding that substantive due process guarantees the right
“to marry, establish a home, and bring up children”). The right to marry is
a family formation issue. The rights to use contraception (Gnswold) and
bring up children are family conduct or function issues. See also Wisconsin v.
366 NOTES TO PAGES 298-3OO
«
\
Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321 U.S. 158(1944); Pierce v.
Society of Sisters, 268 U.S. 510 (1925).

19. It is this sense of privacy that I define as an ethic or ideology. It tran¬

scends law as such and informs the way that laws are interpreted and un¬
derstood. Law can be utilized in the ideological project, but it cannot be a
substitute for it. See generally Fineman, supra note 3, at 14-24.

20. The far-reaching potential of the individual, constitutional version

of privacy to protect a wide range of intimate decisions has been limited in
subsequent cases. Privacy has been limited to conventional, heterosexual
expressions of sexuality (see Bowers v. Hardwick, 478 U.S. 1039 [1986]);
eroded from its initial, expansive application in the abortion context (see
Planned Parenthood v. Casey, 510 U.S. 1309 [1994]); and generally not applied
to much beyond a narrow category of intimate decision making, notably
family (see Meyer v. Nebraska, 262 U.S. 390 [1923]), marriage (see Griswold v.
Connecticut, 381 U.S. 479 [1965]), and procreation (see Roe v. Wade, 410 U.S.
959 [9973]; Skinner v. Oklahoma, 400 U.S. 995 [1971]).

21. The feminist critique of our common-law family privacy doctrine

concludes that it is unavailable to protect women and children because as
individuals they are then subjected to potential dominance and oppres¬
sion. See generally Taub and Schneider, supra note 14. See also Fineman, supra
note 2, at 968. Elizabeth Schneider asserts that in the private sphere of do¬
mestic and family life, which is purportedly immune from law, there is a se¬
lective application of the law. That by invoking privacy, Schneider argues
this selective application of the law serves as a rationale for immunity in
order to protect male domination. See Schneider, supra note 14, at 977.

22. Privacy appears to rest on a division between public and private

realms that has been oppressive to women and has supported male domi¬
nance in the family. The notion of marital privacy has been a source of
oppression to battered women and has helped to maintain women’s sub¬
ordination within the family. See generally Schneider, supra note 14.

23. The contrived ties are those the law constructs between biological
strangers through such devices as marriage (which creates husband and
wife) or adoption (which creates parent [s] and child). Ties of a “natural”
nature are those of consanguinity, although only some of these family ties
are reinforced by law in modern societies. Interestingly, while parents have
a legal obligation to their minor children, adult children are not generally
responsible for their parents.

24. The Supreme Court recognized this conception of family in May-

 NOTES TO PAfiES '3OO-302 367
IT

nard v. Hill, 125 U.S. 190 (1888). Marriage “is an institution in the mainte¬
nance of which in its purity the public is deeply interested, for it is the
foundation of the family and of society, without which there would be nei¬
ther civilization nor progress.” Id. at 211.

25. I am not asserting that this is how families actually operate; rather,
this image is aspirational or idealized. Law certainly reflects a bias for the
reproductive unit as the appropriate family form, as evidenced by the fact
that the basic family relationships in our jurisprudence are those of hus¬
band and wife and parent and child. Those outside of these specified rela¬
tionships will often analogize their intimate relationships to one of these
paradigmatic ones in order to argue for benefits conferred upon the tradi¬
tional family.

26. For a historical account of parental rights, see generally Barbara Ben¬
nett Woodhouse, “Who Owns the Child? Meyer and Pierce and the Child
as Property,” 33 William and Mary Law Review 995 (1992). For a discussion of
the modern trend in parental rights, see Woodhouse, “A Public Role in the
Private Family: The Parental Rights and Responsibilities Act and the Pol¬
itics of Child Protection and Education,” 57 Ohio State Law Journal 393

(1996).
27. In “Hatching the Egg: A Child Centered Perspective on Parents
Rights,” 14 Cardozo Law Review 1747 (1993), Barbara B. Woodhouse first ad¬
vocated this new approach to the parent-child relationship, terming it the
“generist perspective.” It is based on the view that the nurturing of the
next generation is the touchstone of the family. An adult s relationship
with children is one of trusteeship rather than ownership. Adults’ “rights”
of control and custody yield to the less-adversarial notions of obligation to
provide nurturing, authority to act on the child s behalf, and standing to
participate in the collaborative planning to meet the child s needs. For
more on the generist perspective, see Woodhouse, “ ‘Out of Children s
Needs, Children’s Rights’: The Child’s Voice in Defining the Family,” 8
Brigham Young University Journal of Public law 321 (1994)-
28. Woodhouse, “Out of Children’s Needs, Children’s Rights,” supra

note 27, at 394.

29. Id.
30. The claim is that caretaking is society-preserving work and entitled
to subsidy for that reason. See Fineman, Neutered Mother, at 394.

31. I have done this in regard to the dichotomies of independency-

dependency and self-sufliciency-subsidy in another context, taking the
368 NOTES TO PAGES 302-307
«
% . ...
stigmatized component of the comparison and arguing that it is both in¬
evitable and universal. See Fineman, supra note 1. This phase of the proj¬
ect involves considering the concept of autonomy. I think this is what we
should be arguing for—the freedom to self-govern, which is not the same
as perceiving ourselves as independent and self-sufficient.

32. This is the position of the nuclear family today. It is afforded pri¬
vacy, and for the state to intervene, it must provide sufficient justification.
For more on this, see Fineman, supra note 2, at 968.

33. Here, privacy and subsidy are conceived of as intertwined rights

that support an entity against the state. As such, they would actually facili¬
tate a move away from form to function. Autonomy carries with it the abil¬
ity to define the unit.

34. For example, marital rape and domestic violence would be treated
under the same set of rules that would apply to legal strangers (which is
what they become without or outside the family label).

35. Perhaps this is why so many scholars neglect the family. This is also
an illustration of the way in which we are fixated on gender relations, the
way that ordering (symbolically or otherwise) the relationship of sexual af¬
filiates dominates our attention and distorts analyses in regard to other re¬
lationships.

36. I recognize that this will happen in some cases, but this realization
should not provide the operative assumption for parent-child relation¬
ships. If it becomes the operative assumption, it creates a culture for state
intervention and control.

37. I find that sort of belief underlying statements such as Woodhouse’s

“children are people in their own right.” Woodhouse, supra note 26, “A
Public Role in the Private Family,” at 394.

38. See Fineman, “Cracking the Foundational Myths,” supra note 1.

39. A clear concept of entity-focused privacy could make a difference in
a number of areas. For example, in custody determinations, the initial de¬
cision would be made under a primary caretaker standard because it is this
standard that respects the autonomy and decision making of the prior unit
and respects decisions that were made within the marital family by vali¬
dating them at divorce. In addition, entity privacy would require that once
a determination was made, it would be final. Modification, absent abuse
or neglect findings that apply to all entities, would not occur simply be¬
cause there were changed circumstapces, as is now the rule in most juris¬
dictions. Entity privacy would require the same respect for postdivorce
 NOTES TO*PAG'E 3°7 369
&

caretaking units as is shown to two-parent units. There would also be im¬

plications for the welfare context, because single motherhood would not
be stigmatized. Certainly the current official coercive conduct and investi¬
gation of sexual activities associated with paternity proceedings would be
affected.

40. A functional approach to the family is a process. Each generation

must struggle with the question of what public expectations and aspira¬
tions are to be placed on the family. Further, we must explicitly not only
consider the roles or functions we want our families to play, but also ask
what resources they will need to perform those functions. The question of
what sources can be tapped to supply necessary family resources must also
be addressed. This process places the family in the context of other socie¬
tal institutions. Finally, the question of family privacy must be addressed.
Society must resolve how porous the family will be, and how much auton¬
omy is to be ceded.
 «

V
 Index

affirmative action, 25—228, 273, autonomy

275-280 collective responsibility for, 30
and models of feminism, as cultural ideal, 34, 272-273
157-166 defined, 7
and voluntarism, 219—221 and economic self-sufficiency,
African Charter on Human and 9, 20, 22,31
Peoples’ Rights, 281 and equality, 8
Agency for Health Care Policy and equality of resources,
and Research, 251 9-10, 29-30
Aid to Families with Dependent of the family, 21, 22, 27
Children (AFDC), 238, as foundational myth, 20, 272
265-266 individual, 21-22, 26-27, 271,
Alabama, antimiscegenation 272
laws in, 32omg and privacy, 9
Allen, Anita, 152-153, 300 as self-governance, 18-19,75
altruism, 31-33, 48, 278-280 within the family, 21
and charity, 292
American Convention on Baehrv. Lewin, 107, 327ni5
Human Rights, 281 Bakan,Joel, 274-275
American Law Institute (ALI), Baker v. State, 104, 327ni4
124, 128,129 Barber v. Barber, 3 63m 3
antimiscegenation laws, 32oni9, Bartlett, Katherine, 166-167,

330n47 173
Apel, Susan B., 324n82 Bayevsky, Anne, 360^4
372 INDEX

Benabou, Roland, 222-223, Truths” (Council on Civic

349nI3 Society), 72, 89-90

Bergmann, Barbara R., 45 capitalism, 38. See also market
Bernstein, Nina, 91 caretakers
biological dependency incompatibilities with paid
as inevitable dependency, labor, 36,46-47, 172,
47-48 178-179, 201, 244, 260,
as social debt, 48 340028

Boswell, Christina, 211 as producer of social goods,

Bowers v. Hardwick, 328ni6 47-49, 288-289
Boyle, James, 221 as providers of subsidy, 50
Bradley, Joseph P., 117-118, 125, as unpaid domestic labor,
33604 36, 42-44, 262, 314115,
Bradwellv. Illinois, 117-118,120, 336116
125, 161, 163, 336n4 caretaking
Brand, Chad, 131, 333025 as function of family, 67, 169,
Broder, David S., 75 J99,336n6
Brofenbrenner, Urie, 256 and gender neutrality, 187,
Brown v. Board of Education, 158, 192-193
273 Cato Institute, 3i7n40
Bush, George W. Center for Contemporary
antiunionism of, 354026 Families, 114
dependency, divisive rhetoric Chang, Grace, 286-287
of, 3I3n3 child care
educational policy, and class, 40, 286-287, 3i5ni6
359nI2 day-care, 41
farm subsidy, 52, 317042 economic considerations, 45,
marriage as social policy, 75, 249, 286-287, 3i6n24,
II3—II4, 33mi 3i6n25, 3i6n26
supply-side economics, 268, employer-sponsored, 45
359n4 nannies, 41, 3i5n20
Temporary Aid for Needy and race, 40, 286-287, 3i5ni6
Families (TANF), 39 and self-sufficiency, 39
state-sponsored, 45
“A Call to Civil Society: Why and welfare reform, 40, 315016
Democracy Needs Moral child custody
 I N D'tE x 373

“best interest” test, 188, 191 marriage as social policy, 78,

and gender neutrality, 80
186-188, 342015 National Commission on
joint custody of children, 183, Civic Renewal, 72, 3i9n2

191 opinion polls, use of, 73-74,

primary-caretaker standard, 82, 90, 322037, 322047

187,19°)!92 civil unions, 95-120,129,145-155

unwed fathers, claims for, 197 class
child support, 85, 89, 185, and child care, 40, 315m 6
I94“I95>203, 33gni2 Clinton, William Jefferson, 72,
children 3i7n40
as commodities, 42-43 collective responsibility
effects of unstable families, 115 and autonomy, 30
legitimate vs. illegitimate, and derivative dependency, 43,

i39_i4°j 335*M9> 33505° 285, 293

molestation of, 334038 and inevitable dependency, 38,
poverty levels, 8, 31002 i99> 285, 293
choice for social debt, 47-49, 53,
and cultural scripting, 40-41 93-94
efficiency of exploitation, 44 Colorado Initiative for
“Porsche preference”, 42-44 Responsible Fatherhood,
and social contract, 225 3441142
“Christ-Centered Marriages: communitarians. See civil
Husbands and Wives societarians
Complementing One Constitution for the Republic of

Another” (Brand), 131, South Africa, 283

contract, private. See also social
333n25
Chrysler Corporation, 51 contract

citizenship, 10—12, 76-88 alteration of, 230, 350026

civil societarians background conditions,

citizenship, 77 230-231, 35on27

Council on Civil Society, 72 consent, 225
and economic institutions, 81 contracts of adhesion, 220,

and marital family, 71, 77-78 242, 34806

marital family, moral general principles, 219-220,

superiority of, 74 348n7

 INDEX
374

contract, private (cont.) cultural scripting

law, reliance upon, 229-230 and choice, 40-41, 163
noncompetition contracts, choice, 226

243 motherhood, 145-146

contract, psychological, 244-249,
287-291 de Carvalho, David, 211-212
and the social contract, Defense of Marriage Act of
219-240 i996> 3201120
Coontz, Stephanie, 114-115 dependency. See also
corporate welfare. See also public independence
welfare costs of, 46-47,53
acceptance of, 51 distribution of responsibility
defined, 51 for, 208-209, 237-239,
efforts to curtail, 317040 261
as entitlement, 32-33 divisive rhetoric of, 34, 313^
farm subsidy, 52, 317043 forms of, 35—38
as subsidy, 51—52 stigmatization of, 8, 28, 31, 54,
Cott, Nancy F., 318m 228, 292, 363m
Council on Civil Society universal inevitability of, 33,
“A Call to Civil Society: Why 261
Democracy Needs Moral welfare mother, 31—32
Truths”, 72 derivative dependency. See also
civil society, definition of, 80, inevitable dependency
3211131 caretakers, 35—36, 42-44
and marital family, 80, 321027 economic considerations, 45,
marriage as social policy, 3161125, 3i6n26
80-81 economic inequities of, 42-43,
morality, decline of, 80, 89-90, 226
32in26 and family, 41-45, 76, 228
nonmarital births, 32in26 v mothers, 41-42
“Report to the Nation”, 80 Disposable Domestics (Chang),
single-parent families, 32in26 286-287
Covey, Stephen divorce, 78, 79, 82
on independence, 29 19th century, 116-117, 330n43
Seven Habits of Highly Effective „ effect on children, 83-84,
People, The, 29, 313043 85-86
 I I* D E X 375

under English law, 116, 330041 178-179. 201, 244, 287,

joint custody of children, 183, 340028

I91 inequality of relationship,

no-fault, 80,119-120,124, 125, 243-244

W-'33> i84 instability, 91, 244-248

non-custodial fathers, 194-195 labor unions, 252-255, 354^6
reform, 161, 162,167—168 living wage, 249, 281, 282, 287
shared parenting model, 190 social welfare benefits,
state regulation of, 151 249-250, 287, 313m
tort law, 334n36 employment, maternal
domestic partnerships. See increases in, 92
nonmarital relationships obstacles to, 41-42, 315021
domestic violence, 21, 88,152, stigmatization of, 41
162, 324n82, 337ni4 equality. See also inequality
downsizing, 93, 241—262, and autonomy, 8, 9-10, 271
267-269 and derivitave dependency, 38
due process, 19. See also law, rule equality of resources, 9-10,
of 29-30
equality-of-result, 27
economic goods, delivery of, 105, formal equality, 273-274
3271115 gender, 37,120,122
egalitarian family and gender neutrality, 189
described, 61-63 historical context, 22-23
state regulation of, 63-64 rhetoric of, 25
symbiotic nature of, 61, 3i8n2 substantive equality, 274-277,
Ehrenberg, John, 93 285, 359nI°
Ehrenreich, Barbara, 258-259 workplace, 178
Eisenstadtv. Bairn, 296, 363ni2 Etziono, Amitai, 64-65
elderly, poverty levels of, 8, 31003 European Convention for the

Eliade, Mircea, 12 Protection of Human

employment Rights and Fundamental

as contract, 241-243 Freedoms, 281

employment-at-will, 242
health insurance, 251 Families and Work Institute, 248

incompatibilities with family

caretaking, 36, 46-47, 172, and autonomy, 21,58, 164
376 INDEX

family (cont.) contract language, use of,

and coercive institutions, 63, 334n4°
15b237-239, 265-266 divorce reform, 167-168
costs of dependency, 46-47 domestic violence, 167-168
and derivative dependency, and economics, 176, 340026

4I_45.53; 76 as exemptions to public law,

and inevitable dependency, 108-109, 334041, 334045,

36-37; 38,53. 76 348n4. 350n36

members, rights and gender-neutral language, 182,
responsibilities of, 109, 118, 186, 202
148, 328mg primary-caretaker standard,
poverty levels, 91 187, 19°, 192
as private institution, 38, reproductive rights,
57-59.108-109, i63-i64. 167-168
176,199; 207-208,223, family law reform, 178,186,
293-294; 298-300, 345m, 326m
36302, 363016, 363018 Family Medical Leave Act
social goods, provision of, (FMLA), 251
236 Farm Security and Rural
state intervention in, 109, 151, Investment Act, 52
237-239; 265-266 farm subsidy, 52, 317043
traditional division of fatherhood, 189,195-202,
responsibility, 39, 117-119, 344042
136-137. i63,167,177, 184 fathers’ rights movement, 186,
family, forms of, 65-66 190,192, i94-!97. 342mi,
egalitarian family, 61-64, 147, 344044
167, 200-201 federalism, 19, 237-240, 264-267
heterosexual cohabitants, Feliciano v. Rosemar Silver, 113
111-112,329031 feminism, 337m
marital family, 38-39, 59 v backlash against, 167, 173
same-sex cohabitants, 112, scapegoating of, 170-171
329n3I feminist legal theory
single-parent families, 67, 73 care taking, 169
family law dependency, 172-175
and child dependency, state - descrimination, sex-based,
interest in, 139 158-159, I7b 339ni6
 I N't) E X- 377

divorce reform, 161,162 gender equality

effects on society, 173-174 accomodation, 179
family equality, 159-160, and dependency, 37
162-164 and marriage, state regulation
and gendered violence, 162, of, 122, 147
166 religious backlash, 130,168
historical context, 338n6 work-family conflict, 164-165,
and marriage, state regulation 168,171-172,193
of, 122 gender equality movement,
marriage as egalitarian 124-125, 186
partnership, 161—162 gender neutrality
privacy of family, 150-155 and child custody, 186
women, subordination of, 158, and equality, 189
159,166 Ginsburg, Ruth Bader, 158, 284
work-family conflict, 165-166, Gomes v. Perez, 3351150
171-172, 180-181, 200-201 Griswold v. Connecticut, 295
Fitzpatrick, Joan, 360024
Folbre, Nancy, 314^ Hawaii, Supreme Court of, 107,
Foundations of the Economic 327nI5
Approach to Law (Katz), 176, Health Affairs, 250-251
health insurance, 8, 251, 3ion4
340n25
Frank, Robert, 258 Helburn, Suzanne W., 45
Freeman, Richard, 253-255 Hetherington, Mavis, 85-86
“Higher Education: The

Galinsky, Ellen, 92 Ultimate Winner-Take-All

Galston, William Market” (Frank), 258

childhood poverty, 83, households

family, 110-112
322n53
divorce, effect on children, non-family, 112

83-84 human rights standards,

on marital family, 72, 81-82 281-283, 36on23, 36on24

marital family as social policy,

In Re Marriage of Greenwald,
i97~I98
on morality, 81-83, 84-85 127

opinion polls, use of, 82 income disparity, 89, 258-259,

gender, 156-157, 338^ 357n58

378 INDEX

income redistribution, privatization of, 35-36, 38,40,

opposition to, 32, 269-271, 203, 228
287-291 Institute for Women’s Policy
independence. See also Research, 203-204
dependency insurance, 90
and autonomy, 20, 22, 31 interdependence, 29
as cultural ideal, 34 International Covenant on
defined, 7 Economic, Social, and
historical context, 15 Cultural Rights, 281, 282,
and self-interest, 32 283
subsidization of, 3-4 international norms, 280-284
universal attainability, illusion and collective responsibility,
of, 32 284-287,287-291, 302-307
“Index of National Civic and the family, 207-217,
Health” (National 229-240
Commission on Civic
Renewal), 79, 90, 91 justice, 4-5, 24, 31-54, 259-262
individual initiative and and feminism, 156—181
inherited wealth, 3-4 international conception of,
individual responsibility, 3-6, 280-284
18-22, 31-54, 47,48, and parenting, 182—204
263-267, 271-273 and the social contract,
individual rights, 18-19, 20 232-233
inequality. See also equality
and autonomy, 20 Kant, Immanuel, 335046
economic, 90-91, 92-93, Katz, Avery, 176, 34on25
255-256, 34-on28, 355033, Kentucky, Supreme Court of,
355n36, 355041 126-127
perpetuation by policy, 3-4, Kittay, Eva, 215
165, 34om9 Klug, Scott, 317040
and redistribution, 3491113 Kohut,* Andrew, 75, 319010
inevitable dependency. See also
derivative dependency labor, domestic, 36, 42-44,
defined, 35 286-287
and derivative dependency, 36 labor, workplace, 36, 46,166-175,
and family, 36, 76, 174 241-262
 inC'ex 379

and feminism, 166-175, market

178-180 and child care, 39-40, 314014
value of, 287-291 civil society, effect on
law, rule of, 17-18. See also due development of, 79, 92
process as consumer, 43
Lawrence v. Texas, 284, 361037 contracts, 220
Levy, Frank, 32 costs of dependency, 46—47
Levy v. Louisiana, 335049 independent spheres,
Lister, Andrew, 86 integration of, 201-202, 260
Locke, John, 213, 3iing, 347n2 and inevitable dependency,
Loving v. Virginia, 320019, 3301147 37
law, reliance upon, 229-230,
MacKinnon, Catherine, 152, 35on24
as public institution, 108, 223
300>303
marital family. See also civil social goods, provision of, 90,
societarians; nonmarital 236,246,250, 251
families; single-parent marriage. See also prenuptial

family agreements
and child care, economic in 19th century, 102—103,113

considerations of, 45-46, anullment, 3341142

and autonomy, 26-28,146
3l6n25
and civil societarians, 32in27 civil benefits and protections,

decline in numbers of, no—in, 104-105, 327ni4

3291123 contract view of, 121,122, 128,

as legal category, 75, 123,146 i33-I38. 231

poverty levels, 114 covenant marriage, 80,

responsibilities of, 101, 13^33,32in33

140-141 criminal law, 33on45

sex and reproduction, 101 and domestic violence, 88,

state regulation of, 59-61, 152, 324n82,337014

101-102, 318m, 32708 and economic goods, delivery

and subsidy, 61 of, 105, 327n!5

as traditional form, 59-60, effect of work-related stress

64-65, 67,113,32708 on,92, 248-249, 326ni2

marital privacy as legal doctrine, as egalitarian partnership,

146-147,161-162,168
98-99.326n4
 INDEX
3So

marriage (cont.) “Married-Couple and

as essential institution, 102, . U nmarried-Partner
113, 327mo Households 2000” (U.S.
as exclusionary institution, 78, Census Bureau), 111-112
105, no, 150 Marshall, T. H., 276-277,
feminist critiques of, 149-150 280
as gendered institution, 88, Marshall, Thurgood, 284
117-118, 148-149,159-161, maternal employment
336n5> 336n6 economic incompatibilities of,
historical origins in English 46-47> 3161131
Law, 115-116, 117, 137 stigmatization of, 41
historical origins in natural Matrimonial Causes Act of 1857
law, 117, 33004.7 (England), 116
as impediment to family Maynard v. Hill, 102, 366024
policy, 122 McCluskey, Martha T., 279-280,
as legal category, 134 359nl6
meaning of, personal, 99, 105, McGuire v. McGuire, 297—298
106 Meadows, James, 245
meaning of, societal, 100,106, men
328ni6 breadwinner masculinity,
mutability of, 103 343n25
non-marital sexual affiliations, caretaking, 177,191,192,194,
illegality of, 137, 334045 201-203, 343024
and privacy, 97-98, no child custody, 190-191
property law, 330045 and intimacy, 101, 327n6
and religion, 105,130-133 male problematic, 101
in secular state, 103-104 polygamous nature of, 100
and social goods, delivery of, as primary economic
105,107-108, 327ni5 providers, 185-186, 192,
as social policy, 75, 78, 80-81, ■796, 203, 342031
122,132-133,184,197-198 unwed fathers, stability of,
as source of morality, 102-103, n5
327ml meritocracy
state regulation of, 78, 80-81, affirmative action, 26
97, 99,100,101-106, 151, ‘ and inherited wealth, 4
336n9 social advantages, inequality
tort law, 97, 326n2, 3301145 of, 4-5
 1 n h e x 381

Michel, Sonya, 280 Civic Renewal), 72, 31902,

Minow, Martha, 179 3*9n8
Moen, Phyllis, 326M2 civil society, definition of,
monogamy, 330047 32on23,321031
morality, 102-103, 327ml marriage as social policy, 78
Morris, Christopher, 34702 National Bureau of labor
motherhood Statistics, 286
cultural scripting, 145 National Commission on Civic
and dependency, 169-170, 175, Renewal
340n20 “A Nation of Spectators: How
and economic inequality, Civic Disengagement

179 Weakens America and

as legal institution, 183 What We Can Do About
single-motherhood, backlash It”, 72, 31902, 31908
against, 184,197 citizenship, 77
myth civil society, definition of,
critical examination of, 15—16 32on23,321031
irrefutability of, 15 “Index of National Civic
rhetoric of, 16-17, 25 Health”, 79, 90, 91

and status quo, 16 and marital family, 77-78

and value systems, 17, 312037, marriage as social policy, 78
National Organization for
3I2n38
Myth and Reality (Eliade), 12 Women (NOW), 114

myths, foundational, 11-13, Nebraska Supreme Court,

17-18, 3iini8 297-298

autonomy, 10, 18-22, 26—27 Neutered Mother, the Sexual Family,

equality, 22-25, 27 and Other Twentieth Century

myths, political, 12, 13-143 Tragedies, The (Fineman),

15—16 H5
New Deals: The Chrysler Revival and

Nader, Ralph, 317040 the American System (Reich),

nannies, 315016, 315020 5!-52

“A Nation of Spectators: How New York Times, 245

Civic Disengagement Nickel and Dimed: On (Not) Getting

Weakens America and By in America (Ehrenreich),

What We Can Do About It’ 258-259

(National Commission on Nixon, Richard, 279-280

382 INDEX
«

nonmarital births, 78, 79, hi, Okin, Susan Moller, 88, 215
3211126 Olsen, Frances, 150-151
nonmarital families. See also
marital family parental leave, 172, 339ni7,
and children, absence of harm 339oi8
to, 101-102, 198-199 patriarchy, 38, 118, 130, 177, 184,
stigmatization of, 113 i96> 34In5
nonmarital relationships Personal Responsibility and
anullment, 3341142 Work Opportunity
child dependency, civil Reconciliation Act of 1996,
benefits and protections, 113
H0, 335n5° Personal Responsibility, Work,
and child dependency, state and Family Promotion Act
interest in, 139 of 2002, 3181147
contract view of, 128-130, philanthropy, 357065

I33_I3^> 333n34, 334037 Phillips, Anne, 259-260

contract view of, and child poverty, 31-32, 88-94, 255-262,
dependency, 138-139 265
criminal law, 135 poverty, shame of, 3171141
division of property, 129, poverty levels
3321117 children, 8, 83, 89, 91,
domestic partnerships, 129, 256-257, 3ion2, 322053,
*33 3250104, 356048
domestic violence, 135, 152, disabled, 8
333n35>337ni4 elderly, 8, 3ion3, 322053
sex and reproduction, families, 91,114, 249, 255,
i36-r38, 334^39 3250107, 357n56
as social policy, 135-136, state regulation of, 222-224,
334038 292-297
state regulation of, 136 prenuptial agreements, 60,
tort law, 135 125—127, 33208,332ni5,
Nozick, Robert, 212-213, 215 334040
Prince v. Massachusetts, 327118
Occupational Safety and Health privacy, 9
Act of 1970, 279-280, and caretaking, 293, 302-307,
359m6 367030
 I N EfE X
383

of children, 301-302, 367027 Reagan, Ronald, 267, 358^,

in commercial relationships, 359oi6
98 Reich, Robert B., 51-52, 317040
and domestic violence, 162 religion
individual, 295-297, 36304, and marriage, 105,130-133
366020 women, subordination of, 148,
and marriage, 97-99, 366023, 160-161, 33604
366024 “Report to the Nation” (Council
reproductive rights, 295—296, on Civil Society), 80
36306, 36308, 363012, civil society, definition of, 80,

363013 321031
Roe v. Wade, 152 and marital family, 80,
state intervention in, 150-152 321027
and subordination of women, marriage as social policy,

152 80-81
private investment, 313m morality, decline of, 80,
Promise Keepers, 65, 130—131, 32in26

344046 nonmarital births, 321026

Proposed Rules for Dissolution of single-parent families, 321026
Marriage, 128, 129 “Republican Contract with
public welfare. See also corporate America”, 237-239,
welfare 265-267, 352044
public welfare, stigmatization of, Republican Party, antiunionism

3!-32 of, 354026

Resnick, Judith, 363013

race and child care, 40, 86, responsibility, collective

3i5ni6 and autonomy, 30

rape, marital, 135, 137, 167, and dependency, 271

334n38,334n43, 334044, and derivative dependency,

335046,337014 285, 293

Rawls, John, 212 and inevitable dependency, 38,

criticism of, 215, 217 199,285,293

difference principle, 214-215 for social debt, 47-49, 53,

equal basic liberty, 214, 215 93-94, 263

justice, 4, 213-214, 215-216 responsibility, individual, 9,47,

veil of ignorance, 4, 214 48

384 INDEX

retirement sex and reproduction

4OI(k), 3x3ni contract view of, 137-138

private investment, 313m Simeone v. Simeone, 126
Social Security, 313m single-motherhood, backlash
Reynolds v. United States, 102 against, 184,197
Rimer, Sara, 93 single-parent families, 73, 82. See
Roe v. Wade, 152 also marital family
Rogers, Joel, 253-255 and child care, economic
Roosevelt, Franklin D., 278-279 considerations of, 45,
3i6n26
same-sex marriage and civil societarians, 78,
and children, 327n8 32in26
civil benefits and protections, contract view of, 136, 334039
106,107, 327014 increase in, 67
Defense of Marriage Act of increases in numbers of, 111,
I996,320n20 3291123, 329024
opposition to, 106 poverty levels, 114
religious benefits and school readiness, 85, 323^7
protections, denial of, state regulation of, 185
106 social citizenship, 277, 280
Scalia, Antonin, 3i2n28 social contract. See also contract,
Schor, Juliet, 31405 private
Schwartz, Pepper, 86-87 alteration of, 234
self-sufficiency background conditions,
and autonomy, 20, 31 232-233> 234. 239
and child care, 39 choice, 225-226
as cultural ideal, 34 consent, 224-225, 226-227
defined, 7 economic libertarians, 224,
economic, 9 349ni4
of women, 183 family as background
separation agreements, 334040. condition, 233
See also prenuptial as foundational myth, 11-12,
agreements 218-219, 221, 3iing
Seven Habits of Highly Effective lawmaking, 220—221
People, The (Covey), 29, liberal political, 224,
3!3n43 .349ni5
 I N D E X 385

market as background as consumer, 43

condition, 233 costs of dependency, 46-47
private and public, 223-224, and divorce, regulation of,
228-229 151
social contract theory, economic goods, delivery of,
209-212, 218-219, 347n2 105, 327ni5
and societal change, 234—235, and inevitable dependency, 37

236, 35on35>35on38 and marriage, regulation of,

state as monitor, 222, 227, 264, 103-104, 151, 336n9
268-269, 290 and privacy of family, 38,
and status quo, 222 108-109,150-151
social debt, responsibility for, as public institution, 58-59,

47-49 108,223
social goods, 28 relationship to market,
allocation of, 102 269-270, 282, 290
caretakers as producers, 47-49 social contract, alteration of,
delivery of, 105,123, 199-200, 237-239> 265-266, 267,
236,327ni5 3521142

social justice, 48, 262 social debt, responsibility for,

Social Security 263-264
disability benefits, 8 social goods, delivery of, 105,
retirement, 313m 107-109,123, 199-200,
societal responsibility. See 259-260,285, 327015,
collective responsibility 357n65
South Carolina, State of America, The
antimiscegenation laws in, (Brofenbrenner), 256

3201119 Stavey, Judith, 85, 323072

Southern Baptists, 65, 130-131, Stone, Katherine, 246-247, 253
subsidy
333n25
speech, right of, 19 caretaking, support for, 285

state corporate welfare, 51-52

child welfare, 139 defined, 50

civil society, effect on divisive rhetoric of, 34, 31303

development of, 79 entitlement, 49-50, 250, 266,

coercive institutions, 63,151, 352044

220,292 as loss of autooomy, 9
386 INDEX

subsidy (cent) U.S. Constitution, 3iinio

private, 50 , Bill of Rights, 18—19
public direct, 50 federalism, 19
public indirect, 50 Fifteenth Amendment, 23
social goods, 285 Fourteenth Amendment, 23,
stigmatization of, 8, 9, 28, 124, i58) 3201119, 3351149,
3I_32> 5b 54) 292, 363m 335050
universality of, 33, 50 historic inequities of, 103
supply-side economics, 267—268, Nineteenth Amendment, 23,

358n3, 359n4 124,33in2

Preamble, 11-12, 13, 218,
TANF (Temporary Aid for 321026

Needy Families), 39-40, strict constructionists,

34m3 312028

taxation Thirteenth Amendment, 23

inheritance, 4, 310m U.S. Declaration of
as tool, 265, 286 Independence, 15, 18,
Temporary Aid for Needy 321026

Families (TANF), 39-40, U.S. Supreme Court

34In3 Bradwell v. Illinois, 117—118,

Thorne, Barrie, 338n6 33604
Tocqueville, Alexis de, 102-103 Brown v. Board of Education, 158,
Torrey, Jay L., 52 273
Tudor, Henry Eisenstadt v. Baira, 296, 363012
on political mythology, 13-14, Gomes v. Perez, 335050

*7 Griswold v. Connecticut, 295, 298

jury service, 124
Uniform Marriage and Divorce Lawrence v. Texas, 284, 361 n37
Act (UMDA), 147 Levy v. Louisiana, 3351149
Uniform Premarital Agreement Loving v. Virginia, 320m 9
Act of 1983,127-128 Maynard v. Hill, 102, 366024
Universal Declaration of Meyer v. Nebraska, 363018
Human Rights, 281, 284 Reynolds v. United States, 102
University of Chicago Divinity Roe v. Wade, 152
School, 324090 Weber v. Aetna Casualty & Surety
U.S. Census Bureau, 111-112 Co-, 335050
 I N D'E X 387

value systems, 17, 3121137, 3121138 Williams, Wendy, 180

Vermont, 129 Wilson, William Julius, 93
Vermont, Supreme Court of, women
104,107 and child care, 40, 3i5ni6,
voting rights, 23 3!5n20
and child rearing, 40,41,
wages 3r5nI9
instability, 91 and derivative dependency, 37
stagnation, 89, 93, 251, 257 in family, traditional rights and
Waldron, Jeremy, 231, 232 responsibilities of, 148,
Wall Street Journal, 246 336n4
Weber v. Aetna Casualty & Surety jury service, 124

Co., 335n5° maternal employment, 41

welfare self-sufficiency of, 183
corporate, 32-33, 51-52 voting rights of, 124, 33 m2
public, 31—32, 168 women, subordination of, 86-87,
welfare assistance 117-119, 124,130-131, 152,
stigmatization of, 39 332n6> 333n25
withdrawal of, 90 Woodhouse, Barbara B., 301-302
welfare reform, 34 Working Families Party, 253
and child care, 40, 3i5ni6
family cap provisions, 53 Young, Iris Marion, 86—87,
legislation, 52-53, 238, 197-198
265-266
paternal economic Zinsmeister, Karl, 83
responsibility, 197 Zipesjack, 312^7
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 tS

MARTHA ALBERTSON FINEMAN,

formerly the Dorothea S. Clarke Professor of
Feminist Jurisprudence at Cornell Law School,
is a Robert W. Woodruff Professor of Law
at Emory University, where she is the director
of the Feminism and Legal Theory Project.
She is the author of The Neutered Mother, the
Sexual Family, and Other Twentieth Century

Tragedies and The Illusion of Equality:

The Rhetoric and Reality of Divorce Reform.

THE NEW PRESS

38 Greene Street New York, NY 10013

www.thenewpress.com

Jacket design by Empire Design Studio NYC

Jacket photograph by Plastock/Photonica
Author photograph by Carolyn Wright
 % € ■
“PROFESSOR FINEMAN REMINDS US OF TRUTHS too oftej
ignored in current policy debates: autonomy is a myth—
dependency is universal and caretaking undervalued....
Anyone interested in thinking seriously about marriage law
or family policy should read this book."
—Brian Bix, Frederick W. Thomas Professor of Law and Philosophy,
University of Minnesota

o§o

"FINEMAN HAS DONE IT AGAIN! She has written another

book that promises to provoke public debate about an
. essential aspect of American life—our lack of autonomy.
iFineman skillfully shows how the myth of our independence
■creates, aggravates, and exacerbates political, economic,
fend social injustices and inequalities in the United States."
Ruth O’Brien, Professor & Chair, M.A./Ph.D. Political Science
Program, The Graduate Center of the City University of New York

Mi l
ISBN 1-56584-760-1
9 0 0 0 0

9 781565 847606