Reconstructing marriage: An intersexional approach

Denver University Law Review

Volumn 75, Issue 4, 1998, Pages 1215-1254

  Ertman, Martha M ^a,b,c  

^a UNIVERSITY OF DENVER   (United States)

^b WELLESLEY COLLEGE   (United States)

^c NORTHWESTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11544307652     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (244)

1. BENJAMIN CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Another commentator on the reinvigoration of alimony used this quotation as an epigram in her comment on Joan Williams' proposal to redefine family wealth entitlements. See Emily Field Van Tassel, Rebinding the Sticks: A Comment on Is Coverture Dead?, 82 GEO. L.J. 2291 (1994) (commenting on Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227 (1994)).
2. BENJAMIN CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Another commentator on the reinvigoration of alimony used this quotation as an epigram in her comment on Joan Williams' proposal to redefine family wealth entitlements. See Emily Field Van Tassel, Rebinding the Sticks: A Comment on Is Coverture Dead?, 82 GEO. L.J. 2291 (1994) (commenting on Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227 (1994)).
3. BENJAMIN CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Another commentator on the reinvigoration of alimony used this quotation as an epigram in her comment on Joan Williams' proposal to redefine family wealth entitlements. See Emily Field Van Tassel, Rebinding the Sticks: A Comment on Is Coverture Dead?, 82 GEO. L.J. 2291 (1994) (commenting on Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227 (1994)).
4. The danger of queer theorists applying constructionist analysis only to discuss gay and lesbian issues is that doing so deconstructs homosexuality, leaving heterosexuality in its naturalized, superior position. Dorothy Allison and Esther Newton foresaw this danger and produced buttons demanding that queer theorists "Deconstruct Heterosexuality First." Lisa Duggan, Queering the State, in SEX WARS: SEXUAL DISSENT AND POLITICAL CULTURE 179, 185 (Lisa Duggan & Nan D. Hunter eds., 1995) [hereinafter SEX WARS].
5. The danger of queer theorists applying constructionist analysis only to discuss gay and lesbian issues is that doing so deconstructs homosexuality, leaving heterosexuality in its naturalized, superior position. Dorothy Allison and Esther Newton foresaw this danger and produced buttons demanding that queer theorists "Deconstruct Heterosexuality First." Lisa Duggan, Queering the State, in SEX WARS: SEXUAL DISSENT AND POLITICAL CULTURE 179, 185 (Lisa Duggan & Nan D. Hunter eds., 1995) [hereinafter SEX WARS].
6. Other commentators have suggested partnership models as appropriate vehicles to justify post-divorce income sharing. See, e.g., Jana B. Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L.J. 2423, 2454-60 (1994); Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault, 60 U. CHI. L. REV. 67, 71 (1993). A recent article analyzes premarital agreements by exploring how U.C.C. Article 2, by analogy, might govern their terms and enforcement. See Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 WM. & MARY L. REV. 145, 188-89 (1998).
7. Other commentators have suggested partnership models as appropriate vehicles to justify post-divorce income sharing. See, e.g., Jana B. Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L.J. 2423, 2454-60 (1994); Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault, 60 U. CHI. L. REV. 67, 71 (1993). A recent article analyzes premarital agreements by exploring how U.C.C. Article 2, by analogy, might govern their terms and enforcement. See Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 WM. & MARY L. REV. 145, 188-89 (1998).
8. Other commentators have suggested partnership models as appropriate vehicles to justify post-divorce income sharing. See, e.g., Jana B. Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L.J. 2423, 2454-60 (1994); Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault, 60 U. CHI. L. REV. 67, 71 (1993). A recent article analyzes premarital agreements by exploring how U.C.C. Article 2, by analogy, might govern their terms and enforcement. See Brian Bix, Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 WM. & MARY L. REV. 145, 188-89 (1998).
9. For a fuller analysis describing how PSAs could commercialize marriage, see Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements, 77 TEX. L. REV. 17 (1998) [hereinafter Ertman, Commercializing Marriage].
10. For a fuller analysis describing how PSAs could commercialize marriage, see Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements, 77 TEX. L. REV. 17 (1998) [hereinafter Ertman, Commercializing Marriage].
11. This essay uses female pronouns to refer to primary homemakers and male pronouns to refer to ideal workers, since women and men are likely to play these respective roles in typical heterosexual marriages. The adjective "primary" reflects the wage labor of many people who also have primary responsibility for homemaking. In 1996, 70 percent of married mothers participated in the wage labor force. BUREAU OF THE CENSUS, U.S. DEFT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 404 tbl. 631 (117th ed. 1997). But many of these women tailor their work force participation to accommodate caregiving responsibilities. They might, for example, work part time, only part of the year, or near home. See VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 41, 60 (1988). Consequently, women on average earn less than men. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, MONEY INCOME IN THE UNITED STATES: 1996, at 26-27 tbl. 7 (1997). This gendered wage gap occurs in all racial groups, but is less pronounced between men and women of color than between white men and women. Id. Regardless of their employment status, women in heterosexual relationships do most of the housework. ARLIE RUSSELL HOCHSCHILD, THE SECOND SHIFT 8 (1989). These patterns suggest the accuracy, on average, of using female pronouns to describe primary homemakers and male pronouns to describe primary wage-earners. However, there is nothing in the proposed Premarital Security Agreements that requires that gender or sex determine which role a spouse plays, or even that there be a primary homemaker and an ideal worker. Ertman, Commercializing Marriage, supra note 4, at 75-76.
12. This essay uses female pronouns to refer to primary homemakers and male pronouns to refer to ideal workers, since women and men are likely to play these respective roles in typical heterosexual marriages. The adjective "primary" reflects the wage labor of many people who also have primary responsibility for homemaking. In 1996, 70 percent of married mothers participated in the wage labor force. BUREAU OF THE CENSUS, U.S. DEFT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 404 tbl. 631 (117th ed. 1997). But many of these women tailor their work force participation to accommodate caregiving responsibilities. They might, for example, work part time, only part of the year, or near home. See VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 41, 60 (1988). Consequently, women on average earn less than men. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, MONEY INCOME IN THE UNITED STATES: 1996, at 26-27 tbl. 7 (1997). This gendered wage gap occurs in all racial groups, but is less pronounced between men and women of color than between white men and women. Id. Regardless of their employment status, women in heterosexual relationships do most of the housework. ARLIE RUSSELL HOCHSCHILD, THE SECOND SHIFT 8 (1989). These patterns suggest the accuracy, on average, of using female pronouns to describe primary homemakers and male pronouns to describe primary wage-earners. However, there is nothing in the proposed Premarital Security Agreements that requires that gender or sex determine which role a spouse plays, or even that there be a primary homemaker and an ideal worker. Ertman, Commercializing Marriage, supra note 4, at 75-76.
13. This essay uses female pronouns to refer to primary homemakers and male pronouns to refer to ideal workers, since women and men are likely to play these respective roles in typical heterosexual marriages. The adjective "primary" reflects the wage labor of many people who also have primary responsibility for homemaking. In 1996, 70 percent of married mothers participated in the wage labor force. BUREAU OF THE CENSUS, U.S. DEFT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 404 tbl. 631 (117th ed. 1997). But many of these women tailor their work force participation to accommodate caregiving responsibilities. They might, for example, work part time, only part of the year, or near home. See VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 41, 60 (1988). Consequently, women on average earn less than men. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, MONEY INCOME IN THE UNITED STATES: 1996, at 26-27 tbl. 7 (1997). This gendered wage gap occurs in all racial groups, but is less pronounced between men and women of color than between white men and women. Id. Regardless of their employment status, women in heterosexual relationships do most of the housework. ARLIE RUSSELL HOCHSCHILD, THE SECOND SHIFT 8 (1989). These patterns suggest the accuracy, on average, of using female pronouns to describe primary homemakers and male pronouns to describe primary wage-earners. However, there is nothing in the proposed Premarital Security Agreements that requires that gender or sex determine which role a spouse plays, or even that there be a primary homemaker and an ideal worker. Ertman, Commercializing Marriage, supra note 4, at 75-76.
14. This essay uses female pronouns to refer to primary homemakers and male pronouns to refer to ideal workers, since women and men are likely to play these respective roles in typical heterosexual marriages. The adjective "primary" reflects the wage labor of many people who also have primary responsibility for homemaking. In 1996, 70 percent of married mothers participated in the wage labor force. BUREAU OF THE CENSUS, U.S. DEFT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 404 tbl. 631 (117th ed. 1997). But many of these women tailor their work force participation to accommodate caregiving responsibilities. They might, for example, work part time, only part of the year, or near home. See VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 41, 60 (1988). Consequently, women on average earn less than men. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, MONEY INCOME IN THE UNITED STATES: 1996, at 26-27 tbl. 7 (1997). This gendered wage gap occurs in all racial groups, but is less pronounced between men and women of color than between white men and women. Id. Regardless of their employment status, women in heterosexual relationships do most of the housework. ARLIE RUSSELL HOCHSCHILD, THE SECOND SHIFT 8 (1989). These patterns suggest the accuracy, on average, of using female pronouns to describe primary homemakers and male pronouns to describe primary wage-earners. However, there is nothing in the proposed Premarital Security Agreements that requires that gender or sex determine which role a spouse plays, or even that there be a primary homemaker and an ideal worker. Ertman, Commercializing Marriage, supra note 4, at 75-76.
15. This essay uses female pronouns to refer to primary homemakers and male pronouns to refer to ideal workers, since women and men are likely to play these respective roles in typical heterosexual marriages. The adjective "primary" reflects the wage labor of many people who also have primary responsibility for homemaking. In 1996, 70 percent of married mothers participated in the wage labor force. BUREAU OF THE CENSUS, U.S. DEFT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 404 tbl. 631 (117th ed. 1997). But many of these women tailor their work force participation to accommodate caregiving responsibilities. They might, for example, work part time, only part of the year, or near home. See VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 41, 60 (1988). Consequently, women on average earn less than men. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, MONEY INCOME IN THE UNITED STATES: 1996, at 26-27 tbl. 7 (1997). This gendered wage gap occurs in all racial groups, but is less pronounced between men and women of color than between white men and women. Id. Regardless of their employment status, women in heterosexual relationships do most of the housework. ARLIE RUSSELL HOCHSCHILD, THE SECOND SHIFT 8 (1989). These patterns suggest the accuracy, on average, of using female pronouns to describe primary homemakers and male pronouns to describe primary wage-earners. However, there is nothing in the proposed Premarital Security Agreements that requires that gender or sex determine which role a spouse plays, or even that there be a primary homemaker and an ideal worker. Ertman, Commercializing Marriage, supra note 4, at 75-76.
16. Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227, 2255-56 (1994) ("A wife who shoulders childrearing and other domestic responsibilities allows her husband ... to perform as an ideal worker.").
17. For further discussion of the amount of the marital debt secured by the premarital security interest, see Ertman, Commercializing Marriage, supra note 4, at 43-50.
18. See Ertman, Commercializing Marriage, supra note 4, at 63-97.
19. Id.
20. "Queer" is increasingly used as a verb to describe the application of queer theoretical insights to various contexts. See, e.g., CARL F. STYCHIN, LAW'S DESIRE: SEXUALITY AND THE LIMITS OF JUSTICE 150 (1995) (contending that the majority opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), "'queers' the statute so that the boundary between acts and identities is muddied"); Duggan, supra note 2, at 179 ("The time has come to think about queering the state."); Jonathan Goldberg, Introduction to QUEERING THE RENAISSANCE 1, 1 (Jonathan Goldberg ed., 1994) ("[T]he process of queering the Renaissance has been under way for some time."). While the definition of the term "queer" is deliberately left open to minimize essentialist dangers, when used as a verb it generally connotes applying the insights of queer theory to new contexts, such as law, activism, or history. To queer something is often to turn it on its head, show the contingency of its underpinnings, and perhaps reveal the subversive potential in something that seems to be the very cornerstone of traditional gender relations.
21. "Queer" is increasingly used as a verb to describe the application of queer theoretical insights to various contexts. See, e.g., CARL F. STYCHIN, LAW'S DESIRE: SEXUALITY AND THE LIMITS OF JUSTICE 150 (1995) (contending that the majority opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), "'queers' the statute so that the boundary between acts and identities is muddied"); Duggan, supra note 2, at 179 ("The time has come to think about queering the state."); Jonathan Goldberg, Introduction to QUEERING THE RENAISSANCE 1, 1 (Jonathan Goldberg ed., 1994) ("[T]he process of queering the Renaissance has been under way for some time."). While the definition of the term "queer" is deliberately left open to minimize essentialist dangers, when used as a verb it generally connotes applying the insights of queer theory to new contexts, such as law, activism, or history. To queer something is often to turn it on its head, show the contingency of its underpinnings, and perhaps reveal the subversive potential in something that seems to be the very cornerstone of traditional gender relations.
22. Some theorists might object to describing an analysis that accounts for dominant identities, such as heterosexuality, as intersectional (or interSEXional). For example, Peter Kwan states: [S]traight white maleness arguably is a multiple identity, but intersectionality theorists would resist the claim by straight white males that theirs is an intersectional subjectivity. Central to intersectionality theory is the recovery of the claims and identities of those who, like African-American women, are pushed to the margins of the racial discourse because of assumptions of patriarchal normativity, and simultaneously pushed to the margins of the feminist discourse because of assumptions of racial normativity. Peter Kwan, Jeffrey Dahmer and the Cosynthesis of Categories, 48 HASTINGS L.J. 1257, 1275 (1997). Given the importance of deconstructing unmarked as well as marked categories, and in particular deconstructing heterosexuality first or at least concurrently with deconstructing marginalized sexual identities, see supra note 2, this essay describes its methodology as intersectional (or interSEXional) despite its focus on some privileged categories.
23. InterSEXionality is a term coined by the University of Denver faculty reading group as we planned this conference. The term is intended to invoke multiple levels of intersectional analysis while focusing on sexual orientation. First, it explores ways in which legal regulations invoke race, class, gender, sex, sexuality, and other identity categories, focusing on sexual orientation as the hub of the analysis. Second, InterSEXionality engages interdisciplinary methods to understand how various identities interact under legal regulation. In particular, InterSEXionality applies insights of queer theory (which actively contests identity categories) to legal analysis (which is firmly grounded in identity categories). Third, and perhaps most ambitiously, InterSEXionality explores interrelationships among ostensibly separate identity categories such as sex, gender, sexuality, and sexual orientation.
24. See Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, in THE LESBIAN AND GAY STUDIES READER 227 (Henry Abelove et al. eds., 1993) [hereinafter Rich, Compulsory Heterosexuality].
25. See Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, in THE LESBIAN AND GAY STUDIES READER 227 (Henry Abelove et al. eds., 1993) [hereinafter Rich, Compulsory Heterosexuality].
26. See JUDITH BUTLER, GENDER TROUBLE 141 (1990) [hereinafter BUTLER, GENDER TROUBLE]; Judith Butler, Imitation and Gender Insubordination, in INSIDE OUT: LESBIAN THEORIES, GAY THEORIES 13, 19 (Diana Fuss ed., 1991) [hereinafter Butler, Imitation].
27. See JUDITH BUTLER, GENDER TROUBLE 141 (1990) [hereinafter BUTLER, GENDER TROUBLE]; Judith Butler, Imitation and Gender Insubordination, in INSIDE OUT: LESBIAN THEORIES, GAY THEORIES 13, 19 (Diana Fuss ed., 1991) [hereinafter Butler, Imitation].
28. See JUDITH BUTLER, GENDER TROUBLE 141 (1990) [hereinafter BUTLER, GENDER TROUBLE]; Judith Butler, Imitation and Gender Insubordination, in INSIDE OUT: LESBIAN THEORIES, GAY THEORIES 13, 19 (Diana Fuss ed., 1991) [hereinafter Butler, Imitation].
29. See JUDITH BUTLER, GENDER TROUBLE 141 (1990) [hereinafter BUTLER, GENDER TROUBLE]; Judith Butler, Imitation and Gender Insubordination, in INSIDE OUT: LESBIAN THEORIES, GAY THEORIES 13, 19 (Diana Fuss ed., 1991) [hereinafter Butler, Imitation].
30. See supra note 10.
31. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 6 (1995); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 129 (1995) [hereinafter Valdes, Queers, Sissies, Dykes and Tomboys]; see also Francisco Valdes, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 211 (1996) [hereinafter Valdes, Unpacking Hetero-Patriarchy].
32. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 6 (1995); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 129 (1995) [hereinafter Valdes, Queers, Sissies, Dykes and Tomboys]; see also Francisco Valdes, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 211 (1996) [hereinafter Valdes, Unpacking Hetero-Patriarchy].
33. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 6 (1995); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 129 (1995) [hereinafter Valdes, Queers, Sissies, Dykes and Tomboys]; see also Francisco Valdes, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 211 (1996) [hereinafter Valdes, Unpacking Hetero-Patriarchy].
34. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 6 (1995); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 129 (1995) [hereinafter Valdes, Queers, Sissies, Dykes and Tomboys]; see also Francisco Valdes, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 211 (1996) [hereinafter Valdes, Unpacking Hetero-Patriarchy].
35. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 6 (1995); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 129 (1995) [hereinafter Valdes, Queers, Sissies, Dykes and Tomboys]; see also Francisco Valdes, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 211 (1996) [hereinafter Valdes, Unpacking Hetero-Patriarchy].
36. See Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 6 (1995); Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 2 (1995); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 129 (1995) [hereinafter Valdes, Queers, Sissies, Dykes and Tomboys]; see also Francisco Valdes, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 211 (1996) [hereinafter Valdes, Unpacking Hetero-Patriarchy].
37. See William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1494-95 (1993).
38. This essay assumes that queer theorists care about race and class. This assumption, like any other assertion about queers or queer theory is made difficult by queer theory's deliberate refusal to define "queer." Some people define queer as not fitting in to the mainstream, and define the queer community as an "oxymoronic community" of men, women, transsexuals, gay males, lesbians, bisexuals, straight men and women, African Americans, Chicanos, Asian Americans, Native Americans, people who can see and/or walk and people who cannot, welfare recipients, trust fund recipients, wage earners, Democrats, Republicans, and anarchists - to name a few . . . . Indeed, since difference from the "norm" is about all that many people in the "gay community" have in common with each other, these sorts of "gay and lesbian" gatherings, at their best and worst and most radical, seem to be spaces where cross-sections of the human mulitverse can gather together to thrash out differences and perhaps to lay the groundwork for peaceful and productive futures. . . . In my most naively hopeful moments, I often imagine it will be the "queer community" - the oxymoronic community of difference - that might be able to teach the world how to get along. Lisa Duggan, Making it Perfectly Queer, in SEX WARS, supra note 2, at 155, 163 (quoting Louise Sloan, Beyond Dialogue, S.F. BAY GUARDIAN LITERARY SUPPLEMENT, Mar. 1991, at 3). Suzanna Danuta Walters offers the following critique of queer theory: [I]f all that we share is a nonnormative sexuality and a disenfranchisement, then why not be totally inclusive? This reduces queer politics to a banal (and potentially dangerous) politics of simple opposition, potentially affiliating groups, identities, and practices that are explicitly and implicitly in opposition to each other. To link politically and theoretically around a "difference" from normative heterosexuality imposes a (false) unity around disparate practices and communities. Suzanna Danuta Walters, From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, Why Can't a Woman Be More Like a Fag?), 21 SIGNS 830, 838-39 (1996).
39. This essay assumes that queer theorists care about race and class. This assumption, like any other assertion about queers or queer theory is made difficult by queer theory's deliberate refusal to define "queer." Some people define queer as not fitting in to the mainstream, and define the queer community as an "oxymoronic community" of men, women, transsexuals, gay males, lesbians, bisexuals, straight men and women, African Americans, Chicanos, Asian Americans, Native Americans, people who can see and/or walk and people who cannot, welfare recipients, trust fund recipients, wage earners, Democrats, Republicans, and anarchists - to name a few . . . . Indeed, since difference from the "norm" is about all that many people in the "gay community" have in common with each other, these sorts of "gay and lesbian" gatherings, at their best and worst and most radical, seem to be spaces where cross-sections of the human mulitverse can gather together to thrash out differences and perhaps to lay the groundwork for peaceful and productive futures. . . . In my most naively hopeful moments, I often imagine it will be the "queer community" - the oxymoronic community of difference - that might be able to teach the world how to get along. Lisa Duggan, Making it Perfectly Queer, in SEX WARS, supra note 2, at 155, 163 (quoting Louise Sloan, Beyond Dialogue, S.F. BAY GUARDIAN LITERARY SUPPLEMENT, Mar. 1991, at 3). Suzanna Danuta Walters offers the following critique of queer theory: [I]f all that we share is a nonnormative sexuality and a disenfranchisement, then why not be totally inclusive? This reduces queer politics to a banal (and potentially dangerous) politics of simple opposition, potentially affiliating groups, identities, and practices that are explicitly and implicitly in opposition to each other. To link politically and theoretically around a "difference" from normative heterosexuality imposes a (false) unity around disparate practices and communities. Suzanna Danuta Walters, From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, Why Can't a Woman Be More Like a Fag?), 21 SIGNS 830, 838-39 (1996).
40. This essay assumes that queer theorists care about race and class. This assumption, like any other assertion about queers or queer theory is made difficult by queer theory's deliberate refusal to define "queer." Some people define queer as not fitting in to the mainstream, and define the queer community as an "oxymoronic community" of men, women, transsexuals, gay males, lesbians, bisexuals, straight men and women, African Americans, Chicanos, Asian Americans, Native Americans, people who can see and/or walk and people who cannot, welfare recipients, trust fund recipients, wage earners, Democrats, Republicans, and anarchists - to name a few . . . . Indeed, since difference from the "norm" is about all that many people in the "gay community" have in common with each other, these sorts of "gay and lesbian" gatherings, at their best and worst and most radical, seem to be spaces where cross-sections of the human mulitverse can gather together to thrash out differences and perhaps to lay the groundwork for peaceful and productive futures. . . . In my most naively hopeful moments, I often imagine it will be the "queer community" - the oxymoronic community of difference - that might be able to teach the world how to get along. Lisa Duggan, Making it Perfectly Queer, in SEX WARS, supra note 2, at 155, 163 (quoting Louise Sloan, Beyond Dialogue, S.F. BAY GUARDIAN LITERARY SUPPLEMENT, Mar. 1991, at 3). Suzanna Danuta Walters offers the following critique of queer theory: [I]f all that we share is a nonnormative sexuality and a disenfranchisement, then why not be totally inclusive? This reduces queer politics to a banal (and potentially dangerous) politics of simple opposition, potentially affiliating groups, identities, and practices that are explicitly and implicitly in opposition to each other. To link politically and theoretically around a "difference" from normative heterosexuality imposes a (false) unity around disparate practices and communities. Suzanna Danuta Walters, From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, Why Can't a Woman Be More Like a Fag?), 21 SIGNS 830, 838-39 (1996).
41. See U.C.C. § 9-102 (1995) ("[T]his Article applies . . . to any transaction . . . which is intended to create a security interest in personal property.").
42. See U.C.C. § 9-203 (1995) (describing how security interests arise under Article 9 by either possession of collateral or a signed writing describing the collateral); U.C.C. § 9-310 (1995) (recognizing statutory liens).
43. U.C.C. § 9-503 (1995) (allowing a secured creditor to take possession of collateral without judicial process if repossession can be accomplished without breach of the peace).
44. See, e.g., Jean Braucher, The Repo Code: A Study of Adjustment to Uncertainty in Commercial Law, 75 WASH. U. L.Q. 549, 550-51 (1997) (suggesting that Article 9 be amended to define specific actions which constitute breach of the peace).
45. See Ertman, Commercializing Marriage, supra note 4.
46. Williams, supra note 6, at 2229. The paradigmatic marriage in which women are financially dependent on men may be most prevalent among white middle and upper middle class marriages. See Twila L. Perry, Alimony: Race, Privilege and Dependency in the Search for Theory, 82 GEO. L.J. 2481, 2486-89 (1994). In African American marriages, in contrast, there is less of a wage gap between men and women, and women are likely to contribute 40 percent of household income, compared to the 29 percent contributed on average by white wives. Dorothy A. Brown, The Marriage Bonus/Penalty in Black and White, 65 U. CIN. L. REV. 787, 793, 795-96 (1997).
47. Williams, supra note 6, at 2229. The paradigmatic marriage in which women are financially dependent on men may be most prevalent among white middle and upper middle class marriages. See Twila L. Perry, Alimony: Race, Privilege and Dependency in the Search for Theory, 82 GEO. L.J. 2481, 2486-89 (1994). In African American marriages, in contrast, there is less of a wage gap between men and women, and women are likely to contribute 40 percent of household income, compared to the 29 percent contributed on average by white wives. Dorothy A. Brown, The Marriage Bonus/Penalty in Black and White, 65 U. CIN. L. REV. 787, 793, 795-96 (1997).
48. Mothers are much more likely to be awarded custody of children of the marriage upon divorce. Williams, supra note 6, at 2227 n.144 (stating that "fathers gain sole physical custody in less than 10% of divorces" (citing ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY 112 (1992))).
49. Williams, supra note 6, at 2229.
50. See C.C. Fischer, The Valuation of Household Production: Divorce, Wrongful Injury and Death Litigation, 53 AM. J. ECON. & SOC. 187 (1994) (examining valuation of overall "household production" by applying methods of forensic economics).
51. See, e.g., Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 54-55 (1989).
52. See, e.g., Singer, supra note 3, at 2444-47.
53. Joy A. Schneer & Freida Reitman, Effects of Alternative Family Structures on Managerial Career Paths, 36 ACAD. MGMT. J. 830, 831 (1993) (finding that male MBA degree holders with homemaker spouses and children made 20 percent more than men whose spouses worked for wages); Linda K. Stroh & Jeanne M. Brett, The Dual-Earner Dad Penalty in Salary Progression, 35 HUM. RESOURCE MGMT. 181, 195 (1996) (study showing that managers whose wives did not work enjoyed 11 percent more in salary increases over five years than managers whose wives worked for wages); see also Tamar Lewin, Men Whose Wives Work Earn Less, Studies Show, N.Y. TIMES, Oct. 12, 1994, at A1.
54. Joy A. Schneer & Freida Reitman, Effects of Alternative Family Structures on Managerial Career Paths, 36 ACAD. MGMT. J. 830, 831 (1993) (finding that male MBA degree holders with homemaker spouses and children made 20 percent more than men whose spouses worked for wages); Linda K. Stroh & Jeanne M. Brett, The Dual-Earner Dad Penalty in Salary Progression, 35 HUM. RESOURCE MGMT. 181, 195 (1996) (study showing that managers whose wives did not work enjoyed 11 percent more in salary increases over five years than managers whose wives worked for wages); see also Tamar Lewin, Men Whose Wives Work Earn Less, Studies Show, N.Y. TIMES, Oct. 12, 1994, at A1.
55. Joy A. Schneer & Freida Reitman, Effects of Alternative Family Structures on Managerial Career Paths, 36 ACAD. MGMT. J. 830, 831 (1993) (finding that male MBA degree holders with homemaker spouses and children made 20 percent more than men whose spouses worked for wages); Linda K. Stroh & Jeanne M. Brett, The Dual-Earner Dad Penalty in Salary Progression, 35 HUM. RESOURCE MGMT. 181, 195 (1996) (study showing that managers whose wives did not work enjoyed 11 percent more in salary increases over five years than managers whose wives worked for wages); see also Tamar Lewin, Men Whose Wives Work Earn Less, Studies Show, N.Y. TIMES, Oct. 12, 1994, at A1.
56. Remunerating primary homemakers for their contributions to family wealth through homemaking services and lost opportunity costs makes particular sense in light of the second shift that most women work in order to make up for their male partner's more modest involvement with household management. HOCHSCHILD, supra note 5, at 8.
57. For further discussion of the formula, see Ertman, Commercializing Marriage, supra note 4, at 43-50.
58. Alimony is awarded in a minority of divorces. Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1106 (1989) (describing United States Census Bureau data indicating that 9.3 percent of women were awarded permanent alimony between 1887 and 1906, 15.4 percent in 1916, 14.6 percent in 1922, compared to Lenore Weitzman's data indicating that in 1968 less than 19 percent of divorcees were awarded alimony and, in 1977, only 16.5 percent of divorces included alimony awards).
59. It is important to note that the debt and the collateral are separate. Fifty percent of marital property is collateral securing the loan. Because the most important asset in most divorces is the post-divorce stream of income, my proposal designates part of post-divorce income as marital property. The debt, or actual loan, is considerably smaller. Ertman, Commercializing Marriage, supra note 4, at 52-53. Commercial creditors typically oversecure a loan with collateral worth more than the loan amount to ensure full repayment of the debt.
60. Tangible marital property could be repossessed and sold pursuant to U.C.C. §§ 9-503 and 504 (1995). Intangible property, such as stream of income, could be accessed through garnishment proceedings. Garnishment is already used to satisfy child support and maintenance obligations. See, e.g., COLO. REV. STAT. § 14-14-111.5 (1997) (authorizing income assignment to collect child support and maintenance).
61. U.C.C. § 9-203 (1995).
62. See, e.g., COLO. REV. STAT. §§ 38-20-106 to -116 (1997); see also COLO. REV. STAT. § 42-9-104(II) (1997) (establishing liens on property such as motor vehicles upon which repair work has been done but not paid for).
63. Ertman, Commercializing Marriage, supra note 4, at 55-57.
64. Queer theorists also might prefer consensual security agreements because they do not turn on the status of the parties in the same way that repair and mechanics' liens do. See U.C.C. § 9-102 cmt. 2 (1995). On the other hand, statutory liens become common knowledge after sustained use in the community, so that PSAs could affect the gendered nature of marriage even if they arose as a matter of law. Some queer theorists might, moreover, contest the distinction between the two ways of creating a security interest, arguing that the consensual nature of an executed security agreement is largely illusory given the state monopoly on recognizing marriage and allocating benefits based on it, paired with the forces of compulsory heterosexuality that push many people into marriage.
65. Lenore Weitzman's famous data suggested that, upon divorce, women's standard of living decreases 73 percent while men's standard of living increases 42 percent. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 338-39 (1985). Subsequent studies indicate that divorced women suffer a financial penalty (albeit less of one than that claimed by Weitzman). See, e.g., Richard R. Peterson, A Re-evaluation of the Economic Consequences of Divorce, 61 AM. SOC. REV. 528, 530-33 (1996) (replicating Weitzman's research on the same data and finding a 27 percent decrease in women's standard of living and a 10 percent improvement for men); Lenore J. Weitzman, The Econmic Consequences of Divorce Are Still Unequal: Comment on Peterson, 61 AM. SOC. REV. 537, 537-38 (1996) (contending that original data no longer exist but conceding a sample weighting error); see also Saul D. Hoffman & Greg J. Duncan, What Are the Economic Consequences of Divorce?, 25 DEMOGRAPHY 641 (1988) (finding that women suffer an approximately 30 percent drop in their standard of living in the first year after divorce).
66. Lenore Weitzman's famous data suggested that, upon divorce, women's standard of living decreases 73 percent while men's standard of living increases 42 percent. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 338-39 (1985). Subsequent studies indicate that divorced women suffer a financial penalty (albeit less of one than that claimed by Weitzman). See, e.g., Richard R. Peterson, A Re-evaluation of the Economic Consequences of Divorce, 61 AM. SOC. REV. 528, 530-33 (1996) (replicating Weitzman's research on the same data and finding a 27 percent decrease in women's standard of living and a 10 percent improvement for men); Lenore J. Weitzman, The Econmic Consequences of Divorce Are Still Unequal: Comment on Peterson, 61 AM. SOC. REV. 537, 537-38 (1996) (contending that original data no longer exist but conceding a sample weighting error); see also Saul D. Hoffman & Greg J. Duncan, What Are the Economic Consequences of Divorce?, 25 DEMOGRAPHY 641 (1988) (finding that women suffer an approximately 30 percent drop in their standard of living in the first year after divorce).
67. Lenore Weitzman's famous data suggested that, upon divorce, women's standard of living decreases 73 percent while men's standard of living increases 42 percent. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 338-39 (1985). Subsequent studies indicate that divorced women suffer a financial penalty (albeit less of one than that claimed by Weitzman). See, e.g., Richard R. Peterson, A Re-evaluation of the Economic Consequences of Divorce, 61 AM. SOC. REV. 528, 530-33 (1996) (replicating Weitzman's research on the same data and finding a 27 percent decrease in women's standard of living and a 10 percent improvement for men); Lenore J. Weitzman, The Econmic Consequences of Divorce Are Still Unequal: Comment on Peterson, 61 AM. SOC. REV. 537, 537-38 (1996) (contending that original data no longer exist but conceding a sample weighting error); see also Saul D. Hoffman & Greg J. Duncan, What Are the Economic Consequences of Divorce?, 25 DEMOGRAPHY 641 (1988) (finding that women suffer an approximately 30 percent drop in their standard of living in the first year after divorce).
68. Lenore Weitzman's famous data suggested that, upon divorce, women's standard of living decreases 73 percent while men's standard of living increases 42 percent. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA 338-39 (1985). Subsequent studies indicate that divorced women suffer a financial penalty (albeit less of one than that claimed by Weitzman). See, e.g., Richard R. Peterson, A Re-evaluation of the Economic Consequences of Divorce, 61 AM. SOC. REV. 528, 530-33 (1996) (replicating Weitzman's research on the same data and finding a 27 percent decrease in women's standard of living and a 10 percent improvement for men); Lenore J. Weitzman, The Econmic Consequences of Divorce Are Still Unequal: Comment on Peterson, 61 AM. SOC. REV. 537, 537-38 (1996) (contending that original data no longer exist but conceding a sample weighting error); see also Saul D. Hoffman & Greg J. Duncan, What Are the Economic Consequences of Divorce?, 25 DEMOGRAPHY 641 (1988) (finding that women suffer an approximately 30 percent drop in their standard of living in the first year after divorce).
69. Starnes, supra note 3, at 79-80 (citing the Displaced Homemakers Network 1990 Status Report which states that 61 percent of African American and 62.3 percent of Hispanic displaced homemakers are poor, compared to 27.8 percent of white displaced homemakers).
70. Section 308 of the Uniform Marriage and Divorce Act (U.M.D.A.) provides that a court should order maintenance only if . . . the spouse seeking maintenance: (1) lacks sufficient property to provide for his reasonable needs; and (2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. UNIF. MARRIAGE & DIVORCE ACT § 308(a) (amended 1973), 9A(I) U.L.A. 446 (1998). U.M.D.A. § 308 further directs courts to take into account six factors in determining the amount and duration of maintenance, including: (1) the financial resources of the party seeking maintenance . . . ; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and physical and emotional condition of the spouse seeking maintenance; and (6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Id. § 308(b). Although the U.M.D.A. uses the term "maintenance" to describe post-divorce payments from one spouse to another, this essay generally uses the term "alimony," as do most of the participants in the theoretical debate about post-divorce income-sharing. While practice distinguishes sharply between alimony and property division, experts have faltered when pressed to distinguish clearly between the two. See HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 592-93 (2d ed. 1987). Accordingly, while this essay focuses on alimony, the PSA could as easily be classified as a division of property.
71. See, e.g., Allen M. Parkman, Reform of the Divorce Provisions of the Marriage Contract, 8 BYU J. PUB. L. 91, 93 (1993).
72. See Williams, supra note 6, at 2258.
73. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 230-31 (1995).
74. See, e.g., Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855, 885 (1988) (stating that no-fault "alimony, like contract damages, emphasizes restitution," and that the law analogizes marriage to a business partnership); Lloyd Cohen, Marriage, Divorce and Quasi-Rents; or, "I Gave Him the Best Years of My Life," 16 J. LEG. STUD. 267 (1987) (comparing the marriage contract to a commercial contract); Ellman, supra note 28, at 9-10 (criticizing the application of contract and partnership concepts to alimony and proposing a lost opportunity cost model); Joan M. Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 FAM. L.Q. 252, 255-71 (1989) (exploring various theories upon which to fashion practical distinctions between property division entitlements and spousal support obligations); Singer, supra note 33, at 1114 (suggesting an investment partnership model of marriage); Starnes, supra note 3, at 108-09 (proposing a business partnership model for valuing homemaking).
75. See, e.g., Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855, 885 (1988) (stating that no-fault "alimony, like contract damages, emphasizes restitution," and that the law analogizes marriage to a business partnership); Lloyd Cohen, Marriage, Divorce and Quasi-Rents; or, "I Gave Him the Best Years of My Life," 16 J. LEG. STUD. 267 (1987) (comparing the marriage contract to a commercial contract); Ellman, supra note 28, at 9-10 (criticizing the application of contract and partnership concepts to alimony and proposing a lost opportunity cost model); Joan M. Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 FAM. L.Q. 252, 255-71 (1989) (exploring various theories upon which to fashion practical distinctions between property division entitlements and spousal support obligations); Singer, supra note 33, at 1114 (suggesting an investment partnership model of marriage); Starnes, supra note 3, at 108-09 (proposing a business partnership model for valuing homemaking).
76. See, e.g., Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV. 855, 885 (1988) (stating that no-fault "alimony, like contract damages, emphasizes restitution," and that the law analogizes marriage to a business partnership); Lloyd Cohen, Marriage, Divorce and Quasi-Rents; or, "I Gave Him the Best Years of My Life," 16 J. LEG. STUD. 267 (1987) (comparing the marriage contract to a commercial contract); Ellman, supra note 28, at 9-10 (criticizing the application of contract and partnership concepts to alimony and proposing a lost opportunity cost model); Joan M. Krauskopf, Theories of Property Division/Spousal Support: Searching for Solutions to the Mystery, 23 FAM. L.Q. 252, 255-71 (1989) (exploring various theories upon which to fashion practical distinctions between property division entitlements and spousal support obligations); Singer, supra note 33, at 1114 (suggesting an investment partnership model of marriage); Starnes, supra note 3, at 108-09 (proposing a business partnership model for valuing homemaking).
77. Ertman, Commercializing Marriage, supra note 4, at 63-97.
78. These labels are inevitably reductionist and do not (nor are they intended to) reflect the full range of feminist or legal economic thought They do, however, give a sense of the ideological variation in approaches to divorce reform. For further discussion of these ideological approaches, see id. at 66, 74-75, 76-79, 88-92.
79. Legal economic approaches include Kristian Bolin, The Marriage Contract and Efficient Rules for Spousal Support, 14 INT'L REV. L. & ECON. 493, 501 (1994); Brinig & Carbone, supra note 46, at 901-02; June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 414-15 (1994); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 958-61 (1991); Cohen, supra note 46, at 303; Ellman, supra note 28, at 11; Joan M. Krauskopf, Recompense for Financing Spouses' Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 416 (1980); Elisabeth M. Landes, Economics of Alimony, 7 J. LEG. STUD. 35, 62 (1978); Parkman, supra note 43, at 93; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 94 (1990).
80. Legal economic approaches include Kristian Bolin, The Marriage Contract and Efficient Rules for Spousal Support, 14 INT'L REV. L. & ECON. 493, 501 (1994); Brinig & Carbone, supra note 46, at 901-02; June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 414-15 (1994); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 958-61 (1991); Cohen, supra note 46, at 303; Ellman, supra note 28, at 11; Joan M. Krauskopf, Recompense for Financing Spouses' Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 416 (1980); Elisabeth M. Landes, Economics of Alimony, 7 J. LEG. STUD. 35, 62 (1978); Parkman, supra note 43, at 93; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 94 (1990).
81. Legal economic approaches include Kristian Bolin, The Marriage Contract and Efficient Rules for Spousal Support, 14 INT'L REV. L. & ECON. 493, 501 (1994); Brinig & Carbone, supra note 46, at 901-02; June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 414-15 (1994); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 958-61 (1991); Cohen, supra note 46, at 303; Ellman, supra note 28, at 11; Joan M. Krauskopf, Recompense for Financing Spouses' Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 416 (1980); Elisabeth M. Landes, Economics of Alimony, 7 J. LEG. STUD. 35, 62 (1978); Parkman, supra note 43, at 93; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 94 (1990).
82. Legal economic approaches include Kristian Bolin, The Marriage Contract and Efficient Rules for Spousal Support, 14 INT'L REV. L. & ECON. 493, 501 (1994); Brinig & Carbone, supra note 46, at 901-02; June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 414-15 (1994); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 958-61 (1991); Cohen, supra note 46, at 303; Ellman, supra note 28, at 11; Joan M. Krauskopf, Recompense for Financing Spouses' Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 416 (1980); Elisabeth M. Landes, Economics of Alimony, 7 J. LEG. STUD. 35, 62 (1978); Parkman, supra note 43, at 93; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 94 (1990).
83. Legal economic approaches include Kristian Bolin, The Marriage Contract and Efficient Rules for Spousal Support, 14 INT'L REV. L. & ECON. 493, 501 (1994); Brinig & Carbone, supra note 46, at 901-02; June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 414-15 (1994); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 958-61 (1991); Cohen, supra note 46, at 303; Ellman, supra note 28, at 11; Joan M. Krauskopf, Recompense for Financing Spouses' Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 416 (1980); Elisabeth M. Landes, Economics of Alimony, 7 J. LEG. STUD. 35, 62 (1978); Parkman, supra note 43, at 93; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 94 (1990).
84. Legal economic approaches include Kristian Bolin, The Marriage Contract and Efficient Rules for Spousal Support, 14 INT'L REV. L. & ECON. 493, 501 (1994); Brinig & Carbone, supra note 46, at 901-02; June Carbone, Income Sharing: Redefining the Family in Terms of Community, 31 HOUS. L. REV. 359, 414-15 (1994); June Carbone & Margaret F. Brinig, Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform, 65 TUL. L. REV. 953, 958-61 (1991); Cohen, supra note 46, at 303; Ellman, supra note 28, at 11; Joan M. Krauskopf, Recompense for Financing Spouses' Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 416 (1980); Elisabeth M. Landes, Economics of Alimony, 7 J. LEG. STUD. 35, 62 (1978); Parkman, supra note 43, at 93; Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 94 (1990).
85. Feminist approaches can be described in different ways. See, e.g., MARY BECKER ET AL., CASES AND MATERIALS ON FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY 67-118 (1994) (excerpting six feminist approaches, including the dominance critique of formal equality, a defense of formal equality, hedonic feminism, pragmatism, socialist feminism, and postmodern feminism). This essay and Commercializing Marriage, supra note 4, define liberal feminism as an approach which supports legal rules that treat men and women similarly in most situations, cultural feminism as an approach that seeks to value the work that most women do in the home (and workplace), and radical feminism as an approach that seeks to deconstruct the dualities of sex, gender, and sexual orientation that inform the discourse of gender and sex equality. Ertman, Commercializing Marriage, supra note 4, at 27-28. Cultural feminist approaches include ideas suggested in FINEMAN, supra note 45, at 232; Ann Lacquer Estin, Can Families Be Efficient?, 4 MICH. J. GENDER & L. 1-2 (1996); Ann Lacquer Estin, Economics and the Problem of Divorce, 2 U. CHI. L. SCH. ROUNDTABLE 517, 519-20 (1995); Ann Lacquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1086 (1995); Ann Lacquer Estin, Maintenance, Alimony and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 803 (1993); Singer, supra note 3, at 2423; Singer, supra note 33, at 1121; Starnes, supra note 3, at 71-72; Williams, supra note 6, at 2227.
86. Feminist approaches can be described in different ways. See, e.g., MARY BECKER ET AL., CASES AND MATERIALS ON FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY 67-118 (1994) (excerpting six feminist approaches, including the dominance critique of formal equality, a defense of formal equality, hedonic feminism, pragmatism, socialist feminism, and postmodern feminism). This essay and Commercializing Marriage, supra note 4, define liberal feminism as an approach which supports legal rules that treat men and women similarly in most situations, cultural feminism as an approach that seeks to value the work that most women do in the home (and workplace), and radical feminism as an approach that seeks to deconstruct the dualities of sex, gender, and sexual orientation
87. Feminist approaches can be described in different ways. See, e.g., MARY BECKER ET AL., CASES AND MATERIALS ON FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY 67-118 (1994) (excerpting six feminist approaches, including the dominance critique of formal equality, a defense of formal equality, hedonic feminism, pragmatism, socialist feminism, and postmodern feminism). This essay and Commercializing Marriage, supra note 4, define liberal feminism as an approach which supports legal rules that treat men and women similarly in most situations, cultural feminism as an approach that seeks to value the work that most women do in the home (and workplace), and radical feminism as an approach that seeks to deconstruct the dualities of sex, gender, and sexual orientation that inform the discourse of gender and sex equality. Ertman, Commercializing Marriage, supra note 4, at 27-28. Cultural feminist approaches include ideas suggested in FINEMAN, supra note 45, at 232; Ann Lacquer Estin, Can Families Be Efficient?, 4 MICH. J. GENDER & L. 1-2 (1996); Ann Lacquer Estin, Economics and the Problem of Divorce, 2 U. CHI. L. SCH. ROUNDTABLE 517, 519-20 (1995); Ann Lacquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1086 (1995); Ann Lacquer Estin, Maintenance, Alimony and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 803 (1993); Singer, supra note 3, at 2423; Singer, supra note 33, at 1121; Starnes, supra note 3, at 71-72; Williams, supra note 6, at 2227.
88. Feminist approaches can be described in different ways. See, e.g., MARY BECKER ET AL., CASES AND MATERIALS ON FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY 67-118 (1994) (excerpting six feminist approaches, including the dominance critique of formal equality, a defense of formal equality, hedonic feminism, pragmatism, socialist feminism, and postmodern feminism). This essay and Commercializing Marriage, supra note 4, define liberal feminism as an approach which supports legal rules that treat men and women similarly in most situations, cultural feminism as an approach that seeks to value the work that most women do in the home (and workplace), and radical feminism as an approach that seeks to deconstruct the dualities of sex, gender, and sexual orientation that inform the discourse of gender and sex equality. Ertman, Commercializing Marriage, supra note 4, at 27-28. Cultural feminist approaches include ideas suggested in FINEMAN, supra note 45, at 232; Ann Lacquer Estin, Can Families Be Efficient?, 4 MICH. J. GENDER & L. 1-2 (1996); Ann Lacquer Estin, Economics and the Problem of Divorce, 2 U. CHI. L. SCH. ROUNDTABLE 517, 519-20 (1995); Ann Lacquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1086 (1995); Ann Lacquer Estin, Maintenance, Alimony and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 803 (1993); Singer, supra note 3, at 2423; Singer, supra note 33, at 1121; Starnes, supra note 3, at 71-72; Williams, supra note 6, at 2227.
89. Feminist approaches can be described in different ways. See, e.g., MARY BECKER ET AL., CASES AND MATERIALS ON FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY 67-118 (1994) (excerpting six feminist approaches, including the dominance critique of formal equality, a defense of formal equality, hedonic feminism, pragmatism, socialist feminism, and postmodern feminism). This essay and Commercializing Marriage, supra note 4, define liberal feminism as an approach which supports legal rules that treat men and women similarly in most situations, cultural feminism as an approach that seeks to value the work that most women do in the home (and workplace), and radical feminism as an approach that seeks to deconstruct the dualities of sex, gender, and sexual orientation that inform the discourse of gender and sex equality. Ertman, Commercializing Marriage, supra note 4, at 27-28. Cultural feminist approaches include ideas suggested in FINEMAN, supra note 45, at 232; Ann Lacquer Estin, Can Families Be Efficient?, 4 MICH. J. GENDER & L. 1-2 (1996); Ann Lacquer Estin, Economics and the Problem of Divorce, 2 U. CHI. L. SCH. ROUNDTABLE 517, 519-20 (1995); Ann Lacquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1086 (1995); Ann Lacquer Estin, Maintenance, Alimony and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 803 (1993); Singer, supra note 3, at 2423; Singer, supra note 33, at 1121; Starnes, supra note 3, at 71-72; Williams, supra note 6, at 2227.
90. Feminist approaches can be described in different ways. See, e.g., MARY BECKER ET AL., CASES AND MATERIALS ON FEMINIST JURISPRUDENCE: TAKING WOMEN SERIOUSLY 67-118 (1994) (excerpting six feminist approaches, including the dominance critique of formal equality, a defense of formal equality, hedonic feminism, pragmatism, socialist feminism, and postmodern feminism). This essay and Commercializing Marriage, supra note 4, define liberal feminism as an approach which supports legal rules that treat men and women similarly in most situations, cultural feminism as an approach that seeks to value the work that most women do in the home (and workplace), and radical feminism as an approach that seeks to deconstruct the dualities of sex, gender, and sexual orientation that inform the discourse of gender and sex equality. Ertman, Commercializing Marriage, supra note 4, at 27-28. Cultural feminist approaches include ideas suggested in FINEMAN, supra note 45, at 232; Ann Lacquer Estin, Can Families Be Efficient?, 4 MICH. J. GENDER & L. 1-2 (1996); Ann Lacquer Estin, Economics and the Problem of Divorce, 2 U. CHI. L. SCH. ROUNDTABLE 517, 519-20 (1995); Ann Lacquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1086 (1995); Ann Lacquer Estin, Maintenance, Alimony and the Rehabilitation of Family Care, 71 N.C. L. REV. 721, 803 (1993); Singer, supra note 3, at 2423; Singer, supra note 33, at 1121; Starnes, supra note 3, at 71-72; Williams, supra note 6, at 2227.
91. See, e.g., Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 319 (1987); Herma Hill Kay, Beyond No-Fault Divorce: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 36 (Stephen D. Sugarman & Herma Hill Kay eds., 1990); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 90 (1987); Krauskopf, supra note 46, at 277-78; Perry, supra note 24, at 2519; J. Thomas Oldham, Putting Asunder in the 1990s, 80 CAL. L. REV. 1091, 1102-03 (1990); Barbara Stark, Burning Down the House: Toward a Theory of More Equitable Distribution, 40 RUTGERS L. REV. 1173, 1207 (1988).
92. See, e.g., Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 319 (1987); Herma Hill Kay, Beyond No-Fault Divorce: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 36 (Stephen D. Sugarman & Herma Hill Kay eds., 1990); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 90 (1987); Krauskopf, supra note 46, at 277-78; Perry, supra note 24, at 2519; J. Thomas Oldham, Putting Asunder in the 1990s, 80 CAL. L. REV. 1091, 1102-03 (1990); Barbara Stark, Burning Down the House: Toward a Theory of More Equitable Distribution, 40 RUTGERS L. REV. 1173, 1207 (1988).
93. See, e.g., Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 319 (1987); Herma Hill Kay, Beyond No-Fault Divorce: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 36 (Stephen D. Sugarman & Herma Hill Kay eds., 1990); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 90 (1987); Krauskopf, supra note 46, at 277-78; Perry, supra note 24, at 2519; J. Thomas Oldham, Putting Asunder in the 1990s, 80 CAL. L. REV. 1091, 1102-03 (1990); Barbara Stark, Burning Down the House: Toward a Theory of More Equitable Distribution, 40 RUTGERS L. REV. 1173, 1207 (1988).
94. See, e.g., Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 319 (1987); Herma Hill Kay, Beyond No-Fault Divorce: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 36 (Stephen D. Sugarman & Herma Hill Kay eds., 1990); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 90 (1987); Krauskopf, supra note 46, at 277-78; Perry, supra note 24, at 2519; J. Thomas Oldham, Putting Asunder in the 1990s, 80 CAL. L. REV. 1091, 1102-03 (1990); Barbara Stark, Burning Down the House: Toward a Theory of More Equitable Distribution, 40 RUTGERS L. REV. 1173, 1207 (1988).
95. See, e.g., Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 CAL. L. REV. 291, 319 (1987); Herma Hill Kay, Beyond No-Fault Divorce: New Directions in Divorce Reform, in DIVORCE REFORM AT THE CROSSROADS 6, 36 (Stephen D. Sugarman & Herma Hill Kay eds., 1990); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 90 (1987); Krauskopf, supra note 46, at 277-78; Perry, supra note 24, at 2519; J. Thomas Oldham, Putting Asunder in the 1990s, 80 CAL. L. REV. 1091, 1102-03 (1990); Barbara Stark, Burning Down the House: Toward a Theory of More Equitable Distribution, 40 RUTGERS L. REV. 1173, 1207 (1988).
96. Radical feminist scholars have been largely silent in this discussion, with notable exceptions. See, e.g., Note, Patriarchy Is Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973 (1995) [hereinafter Patriarchy Is Such a Drag]. Some approaches combine cultural and radical feminist elements. See, e.g., MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY 47, 176 (1991);
97. Radical feminist scholars have been largely silent in this discussion, with notable exceptions. See, e.g., Note, Patriarchy Is Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973 (1995) [hereinafter Patriarchy Is Such a Drag]. Some approaches combine cultural and radical feminist elements. See, e.g., MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY 47, 176 (1991);
98. Radical feminist scholars have been largely silent in this discussion, with notable exceptions. See, e.g., Note, Patriarchy Is Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 HARV. L. REV. 1973 (1995) [hereinafter Patriarchy Is Such a Drag]. Some approaches combine cultural and radical feminist elements. See, e.g., MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY 47, 176 (1991);
99. JOAN WILLIAMS, UNBENDING GENDER: MARKET WORK AND FAMILY WORK IN THE 20TH CENTURY (forthcoming 1999); Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181, 2215 (1995); Williams, supra note 6, at 2229.
100. JOAN WILLIAMS, UNBENDING GENDER: MARKET WORK AND FAMILY WORK IN THE 20TH CENTURY (forthcoming 1999); Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181, 2215 (1995); Williams, supra note 6, at 2229.
101. Ertman, Commercializing Marriage, supra note 4, at 63-97, 110-11.
102. I use the term "gay people" rather than "queers" because most queer theory scholarship focuses on gay men and lesbians. See, e.g., Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431, 1462 (1992); Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 161.
103. I use the term "gay people" rather than "queers" because most queer theory scholarship focuses on gay men and lesbians. See, e.g., Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431, 1462 (1992); Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 161.
104. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
105. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
106. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
107. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
108. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
109. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
110. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
111. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
112. Two other fora also have addressed these issues. This topic was the subject of a program sponsored by the Sections on Gay and Lesbian Issues and Minority Groups titled Race, Ethnicity and Sexual Orientation: Crossing New Intersections in Law and Scholarship at the 1998 Annual Meeting of the Association of American Law Schools. The Hastings Law Journal also sponsored a symposium titled Intersexions: The Legal & Social Construction of Sexual Orientation, 48 HASTINGS L.J. 1101 (1997). Most relevant for purposes of the present symposium on InterSEXionality are the Hastings Law Journal symposium articles focusing on intersections of race, ethnicity, class, gender and sexual orientation. See Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 HASTINGS L.J. 1363 (1997); Ruth Colker, Sexual Orientation: Militarism, Moralism, and Capitalism, 48 HASTINGS L.J 1201 (1997); Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled "Other," 48 HASTINGS L.J. 1223 (1997); Kwan, supra note 11; Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293 (1997) [hereinafter Valdes, Queer Margins]. It is important to note that not all queer theorists contest all categories. See, e.g., DAN DANIELSEN & KAREN ENGLE, AFTER IDENTITY at xv (1995) ("Post-identity scholars articulate a set of strategies that acknowledge our simultaneous and ambivalent desire both to affirm our identities and to transcend them."); Patricia A. Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soc. POL'Y & L. 43, 56, 65 (1994) (suggesting that, unlike the category woman, the category lesbian is a coherent basis for lesbian legal theory because (1) "[t]he category lesbian is too young to be destabilized," and (2) lesbians share a "core experience" of experiencing and understanding "that transformative moment [of] realiz[ing] . . . personal erotic attraction to another woman").
113. The ground breaking piece on intersectional theory is Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991).
114. Jane Schacter has argued that the anti-gay "discourse of equivalents" compares different groups in order to decide who is entitled to civil rights protections, thus missing both commonalties and differences between different forms of subordination. See Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 HARV. C.R.-C.L. L. REV. 283, 314 (1994) ("While all struggles for social justice must be waged with these links in mind, being connected and being identical are not the same thing.").
115. Valdes proposes interconnectivity as a theoretical approach which he describes as an inter-group ethic in legal scholarship that values and promotes sex/gender inclusiveness in critical endeavors - projects that interrogate not only the way in which a construct like "gender" affects various groups, but that also interrogate the way in which sites of oppression are structured, deployed, and operated under the conflation in interconnected ways. Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 211; see also Valdes, Queer Margins, supra note 55, at 1341 ("[S]econd stage theorizing must go beyond a mere application of conventional intersectionality to race, ethnicity, and sexual orientation. . . . [A] simple extension . . . is unworkable because the doctrinal potency of intersectionality depends on the formal illegality of all biases under inspection.").
116. Valdes proposes interconnectivity as a theoretical approach which he describes as an inter-group ethic in legal scholarship that values and promotes sex/gender inclusiveness in critical endeavors - projects that interrogate not only the way in which a construct like "gender" affects various groups, but that also interrogate the way in which sites of oppression are structured, deployed, and operated under the conflation in interconnected ways. Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 211; see also Valdes, Queer Margins, supra note 55, at 1341 ("[S]econd stage theorizing must go beyond a mere application of conventional intersectionality to race, ethnicity, and sexual orientation. . . . [A] simple extension . . . is unworkable because the doctrinal potency of intersectionality depends on the formal illegality of all biases under inspection.").
117. See Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561, 640 (1997) (defining multidimensionality as "a discursive project aimed at unveiling the complexity of subordination and identity and reshaping legal theory to reflect and respond to this complexity"); see also Berta Esperanza Hernández-Truyol, Building Bridges: Bringing International Human Rights Home, 9 LA RAZA L.J. 69, 71 (1996) (pointing out that multidemensionality incorporates many categories and is not limited to race and ethnicity). Pragmatism might offer a way to understand differences and similarities between and among groups. Scott Brewer et al., Afterword: Symposium on the Renaissance of Pragmatism in American Legal Thought, 63 S. CAL. L. REV. 1911, 1928 (1990) (providing transcription of remarks by Jean C. Love, February 23-24, 1990, University of Southern California Law Center) ("Pragmatism has encouraged us to create a common language and in this way has helped us move toward a common understanding of the problem [of oppression based on sex, race, religion and sexual orientation].").
118. See Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561, 640 (1997) (defining multidimensionality as "a discursive project aimed at unveiling the complexity of subordination and identity and reshaping legal theory to reflect and respond to this complexity"); see also Berta Esperanza Hernández-Truyol, Building Bridges: Bringing International Human Rights Home, 9 LA RAZA L.J. 69, 71 (1996) (pointing out that multidemensionality incorporates many categories and is not limited to race and ethnicity). Pragmatism might offer a way to understand differences and similarities between and among groups. Scott Brewer et al., Afterword: Symposium on the Renaissance of Pragmatism in American Legal Thought, 63 S. CAL. L. REV. 1911, 1928 (1990) (providing transcription of remarks by Jean C. Love, February 23-24, 1990, University of Southern California Law Center) ("Pragmatism has encouraged us to create a common language and in this way has helped us move toward a common understanding of the problem [of oppression based on sex, race, religion and sexual orientation].").
119. See Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561, 640 (1997) (defining multidimensionality as "a discursive project aimed at unveiling the complexity of subordination and identity and reshaping legal theory to reflect and respond to this complexity"); see also Berta Esperanza Hernández-Truyol, Building Bridges: Bringing International Human Rights Home, 9 LA RAZA L.J. 69, 71 (1996) (pointing out that multidemensionality incorporates many categories and is not limited to race and ethnicity). Pragmatism might offer a way to understand differences and similarities between and among groups. Scott Brewer et al., Afterword: Symposium on the Renaissance of Pragmatism in American Legal Thought, 63 S. CAL. L. REV. 1911, 1928 (1990) (providing transcription of remarks by Jean C. Love, February 23-24, 1990, University of Southern California Law Center) ("Pragmatism has encouraged us to create a common language and in this way has helped us move toward a common understanding of the problem [of oppression based on sex, race, religion and sexual orientation].").
120. See Kwan, supra note 11, at 1281 ("By paying attention to the cosynthesis of categories, one opens up spaces for conceptualizing identities that do not prioritize one category over others.").
121. By explicitly identifying the compulsory nature of social systems that comprise heterosexuality, Adrienne Rich could be described as the grandmother of queer theory. But two considerations call this genealogy into question. First, Rich might object to lumping together lesbians and gay men, let alone all stigmatized sexual minorities. See Rich, Compulsory Heterosexuality, supra note 13, at 239 (distinguishing lesbian existence from male homosexuality). Rich, however, has softened her stance since writing Compulsory Heterosexuality, suggesting in a 1986 annotation to the essay that both lesbian identity and "the complex 'gay' identity we share with gay men" are relevant. Id. at 253 n.47. Second, Eve Kosofsky Sedgwick has been accorded the honor of being dubbed the mother of queer theory. See Duggan, supra note 2, at 182. Moreover, Rich's statements in Compulsory Heterosexuality likely rankle many a contemporary queer theorist as essentialist. See, e.g., Valdes, supra note 55, at 1329 ("Queer values, sensibilities and imperatives are . . . suspicious of all essentializing categorization."). Despite these potential difficulties, this essay persists in understanding Rich's contribution as an absolute prerequisite to the insights of queer theory. Designating Rich as the grandmother of queer theory emphasizes the generational specificity of much of queer theory (i.e., the relative youth of many of its proponents), and places some distance between her and contemporary queer theorists while still recognizing her unique contributions to queer theory's basic precepts.
122. Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 170 (discussing compulsory heterosexuality in terms of hetero-patriarchy).
123. But PSAs paradoxically could also support compulsory heterosexuality. This essay addresses each possibility in turn.
124. Rich, Compulsory Heterosexuality, supra note 13, at 245.
125. Id. at 238.
126. Id. at 242.
127. See Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197, 201 (1994).
128. See Nancy Chodorow, Family Structure and Feminine Personality, in WOMAN, CULTURE, AND SOCIETY 43, 66 (Michelle Zimbalist Rosaldo & Louise Lamphere eds., 1974).
129. See, e.g., Rich, Compulsory Heterosexuality, supra note 13, at 227.
130. Id. at 232.
131. A fourth consideration suggests that the current alimony doctrine is not always a tool of compulsory heterosexuality in that it provides that alimony be terminated or decreased if the recipient remarries or cohabits with a romantic partner. UNIF. MARRIAGE & DIVORCE ACT § 316(b), 9A(II) U.L.A. 102 (1998) ("Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the . . . remarriage of the party receiving maintenance."). Sections 5.08 and 5.10 of the Proposed Final Draft of the ALI DRAFT PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (1997) provide that post-divorce income sharing terminates when the recipient remarries or cohabits (whether the cohabitation is opposite-sex or same-sex). As discussed above, the general rule disfavoring alimony supports compulsory heterosexuality by penalizing primary homemakers for leaving the marriage. But the U.M.D.A. provision cutting off alimony upon remarriage discourages some heterosexual coupling. PSAs could similarly have complex interactions with compulsory heterosexuality. On one hand, the stream of payments under PSAs would continue even after the primary homemaker remarried, so that PSAs arguably might discourage less heterosexual coupling than the current regime. On the other hand, a divorcee could remarry without affecting her entitlement to a share of her former husband's income, making remarriage more a matter of choice (and thus less compulsory). Moreover, because PSAs increase homemakers' exit options in marriage, and few women are awarded or collect alimony under the current regime, the net effect of PSAs could be a decrease in the compulsory nature of heterosexuality.
132. See, e.g., DERRICK A. BELL, JR., RACE, RACISM AND AMERICAN LAW 53-69 (2d ed. 1980) (describing the rise and fall of miscegenation doctrine); Koppelman, supra note 67; Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997) (describing nineteenth-century doctrinal developments which preserved gender hierarchies in marriage by eliminating overt hierarchical arrangements but retaining gendered rules governing domestic labor and domestic violence); see also Lea Vandervelde & Sandhya Subramanian, Mrs. Dred Scott, 106 YALE L.J. 1033 (1997) (analyzing how the Dred Scott case might have come out differently had Harriet Robinson Scott been the focus of the case rather than her husband, and in doing so revealing profound racial and gender implications of nineteenth century marriage doctrine).
133. See, e.g., DERRICK A. BELL, JR., RACE, RACISM AND AMERICAN LAW 53-69 (2d ed. 1980) (describing the rise and fall of miscegenation doctrine); Koppelman, supra note 67; Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997) (describing nineteenth-century doctrinal developments which preserved gender hierarchies in marriage by eliminating overt hierarchical arrangements but retaining gendered rules governing domestic labor and domestic violence); see also Lea Vandervelde & Sandhya Subramanian, Mrs. Dred Scott, 106 YALE L.J. 1033 (1997) (analyzing how the Dred Scott case might have come out differently had Harriet Robinson Scott been the focus of the case rather than her husband, and in doing so revealing profound racial and gender implications of nineteenth century marriage doctrine).
134. See, e.g., DERRICK A. BELL, JR., RACE, RACISM AND AMERICAN LAW 53-69 (2d ed. 1980) (describing the rise and fall of miscegenation doctrine); Koppelman, supra note 67; Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997) (describing nineteenth-century doctrinal developments which preserved gender hierarchies in marriage by eliminating overt hierarchical arrangements but retaining gendered rules governing domestic labor and domestic violence); see also Lea Vandervelde & Sandhya Subramanian, Mrs. Dred Scott, 106 YALE L.J. 1033 (1997) (analyzing how the Dred Scott case might have come out differently had Harriet Robinson Scott been the focus of the case rather than her husband, and in doing so revealing profound racial and gender implications of nineteenth century marriage doctrine).
135. See Duggan, supra note 2, at 182 (noting the danger of deconstructing homosexuality without similarly deconstructing heterosexuality).
136. Hutchinson, supra note 59, at 589-90 (noting that social and economic forces would still function to oppress many gay people even if same-sex marriage were legalized). In a similar vein, I have argued that the process of gay people attaining full legal personhood may be gradual, stopping in contract along the way from public condemnation to full legal protections under doctrines such as marriage. See Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1110 (1996) [hereinafter Ertman, Contractual Purgatory].
137. Hutchinson, supra note 59, at 589-90 (noting that social and economic forces would still function to oppress many gay people even if same-sex marriage were legalized). In a similar vein, I have argued that the process of gay people attaining full legal personhood may be gradual, stopping in contract along the way from public condemnation to full legal protections under doctrines such as marriage. See Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1110 (1996) [hereinafter Ertman, Contractual Purgatory].
138. See Lesbian Women, Power of Women Collective, Lesbian Women: Love and Power, in ALL WORK AND NO PAY: WOMEN, HOUSEWORK, AND THE WAGES DUE 46, 48 (Wendy Edmond & Suzie Fleming eds., 1975). As one commentator noted in Lesbian Women: Love and Power: We are fighting for Wages for Housework because this struggle will enable millions of other women to join us - to identify our struggles and our lives with their own, and, in many cases, to become lesbian. Thousands of lesbian women are shut behind doors with their children, only waiting for a bit of power to be able to come out. Id.
139. See Rich, Compulsory Heterosexuality, supra note 13, at 232.
140. For a version of this scenario, see If Men Could Menstruate, in GLORIA STEINEM, OUTRAGEOUS ACTS AND EVERYDAY REBELLIONS 366 (2d ed. 1995). Steinem suggests that power differentials might remain even if male and female biological traits were reversed, satirically predicting that if, for example, men could menstruate, [g]enerals, right-wing politicians, and religious fundamentalists would cite menstruation ("men-struation") as proof that only men could serve God and country in combat ("You have to give blood to take blood"), occupy high political office ("Can women be properly fierce without a monthly cycle governed by the planet Mars?"), be priests, ministers, God Himself ("He gave this blood for our sins"), or rabbis ("Without a monthly purge of impurities, women are unclean"). Id. at 367.
141. See Ertman, Commercializing Marriage, supra note 4, at 96.
142. Id. at 72-73.
143. See Jane S. Schacter, Taking the Intersexional Imperative Seriously: Sexual Orientation and Marriage Reform, 75 DENV. U. L. REV.1255, 1257-58 (1998).
144. See Ertman, Commercializing Marriage, supra note 4, at 75-76, 92-97.
145. While I am sympathetic to Schacter's insight that "[r]etrenchment can be pretty bleak," Schacter, supra note 80, at 1258, this risk might be balanced by the tremendous promise in altering naturalized constructions of marriage. The no-fault revolution in divorce might not have uniformly helped women, but it did go a long way toward desanctifying the legal regulation of marriage, thus contributing to a climate in which PSAs are conceivable.
146. BUTLER, GENDER TROUBLE, supra note 14, at 136-39.
147. Id. at 137-38. Butler has clarified that she does not see gender as a free choice, akin to the way one chooses to wear a dress or trousers each morning. To the contrary, gender norms are part of what determine the subject, and thus constrain the range of choice one can exercise in performing a gender. JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" at x-xi (1993).
148. BUTLER, GENDER TROUBLE, supra note 14, at 147.
149. The repetition is endless, since [g]ender is a complexity whose totality is permanently deferred, never fully what it is at any given juncture in time. An open coalition, then, will affirm identities that are alternately instituted and relinquished according to the purposes at hand; it will be an open assemblage that permits of multiple convergences and divergences without obedience to a normative telos of definitional closure. Id. at 16.
150. Butler, Imitation, supra note 14, at 21.
151. Id.
152. Patriarchy Is Such a Drag, supra note 52, at 2004.
153. These inequalities in marriage are deeply rooted Claude Levi-Strauss described marriage as the exchange of women, a process in which women are gifts men give to one another to solidify male-male alliances. See Gayle Rubin, The Traffic in Women: Notes on the "Political Economy" of Sex, in TOWARD AN ANTHROPOLOGY OF WOMEN 157, 173 (Rayna R. Reiter ed., 1975) ("[M]arriages are a most basic form of gift exchange, in which it is women who are the most precious of gifts." (articulating LeviStrauss's theory of marriage as a form of gift exchange)). Under this analysis of marriage rituals, women are conduits to relationships between men rather than participants in the transaction, objects rather than subjects. Id. at 174 ("If it is women who are being transacted, then it is the men who give and take them who are linked, the woman being a conduit of a relationship rather than a partner to it") While Levi-Strauss builds his argument that all kinship is based on men exchanging women from data gathered on non-industrial societies, remnants of the exchange model persist in contemporary America. Many married women do not participate in the wage labor force, marriage enhances men's market potential, and women do the lion's share of housework even when they do work outside the home. FUCHS, supra note 5, at 60, 83; HOCHSCHILD, supra note 5, at 8. The view of marriage as an exchange between men is further supported by elements of contemporary marriage such as the bride exchanging her father's last name for her husband's, and the father giving the bride to the husband during the wedding ceremony.
154. For a list of marital rights, duties, and entitlements, see WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 66-70 (1996).
155. See, e.g., Janet E. Halley, Reasoning About Sodomy: Act and Identity In and After Bowers v. Hardwick, 79 VA. L. REV. 1721, 1747-48 (1993).
156. Kwan, supra note 11, at 1276-77 (warning against the dangers of reifying marginalized identities through intersectional theory).
157. Gayatri Chakravorty Spivak, Subaltern Studies: Deconstructing Histioragraphy, in SELECTED SUBALTERN STUDIES 3, 13-15 (Ranajit Guha & Gayatri Spivak eds., 1988). Judith Butler anticipates a more hostile response to identity deconstruction in a series of questions: But politically, we might argue, isn't it quite crucial to insist on lesbian and gay identities precisely because they are being threatened with erasure and obliteration from homophobic quarters? Isn't the above theory complicitous with those political forces that would obliterate the possibility of gay and lesbian identity? Isn't it "no accident" that such theoretical contestations of identity emerge within a political climate that is performing a set of similar obliterations of homosexual identities through legal and political means? Butler, Imitation, supra note 14, at 19 (emphasis in original).
158. Gayatri Chakravorty Spivak, Subaltern Studies: Deconstructing Histioragraphy, in SELECTED SUBALTERN STUDIES 3, 13-15 (Ranajit Guha & Gayatri Spivak eds., 1988). Judith Butler anticipates a more hostile response to identity deconstruction in a series of questions: But politically, we might argue, isn't it quite crucial to insist on lesbian and gay identities precisely because they are being threatened with erasure and obliteration from homophobic quarters? Isn't the above theory complicitous with those political forces that would obliterate the possibility of gay and lesbian identity? Isn't it "no accident" that such theoretical contestations of identity emerge within a political climate that is performing a set of similar obliterations of homosexual identities through legal and political means? Butler, Imitation, supra note 14, at 19 (emphasis in original).
159. Richard Delgado offers an example of such a warning: The price of strategic essentialism is not only that you get away from your agenda and your heart-of-hearts goals. You'll develop what Antonio Gramsci calls false consciousness. You'll forget who you are and what your original goals and commitments were. . . . Spending time with Republicans means you will inevitably take on the mindset of a Republican. A Black man active in a white-dominated civil rights organization will eventually take on the traits and concerns he finds there. A Black woman working in a male-dominated group will risk losing her identity as a Black feminist. Some social scientists call this "alienation." Richard Delgado, Rodrigo's Sixth Chronicle: Intersections, Essences, and the Dilemma of Social Reform, 68 N.Y.U. L. REV. 639, 653 (1993) (footnotes omitted).
160. Butler, Imitation, supra note 14, at 19 ("[A]ny consolidation of identity requires some set of differentiations and exclusions.").
161. Id. ("In avowing the sign's strategic provisionality (rather than its strategic essentialism), that identity can become a site of contest and revision, indeed, take on a future set of significations that those of us who use it now may not be able to foresee.").
162. Id.
163. Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 506 (1994).
164. Id. at 517 (pointing out that "[n]either essentialism nor constructivism is necessarily gay-affirmative") (emphasis added)).
165. Id. at 506.
166. Id. at 561.
167. Butler, Imitation, supra note 14, at 19 (emphasis omitted).
168. Halley, supra note 99, at 561.
169. Another level of strategic provisionality turns on PSAs' deliberate agnosticism about essentialist or constructivist understandings of sex and gender. As I describe at length in Commercializing Marriage, supra note 4, PSAs have the potential to either encourage or discourage traditional gender roles in marriage. Part of the reason that PSAs enjoy this flexibility (or, to put it negatively, indeterminacy) is that their predicted effects are determined by assumptions about sex and gender. If, for example, traditional gender roles are biologically determined (perhaps as a matter of sociobiological determination to maximize the chances that one's genes will be replicated in future gene pools), then women should play traditional roles regardless of legal incentives to do otherwise. Traditionalist legal economists take this position. If, on the other hand, gender is socially constructed and thus can be restructured based on legal incentives (as most feminists contend), then, given the right incentives, women might venture out into the wage labor force in a more focused way than many currently do. PSAs are malleable enough to accommodate both of these positions. Gender may be determined or not, and PSAs will protect the people (male or female) who play caretaking roles in marriage and family life. Thus, although Butler might object to PSAs' ability to accommodate essentialist notions of gender, she might appreciate their ability to serve both essentialist and constructionist notions of gender, thereby destabilizing either side's claim to truth.
170. Duggan, supra note 2, at 193.
171. Id. at 183.
172. Id. at 189.
173. Id. at 188. Nan Hunter coined the phrase "No Promo Homo" to describe and critique "state-imposed penalties on identity speech - or speech that promotes or professes homosexuality." Nan D. Hunter, Identity, Speech and Equality, in SEX WARS, supra note 2, at 140. Duggan takes Hunter's insights a step further, suggesting that the state should adopt a policy of No Promo Hetero instead of merely refraining from suppressing the promotion of homosexuality.
174. Duggan, supra note 2, at 191-92.
175. See id. at 185.
176. Id. at 192. However, while Duggan focuses on the differences between heterosexuals and gay people, PSAs focus on the different situations of men and women in marriage.
177. Duggan, supra note 2, at 181-86.
178. Id. at 193.
179. Id. at 190.
180. Case, supra note 16.
181. Franke, supra note 16.
182. Valdes, Queers, Sissies, Dykes, and Tomboys, supra note 16.
183. While there is substantial overlap between their approaches, each can be said to focus on a different point in the triangle of sex, gender, and sexual orientation: Case on gender, Franke on sex, and Valdes on orientation. Case, supra note 16, at 105 n.39.
184. Case contends that Title VII "correctly applied, already provide[s] the necessary protection to both effeminate men and feminine women, as well as their masculine counterparts." Case, supra note 16, at 4.
185. Franke, supra note 16, at 8.
186. Valdes, Queers, Sissies, Dykes, and Tomboys, supra note 16, at 17.
187. Case, supra note 16, at 7 ("It is my contention that, unfortunately, the world will not be safe for women in frilly pink dresses - they will not, for example, generally be as respected as either men or women in gray flannel suits - unless and until it is made safe for men in dresses as well.").
188. One could argue that dresses are unambiguous markers of femininity, while homemaking is behavior that both women and men engage in, albeit in varying degrees. In other words, a married father could leave the practice of law to teach secondary school in order to have more time with his children, and retain social ascriptions of masculinity. If, however, this same man substituted a golf skirt for khakis, or started sporting pearls, he would be subject to social penalties for transgressing sex/gender norms. This comparison may illustrate the differential penalties for various types of demasculinazation. The former lawyer may suffer economically for his family-driven career change, but also benefit socially both from the deeper relationship with his family and from social value ascribed to those men who demonstrate dedication to their families. The cross-dressing man, however, suffers both socially and economically, indicating that the sartorial elements of gender normativity may be stronger than those associated with participation in homemaking and wage-labor. See MARJORIE CAREER, VESTED INTERESTS: CROSS-DRESSING AND CULTURAL ANXIETY 52-66 (1992) (analyzing historical examples of cross-dressing).
189. See Case, supra note 16, at 4.
190. While it is not clear whether "the feminine tend[s] to be devalued because it is associated with women, or . . . women [are] devalued because they manifest feminine characteristics," Case mines cross-cultural evidence to suggest that the "the stronger line of causation runs from a disfavoring of women." Case, supra note 16, at 33. Thus "feminine characteristics are devalued relative to masculine ones, to the detriment not only of men displaying those feminine characteristics but of women generally." Id. at 28.
191. Franke, supra note 16, at 3 ("[S]exual identity - that is, what it means to be a woman and what it means to be a man - must be understood not in deterministic, biological terms, but according to a set of behavioral, performative norms.").
192. Id. at 5.
193. Id. at 8-9.
194. Franke makes the important clarification that gender performativity does not mean that one dons a gender in the morning like an outfit; to the contrary, Butler's theory of gender performativity "regards gender norms as part of what determines the subject. As such, construction is a constitutive constraint." Id. at 50-51 n.211.
195. Id. at 1-3.
196. Id. at 51-58.
197. See Valdes, Queers, Sissies, Dykes, and Tomboys, supra note 16, at 17.
198. Id. at 13; Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 165.
199. Valdes, Queers, Sissies, Dykes, and Tomboys, supra note 16, at 42; Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 169 ("[T]He conflationary status quo represents a regime of compulsory hetero-patriarchy.").
200. Valdes, Queers, Sissies, Dykes, and Tomboys, supra note 16, at 42; Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 169 ("[T]He conflationary status quo represents a regime of compulsory hetero-patriarchy.").
201. See Valdes, Unpacking Hetero-Patriarchy, supra note 16 at 162-63 (contending that the critique of the Euro-American sex/gender system as neither ahistorical nor universal allows "critical reconsideration of the legal value of human desire and intimacy," and that such a critique could contribute to "chang[ing] law from an instrument of sex/gender oppression to an engine for sex/gender liberation").
202. The legislative history of the Defense of Marriage Act (D.O.M.A.) illustrates this construction of traditional heterosexual marriage. The House Report in support of the D.O.M.A. included the following statement: "Marriage is the central cultural recourse for reconciling men and women's separate natures and different reproductive strategies. Indeed, the most important purpose of marriage is to unite men and women in a formal partnership that will last through the prolonged period of dependency of a human child." H.R. REP. NO. 104-664, at 14 n.50 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2918 n.50 (quoting Barbara Dafoe Whitehead, The War Between the Sexes, 7 AM. ENTERPRISE 26 (1996)). Hadley Arkes, Edward Ney Professor of Jurisprudence and American Institutions, Amherst College similarly testified: [S]exuality [is] imprinted on our very natures - in the obdurate fact that we are, as the saying goes, "engendered." We are, each of us, born a man or a woman. . . . Our engendered existence, as men and women, offers the most unmistakable, natural signs of the meaning and purpose of sexuality. And that is to say the function and purpose of begetting. Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. of the House Comm. on the Judiciary, 104th Cong. 99-100 (1996) (testimony of Hadley Arkes).
203. The legislative history of the Defense of Marriage Act (D.O.M.A.) illustrates this construction of traditional heterosexual marriage. The House Report in support of the D.O.M.A. included the following statement: "Marriage is the central cultural recourse for reconciling men and women's separate natures and different reproductive strategies. Indeed, the most important purpose of marriage is to unite men and women in a formal partnership that will last through the prolonged period of dependency of a human child." H.R. REP. NO. 104-664, at 14 n.50 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2918 n.50 (quoting Barbara Dafoe Whitehead, The War Between the Sexes, 7 AM. ENTERPRISE 26 (1996)). Hadley Arkes, Edward Ney Professor of Jurisprudence and American Institutions, Amherst College similarly testified: [S]exuality [is] imprinted on our very natures - in the obdurate fact that we are, as the saying goes, "engendered." We are, each of us, born a man or a woman. . . . Our engendered existence, as men and women, offers the most unmistakable, natural signs of the meaning and purpose of sexuality. And that is to say the function and purpose of begetting. Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. of the House Comm. on the Judiciary, 104th Cong. 99-100 (1996) (testimony of Hadley Arkes).
204. Valdes, Unpacking Hetero-Patriarchy, supra note 16, at 163.
205. ESKRIDGE, supra note 91; Eskridge, supra note 17, at 1419.
206. See supra note 137 (describing the legislative history of the Defense of Marriage Act).
207. Same-sex marriage may make more sense in many people's minds as the baby boom in the gay and lesbian community (dubbed the "gayby boom") takes hold in primary schools, emergency rooms, family law courts, and other arenas around the country. The idea of gay couples having children has penetrated the popular imagination through celebrity couples such as Melissa Etheridge and Julie Cypher, who demonstrated generous openness when they had publicly discussed their decision to have a child together. See Mark Miller, We're a Family and We Have Rights, NEWSWEEK, Nov. 4, 1996, at 54 (interviewing Melissa Etheridge and Julie Cypher). Once a critical mass of run-of-the-mill gay and lesbian couples begin interacting with PTA boards, school teachers, hospitals, and other social actors, parenthood may cease to be understood as unique to opposite sex couples. For further discussion of the way that the gayby boom could influence PSAs' applicability to same-sex couples, see infra Part III.
208. See Ertman, Commercializing Marriage, supra note 4.
209. This possibility became remote when Hawaii voters amended their constitution to authorize the state legislature to ban same-sex marriage. Sam Howe Verhovek, The 1998 Elections: The States - Initiatives, N.Y. TIMES, Nov. 5, 1998, at B1. Alaska voters similarly intervened in marriage litigation by amending their constitution to define marriage as a union between a man and a woman. Id. However, same-sex marriage litigation continues in Vermont. See Gustav Niebuhr, Laws Aside, Some in Clergy Quietly Bless Gay "Marriage," N.Y. TIMES, April 17, 1998, at A1.
210. This possibility became remote when Hawaii voters amended their constitution to authorize the state legislature to ban same-sex marriage. Sam Howe Verhovek, The 1998 Elections: The States - Initiatives, N.Y. TIMES, Nov. 5, 1998, at B1. Alaska voters similarly intervened in marriage litigation by amending their constitution to define marriage as a union between a man and a woman. Id. However, same-sex marriage litigation continues in Vermont. See Gustav Niebuhr, Laws Aside, Some in Clergy Quietly Bless Gay "Marriage," N.Y. TIMES, April 17, 1998, at A1.
211. See Hutchinson, supra note 59, at 586-602; see also Ruth Colker, Marriage, 3 YALE J.L. & FEMINISM 321, 326 (1991) ("[W]e should work to change the definition of family and the exclusive class-based ways that our society provides privileges, rather than encourage more people - gay or straight - to enter the institution of marriage."); Paula L. Ettelbrick, Legal Marriage Is Not the Answer, HARV. GAY & LESBIAN REV., Fall 1997, at 34 (arguing that "the battle for legal marriage is too narrow and too limited for our own community's interests, and that in pursuing it as our primary political objective we will rob ourselves of an important opportunity to challenge heterocentric sexual and family hierarchies"); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1536 (1993) ("[T]he desire to marry in the lesbian and gay community is an attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic institution that betrays the promise of both lesbian and gay liberation and radical feminism."); Charles R. P. Pouncy, Marriage and Domestic Partnership: Rationality and Inequality, 7 TEMPLE POL. & CIV. RTS. L. REV. 363, 370 (1998) ("The extension of same-sex marriage will cloak gay and lesbian couples in the traditions of patriarchy and heterosexism. Heterosexual norms will become the standards applied to lesbian and gay relationships, and the development of queer cultural constructions of intimate relationships will be stunted.").
212. See Hutchinson, supra note 59, at 586-602; see also Ruth Colker, Marriage, 3 YALE J.L. & FEMINISM 321, 326 (1991) ("[W]e should work to change the definition of family and the exclusive class-based ways that our society provides privileges, rather than encourage more people - gay or straight - to enter the institution of marriage."); Paula L. Ettelbrick, Legal Marriage Is Not the Answer, HARV. GAY & LESBIAN REV., Fall 1997, at 34 (arguing that "the battle for legal marriage is too narrow and too limited for our own community's interests, and that in pursuing it as our primary political objective we will rob ourselves of an important opportunity to challenge heterocentric sexual and family hierarchies"); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1536 (1993) ("[T]he desire to marry in the lesbian and gay community is an attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic institution that betrays the promise of both lesbian and gay liberation and radical feminism."); Charles R. P. Pouncy, Marriage and Domestic Partnership: Rationality and Inequality, 7 TEMPLE POL. & CIV. RTS. L. REV. 363, 370 (1998) ("The extension of same-sex marriage will cloak gay and lesbian couples in the traditions of patriarchy and heterosexism. Heterosexual norms will become the standards applied to lesbian and gay relationships, and the development of queer cultural constructions of intimate relationships will be stunted.").
213. See Hutchinson, supra note 59, at 586-602; see also Ruth Colker, Marriage, 3 YALE J.L. & FEMINISM 321, 326 (1991) ("[W]e should work to change the definition of family and the exclusive class-based ways that our society provides privileges, rather than encourage more people - gay or straight - to enter the institution of marriage."); Paula L. Ettelbrick, Legal Marriage Is Not the Answer, HARV. GAY & LESBIAN REV., Fall 1997, at 34 (arguing that "the battle for legal marriage is too narrow and too limited for our own community's interests, and that in pursuing it as our primary political objective we will rob ourselves of an important opportunity to challenge heterocentric sexual and family hierarchies"); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1536 (1993) ("[T]he desire to marry in the lesbian and gay community is an attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic institution that betrays the promise of both lesbian and gay liberation and radical feminism."); Charles R. P. Pouncy, Marriage and Domestic Partnership: Rationality and Inequality, 7 TEMPLE POL. & CIV. RTS. L. REV. 363, 370 (1998) ("The extension of same-sex marriage will cloak gay and lesbian couples in the traditions of patriarchy and heterosexism. Heterosexual norms will become the standards applied to lesbian and gay relationships, and the development of queer cultural constructions of intimate relationships will be stunted.").
214. See Hutchinson, supra note 59, at 586-602; see also Ruth Colker, Marriage, 3 YALE J.L. & FEMINISM 321, 326 (1991) ("[W]e should work to change the definition of family and the exclusive class-based ways that our society provides privileges, rather than encourage more people - gay or straight - to enter the institution of marriage."); Paula L. Ettelbrick, Legal Marriage Is Not the Answer, HARV. GAY & LESBIAN REV., Fall 1997, at 34 (arguing that "the battle for legal marriage is too narrow and too limited for our own community's interests, and that in pursuing it as our primary political objective we will rob ourselves of an important opportunity to challenge heterocentric sexual and family hierarchies"); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1536 (1993) ("[T]he desire to marry in the lesbian and gay community is an attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic institution that betrays the promise of both lesbian and gay liberation and radical feminism."); Charles R. P. Pouncy, Marriage and Domestic Partnership: Rationality and Inequality, 7 TEMPLE POL. & CIV. RTS. L. REV. 363, 370 (1998) ("The extension of same-sex marriage will cloak gay and lesbian couples in the traditions of patriarchy and heterosexism. Heterosexual norms will become the standards applied to lesbian and gay relationships, and the development of queer cultural constructions of intimate relationships will be stunted.").
215. Hutchinson, supra note 59, at 597-98.
216. See id. at 592 (footnote omitted).
217. See id. at 593.
218. Brown, supra note 24, at 795-96; Perry, supra note 24, at 2486; see also Ertman, Commercializing Marriage, supra note 4, at 104-05.
219. Perry, supra note 24, at 2487-98; Dorothy E. Roberts, Spiritual and Menial Housework, 9 YALE J.L. & FEMINISM 51 (1997).
220. See Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 762 (1997). Bowman discusses the racialized history of the repeal of common law marriage, including Louisiana's treatment of common law marriage in order to discourage manumission of slaves through liaisons between white men and female slaves. See id. at 737.
221. Perry, supra note 24, at 2483 (describing 1987 Census Bureau statistics that 18 percent of white women were awarded alimony, compared to less than 8 percent of African American women).
222. Ertman, Commercializing Marriage, supra note 4, at 105. Nancy Staudt similarly proposes to tax housework and create a household income tax credit. Nancy Staudt, Taxing Housework, 84 GEO. L.J. 1571, 1630-31 (1996).
223. Ertman, Commercializing Marriage, supra note 4, at 105. Nancy Staudt similarly proposes to tax housework and create a household income tax credit. Nancy Staudt, Taxing Housework, 84 GEO. L.J. 1571, 1630-31 (1996).
224. Achieving this goal would require that PSAs also intervene in the dichotomy between spiritual and menial housework, so that all homemaking would be commodified and valued. See Roberts, supra note 149.
225. See PHILIP BLUMSTEIN & PEPPER SCHWARTZ, AMERICAN COUPLES: MONEY, WORK, SEX 148-51 (1983) (suggesting that "same-sex couples cannot assign housework on the basis of who is male and who is female"); Lawrence A. Kurdek, The Allocation of Household Labor in Gay, Lesbian, and Heterosexual Married Couples, 49 J. SOC. ISSUES, Fall 1993, at 127, 138 (finding that gay and lesbian couples allocate household labor on bases other than gender); see also Janet Lever, Lesbian Sex Survey, ADVOCATE, Aug. 22, 1995, at 22. The Advocate survey indicates: There is very little evidence that images of masculinity or femininity relate to who takes the role of sexual aggressor within relationships. Who does the cooking is also unrelated to relative butch-femme ratings, but there is a strong correspondence to who does more driving - even being just somewhat more masculine than a partner puts one behind the wheel far more often. Id. at 28. This data from the Advocate survey should, however, be taken in the context of respondents' demographics: The average age was 34; 86 percent of the respondents were white (compared to 8 percent Hispanic/Latina, 2 percent African American or black, 1 percent Native American, 1 percent Asian, and 2 percent "other"); nearly two-thirds had at least a college degree and more than 25 percent had a graduate degree (compared to 14 percent of American women holding a bachelor's degree and 6 percent having an advanced degree); and the average personal income was $32,000. Id. at 25.
226. See PHILIP BLUMSTEIN & PEPPER SCHWARTZ, AMERICAN COUPLES: MONEY, WORK, SEX 148-51 (1983) (suggesting that "same-sex couples cannot assign housework on the basis of who is male and who is female"); Lawrence A. Kurdek, The Allocation of Household Labor in Gay, Lesbian, and Heterosexual Married Couples, 49 J. SOC. ISSUES, Fall 1993, at 127, 138 (finding that gay and lesbian couples allocate household labor on bases other than gender); see also Janet Lever, Lesbian Sex Survey, ADVOCATE, Aug. 22, 1995, at 22. The Advocate survey indicates: There is very little evidence that images of masculinity or femininity relate to who takes the role of sexual aggressor within relationships. Who does the cooking is also unrelated to relative butch-femme ratings, but there is a strong correspondence to who does more driving - even being just somewhat more masculine than a partner puts one behind the wheel far more often. Id. at 28. This data from the Advocate survey should, however, be taken in the context of respondents' demographics: The average age was 34; 86 percent of the respondents were white (compared to 8 percent Hispanic/Latina, 2 percent African American or black, 1 percent Native American, 1 percent Asian, and 2 percent "other"); nearly two-thirds had at least a college degree and more than 25 percent had a graduate degree (compared to 14 percent of American women holding a bachelor's degree and 6 percent having an advanced degree); and the average personal income was $32,000. Id. at 25.
227. See PHILIP BLUMSTEIN & PEPPER SCHWARTZ, AMERICAN COUPLES: MONEY, WORK, SEX 148-51 (1983) (suggesting that "same-sex couples cannot assign housework on the basis of who is male and who is female"); Lawrence A. Kurdek, The Allocation of Household Labor in Gay, Lesbian, and Heterosexual Married Couples, 49 J. SOC. ISSUES, Fall 1993, at 127, 138 (finding that gay and lesbian couples allocate household labor on bases other than gender); see also Janet Lever, Lesbian Sex Survey, ADVOCATE, Aug. 22, 1995, at 22. The Advocate survey indicates: There is very little evidence that images of masculinity or femininity relate to who takes the role of sexual aggressor within relationships. Who does the cooking is also unrelated to relative butch-femme ratings, but there is a strong correspondence to who does more driving - even being just somewhat more masculine than a partner puts one behind the wheel far more often. Id. at 28. This data from the Advocate survey should, however, be taken in the context of respondents' demographics: The average age was 34; 86 percent of the respondents were white (compared to 8 percent Hispanic/Latina, 2 percent African American or black, 1 percent Native American, 1 percent Asian, and 2 percent "other"); nearly two-thirds had at least a college degree and more than 25 percent had a graduate degree (compared to 14 percent of American women holding a bachelor's degree and 6 percent having an advanced degree); and the average personal income was $32,000. Id. at 25.
228. See Michelle Huston & Pepper Schwartz, The Relationships of Lesbians and Gay Men, in UNDER-STUDIED RELATIONSHIPS: OFF THE BEATEN TRACK 89, 108-11 (Julia T. Wood & Steve Duck eds., 1995). But see Nancy E. Murphy, Note, Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 30 VAL. U. L. REV. 335, 340 & nn.34, 36 (citing CLAIRE M. RENZETTI, VIOLENT BETRAYAL: PARTNER ABUSE IN LESBIAN RELATIONSHIPS (1992) in asserting that domestic violence in same-sex relationships occurs with the same frequency and in a similar manner as domestic violence occurring in opposite-sex relationships).
229. See Michelle Huston & Pepper Schwartz, The Relationships of Lesbians and Gay Men, in UNDER-STUDIED RELATIONSHIPS: OFF THE BEATEN TRACK 89, 108-11 (Julia T. Wood & Steve Duck eds., 1995). But see Nancy E. Murphy, Note, Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 30 VAL. U. L. REV. 335, 340 & nn.34, 36 (citing CLAIRE M. RENZETTI, VIOLENT BETRAYAL: PARTNER ABUSE IN LESBIAN RELATIONSHIPS (1992) in asserting that domestic violence in same-sex relationships occurs with the same frequency and in a similar manner as domestic violence occurring in opposite-sex relationships).
230. See Michelle Huston & Pepper Schwartz, The Relationships of Lesbians and Gay Men, in UNDER-STUDIED RELATIONSHIPS: OFF THE BEATEN TRACK 89, 108-11 (Julia T. Wood & Steve Duck eds., 1995). But see Nancy E. Murphy, Note, Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 30 VAL. U. L. REV. 335, 340 & nn.34, 36 (citing CLAIRE M. RENZETTI, VIOLENT BETRAYAL: PARTNER ABUSE IN LESBIAN RELATIONSHIPS (1992) in asserting that domestic violence in same-sex relationships occurs with the same frequency and in a similar manner as domestic violence occurring in opposite-sex relationships).
231. Huston & Schwartz, supra note 155, at 108-11.
232. In particular, Both gay and lesbian partners will engage in the provider role, but they each prefer a co-provider situation. Gay men, like other men, do not expect that a provider will take care of them. When one gay partner is the provider, the partner who is being provided for tends to be more dissatisfied with the situation. In contrast, lesbians do not expect to support another person financially, except temporarily. Lesbians are not socialized, as many men are, to take pleasure in a paternalistic provider role. A lesbian who finds herself in the role of provider is likely to be the more dissatisfied partner with the situation. Virginia Rutter & Pepper Schwartz, Same-Sex Couples: Courtship, Commitment, Context, in THE DIVERSITY OF HUMAN RELATIONSHIPS 197, 209 (Ann Elisabeth Auhagen & Maria von Salisch eds., 1996).
233. Id.
234. BLUMSTEIN & SCHWARTZ, supra note 154, at 148-49.
235. Given the legal and social hostility to gay people caring for children, it is difficult to calculate the number of gay and lesbian parents. Certainly the number of same-sex couples with children seems to be on the rise. See supra note 141. But even if gay parenting is becoming increasingly prevalent, it seems likely that a higher percentage of heterosexual couples (particularly those who are married) have children than same-sex couples.
236. For another gay-affirmative argument favoring differential treatment of same-sex and heterosexual couples, see Pouncy, supra note 144, at 370.
237. Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec. 3, 1996) (enjoining the state from denying marriage licenses "solely because applicants are of the same sex"). While the Hawaii legislature may exercise its recently acquired power to ban same-sex marriage, Vermont's litigation continues apace. See supra note 143.
238. HAW. REV. STAT. § 572C (Supp. 1997).
239. Peggy Lowe, Same-Sex Registrations Endorsed, DENV. POST, July 9, 1998, at B1; GOVERNOR'S COMM'N ON THE RIGHTS AND RESPONSIBILITIES OF SAME-SEX RELATIONSIHPS, STATE OF COLO., REPORT, FINDINGS AND RECOMMENDATIONS (1998) (copy on file with the author). As a member of the legal subcommittee of Governor Romer's Commission on Rights and Responsibilities of Same-Sex Relationships, I participated in numerous spirited and nuanced debates about optimal state regulations of same-sex relationships. Like Jane Schacter, I prefer a legal regime which recognizes a "pluralism of affiliative structures." Schacter, supra note 80, at 1259. However, given the gendered divisions of labor upon which PSAs rest, PSAs might be more justified under a marriage model than within an alternative such as domestic partnership.
240. Peggy Lowe, Same-Sex Registrations Endorsed, DENV. POST, July 9, 1998, at B1; GOVERNOR'S COMM'N ON THE RIGHTS AND RESPONSIBILITIES OF SAME-SEX RELATIONSIHPS, STATE OF COLO., REPORT, FINDINGS AND RECOMMENDATIONS (1998) (copy on file with the author). As a member of the legal subcommittee of Governor Romer's Commission on Rights and Responsibilities of Same-Sex Relationships, I participated in numerous spirited and nuanced debates about optimal state regulations of same-sex relationships. Like Jane Schacter, I prefer a legal regime which recognizes a "pluralism of affiliative structures." Schacter, supra note 80, at 1259. However, given the gendered divisions of labor upon which PSAs rest, PSAs might be more justified under a marriage model than within an alternative such as domestic partnership.
241. Ertman, Contractual Purgatory, supra note 74, at 1137-40 (discussing same-sex cohabitation contracts and the remarkable case Crooke v. Gilden, 414 S.E.2d 645 (Ga. 1992), in which the Georgia Supreme Court invoked the parol evidence rule to exclue evidence that a cohabitation contract between two women was based on "illegal and immoral" consideration). The Florida Court of Appeals similarly enforced a same-sex cohabitation contract, reasoning that: [E]ven though the state has prohibited same-sex marriages and same-sex adoptions, it has not prohibited this type of agreement. . . . Even though no legal rights or obligations flow as a matter of law from a non-marital relationship, we see no impediment to the parties to such a relationship agreeing between themselves to provide certain rights and obligations. Posik v. Layton, 695 So. 2d 759, 761 (Fla. Dist. Ct. App. 1997); see also Silver v. Starrett, 674 N.Y.S.2d 915, 918 (Sup. Ct. 1998) ("In non-marital breakups, the law largely leaves the post-relationship consequences to such agreements as its parties may work out.").
242. This point also holds true for PSAs as applied to heterosexual couples. See Ertman, Commercializing Marriage, supra note 4, at 110.
243. See supra text accompanying note 79.
244. Duggan, supra note 2, at 193 ("The question is: At this historical moment, can we transform any liberal rhetoric in the interests ultimately of going beyond liberal categories and solutions? Or, given the difficulty or translating our most radical insights and arguments into effective public discourse, can we afford not to try?").