Loving before and after the law

Fordham Law Review

Volumn 76, Issue 6, 2008, Pages 2821-2847

  Harris, Angela P ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 46049097357     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (141)

1. This view, of course, contradicts the view recently taken by the U.S. Supreme Court that marriage is a state and local matter, not a federal one. See, e.g., United States v. Morrison, 529 U.S. 598, 608 (2000) (striking down the civil rights provision of the Violence Against Women Act in order to avoid "obliterating] the distinction between what is national and what is local and creating] a completely centralized government." (citing Nat'l Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937))). But see Sally F. Goldfarb, The Supreme Court, the Violence Against Women Act, and the Use and Abuse of Federalism, 71 Fordham L. Rev. 57, 109-10 (2002) (arguing that domestic relations have a national impact and Morrison was wrongly decided);
2. Catharine A. MacKinnon, Disputing Male Sovereignty: On United States v. Morrison, 114 Harv. L. Rev. 135, 136 (2000) (same);
3. Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L.J. 441 (2000) (arguing that Morrison was wrong). Certainly marriage has always been primarily legally regulated at the state and local level. However, as recent scholarship has pointed out, the right to marry and the importance of marriage has frequently occupied a central place in national debates over what it means to be a citizen.
4. See generally Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2000) (arguing that marriage is and always has been a public institution and describing national debates over marriage).
5. See generally Linda Bosniak, Citizenship Denationalized, 7 Ind. J. Global Legal Stud. 447 (2000).
6. Id. at 452.
7. Id. at 479.
8. See, e.g., Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625 (2007);
9. Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405 (2005);
10. see also Nancy F. Cott, Marriage and Women's Citizenship in the United States, 1830-1934, 103 Am. Hist. Rev. 1440 (1998).
11. See infra Part III.
12. See id.
13. See Iris Marion Young, Justice and the Politics of Difference 44-48 (1990) (explaining the difference between social groups and mere aggregates of individuals).
14. 388 U.S. 1 (1967).
15. Cott, supra note 1, at 114-15 (quoting The Mormons: Shall Utah Be Admitted into the Union?, 5 Putnam's Monthly 234, 235-36 (1855)).
16. The term is an homage to Michel Foucault's play on words: "subjection" means the production of political subjects, but it also is a synonym for domination. Michel Foucault, Two Lectures, in Culture/Power/History: A Reader in Contemporary Social Theory 200, 214 (Nicholas B. Dirks et al. eds., 1994).
17. See infra Part I.A (exploring this term more fully).
18. See Rogers M. Smith. Civic Ideals: Conflicting Visions of Citizenship in U.S. History 36-38 (1997).
19. Rogers Smith offers a well-known quote by historian Philip Gleason to articulate this conception: Historically, to be an American, "a person did not have to be of any particular national, linguistic, religious, or ethnic background. All he had to do was to commit himself to the political ideology centered on the abstract ideals of liberty, equality, and republicanism. Thus the universalist ideological character of American nationality meant that it was open to anyone who willed to become an American." Id. at 14-15 (quoting Philip Gleason, American Identity and Americanization, in Concepts of Ethnicity 57, 62-63 (William Peterson, Michael Novak & Philip Gleason eds., 1982)).
20. Id. at 15. In the historical literature, Bernard Bailyn, The Ideological Origins of the American Revolution (1967);
21. Gordon S. Wood, The Radicalism of the American Revolution 95-96 (1991);
22. and J.G.A. Pocock, Between Gog and Magog: The Republican Thesis and the Idealogia Americana, 48 J. Hist. Ideas 325 (1987), have stressed the importance of civic republicanism as an American ideology. Republicanism approaches political belonging as a collective rather than individual matter: to be a citizen means to have the character and wherewithal necessary to deliberate on and contribute to the common good. See Smith, supra note 13, at 36 ("[T]he conception of society as a democratic republic offers the prospect of political self-governance and of membership in a community of mutually supportive citizens. . . . [T]here are clear attractions in a civic life that is [sic] expressive of one's personal dignity, responsive to one's concerns, and shared with sturdy, loyal peers.").
23. Smith, supra note 13, at 18. As Smith observes, Taken together, nonwhite, nonmale, non-Christian, nonheterosexual peoples have always comprised the vast majority of the world's population, and they have always added up to far more than a majority of the inhabitants of the territorial United States as well. Yet their places and roles in American society have never been captured by the categories analysts stress in characterizing American politics. They have instead been "lower races," "savages" and "unassimilables," slaves and servants, aliens and denizens, "unnatural" criminals and second-class citizens, wives, and mothers. Id. at 17-18.
24. Id. at 36.
25. I borrow this term from law and history scholar Rebecca Hall, who gives the name "racialized gender" to the way in which gender has been understood through race, and vice versa. Rebecca Hall, Not Killing Me Softly: African American Women, Slave Revolts, and Historical Constructions of Racialized Gender, Women's Hist. Rev. (forthcoming 2008).
26. See generally Kathleen M. Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (1996).
27. See, e.g., Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship 33 (1998);
28. Ian Haney Lopez, White by Law: The Legal Construction of Race 139-42 (2006) (describing how the federal courts interpreted the "whiteness" requirement in the federal naturalization statute); Abrams, supra note 5, at 1633-36 (describing how courts and Congress dealt with the interaction of the naturalization requirements with marriage, in some cases divesting women of their U.S. citizenship when they married "aliens ineligible for citizenship"); Volpp, supra note 5, at 427 & n.112 (same).
29. See Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 Colum. L. Rev. 641, 692 (2005); Volpp, supra note 5, at 411 (noting that Chinese women were associated with prostitution).
30. See Gail Bederman, Manliness & Civilization: A Cultural History of Gender and Race in the United States, 1880-1917, at 12-15 (1995).
31. See, e.g., Pamela Bridgewater, Breeding a Nation: Reproductive Slavery, the Thirteenth Amendment, and the Pursuit of Freedom (2007); Brown, supra note 19;
32. Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum Perspective, 51 Stan. L. Rev. 221, 223-24 (1999);
33. Camille Nelson, American Husbandry: Legal Norms Impacting the Production of (Re)Productivity, 19 Yale J.L. & Feminism 1 (2007);
34. Jennifer Wriggins, Rape, Racism, and the Law, 6 Harv. Women's L.J. 103, 117-23 (1983).
35. See William E. Connolly, Liberalism, Secularism, and the Nation, in Why I Am Not a Secularist 73, 77-82 (1999) (exploring the assumption of a certain level of "civilization" underpinning John Stuart Mill's commitments to tolerance and dissent).
36. See Smith, supra note 13, at 38. I explore these points more fully in a book project in progress, tentatively titled What We Talk About When We Talk About Race: Race and Governance in American Legal Thought.
37. See Hortense J. Spillers, Mama's Baby, Papa's Maybe: An American Grammar Book, 17 Diacritics 65 (1987).
38. Joan Wallach Scott, Gender and the Politics of History 42 (1999).
39. Joan Wallach Scott gives this example: The concept of class in the nineteenth century relied on gender for its articulation. While middle-class reformers in France, for example, depicted workers in terms coded as feminine (subordinated, weak, sexually exploited like prostitutes), labor and socialist leaders replied by insisting on the masculine position of the working class (producers, strong, protectors of their women and children). The terms of this discourse were not explicitly about gender, but they were strengthened by references to it. The gendered "coding" of certain terms established and "naturalized" their meanings. Id. at 48.
40. Id. at 49.
41. Specifically, "race" stood for the natural limit of politics: racial groups that lacked the basic moral virtue, political aptitude, and/or social and political institutions necessary for self-government could not be assimilated into a democratic society. I explore this claim in more detail in my forthcoming book. For a useful history of race discourse in North America, see generally Audrey Smedley, Race in North America: Origin and Evolution of a Worldview (1993).
42. See Unequal Sisters: A Multicultural Reader in U.S. Women's History (Vicki L. Ruiz & Ellen Carol DuBois eds., 2d ed. 1994);
43. Tessie Liu, Teaching the Differences Among Women from a Historical Perspective: Rethinking Race and Gender as Social Categories, 14 Women's Stud. Int'l Forum 265-76 (1991).
44. 1 L. Oppenheim, International Law: A Treatise § 7, at 11-12 (1905).
45. Id. § 27.
46. See Antony Anghie, Imperialism, Sovereignty, and the Making of International Law 52-65 (2005);
47. Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int'l L.J. 1, 26-27 (1999).
48. For an extended exploration of the idea that "the family" is naturally "outside politics," and its influence on the philosophical tradition, see generally Susan Moller Okin, Justice, Gender, and the Family (1989).
49. See Davis, supra note 23, at 236-37; see also Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America 82-90 (1997);
50. Saidiya Hartman, Seduction and the Ruses of Power, in Between Woman and Nation: Nationalisms, Transnational Feminisms, and the State 111 (Caren Kaplan et al. eds., 1999).
51. For a case study of a lawyer's ultimately failed attempt to defend a slave woman who killed her white rapist based on the theory that she was protecting her "womanly honor," see Melton A. McLaurin, Celia, A Slave (1991).
52. See Cott, supra note 1; see also Sarah Song, Justice, Gender, and the Politics of Multiculturalism 156 (2007) ("What is clear is that the use of polygamy as the federal point of attack proved politically effective, not only for dismantling Mormon power but also for deflecting attention from monogamy and the patriarchal norms associated with it.").
53. Cott, supra note 1, at 72.
54. Id.
55. Id.
56. Id. at 73 (footnote omitted).
57. Id. at 111.
58. Id. at 74 (footnote omitted).
59. Id.
60. Id.
61. Id. at 112-13.
62. 98 U.S. 145 (1878).
63. Id. at 162.
64. Id. at 164.
65. Id. at 164-66.
66. The statute provided, "That no polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described as aforesaid in this section," - that is, with any "polygamist, bigamist, or person cohabiting with more than one woman . . . shall be entitled to vote at any election held in [the territory]." Edmunds Act of Mar. 22, 1882, ch. 47, § 2, 22 Stat. 30, 31 (repealed 1983).
67. 114 U.S. 15 (1885).
68. Id. at 45.
69. 87 S.E.2d 749, 750-51 (Va. 1955). The statute at issue read as follows: It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian . . . . [T]he term "white person" shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. Id. (quoting Va. Code Ann. § 20-54 (1950)).
70. Id. at 752 (quoting State v. Gibson, 36 Ind. 389, 402-03 (1871)).
71. For a useful exegesis of the origins of the police power, see Markus Dirk Dubber, "The Power to Govern Men and Things": Patriarchal Origins of the Police Power in American Law, 52 Buff. L. Rev. 1277, 1319-20 (2004).
72. Commonwealth v. Allison, 116 N.E. 265, 266 (Mass. 1917).
73. Dubber, supra note 57, at 1286-87.
74. People v. Gallardo, 243 P.2d 532, 535-36 (Cal. Dist. Ct. App. 1952).
75. The history of eugenics regulation clearly demonstrates the operation of racialized gender in American law. See, e.g., Edwin Black, War Against the Weak: Eugenics and America's Campaign to Create a Master Race (2003);
76. Wendy Kline, Building a Better Race: Gender, Sexuality, and Eugenics from the Turn of the Century to the Baby Boom (2001);
77. Alexandra Minna Stem, Eugenic Nation: Faults & Frontiers of Better Breeding in Modern America (2005);
78. see also Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997).
79. See generally Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993).
80. Eva Saks quotes one court writing in 1877 just as the upheavals of Reconstruction were coming to a close: "[It] is . . . a fact not always sufficiently felt, that the more humble and helpless families are, the more they need this sort of protection. Their spirits are crushed, or become rebellious, when other ills besides those of poverty, are heaped upon them." Eva Saks, Representing Miscegenation Law, 8 Raritan 39, 50 (1988) (quoting Green v. State, 58 Ala. 190, 194 (1877)).
81. For a detailed case study in Louisiana of how the law of inheritance worked with antimiscegenation laws and gender laws involving "legitimate" and "illegitimate" children to keep black and white branches of the same family apart, see Virginia R. Domínguez, White by Definition: Social Classification in Creole Louisiana (1994).
82. Green, 58 Ala. at 191.
83. Id. at 192.
84. Id. at 194.
85. Id.
86. Loving v. Virginia, 388 U.S. 1, 11 (1967).
87. Monte Neil Stewart, Eliding in Washington and California, 42 Gonz. L. Rev. 501, 512 (2007);
88. see Maggie Gallagher, If Marriage Is Natural, Why Is Defending It So Hard? Taking Up the Challenge to Marriage in the Pews and the Public Square, 4 Ave Maria L. Rev. 409, 417 (2006) ("Marriage as a natural institution that exists in some form in every known society rests on three core facts of human nature: Men and women are powerfully attracted to a sexual act that makes new life; making babies is optional for individuals, but not for societies; and babies need a father as well as a mother. Sex makes babies, society needs babies, and babies need their mothers and fathers. These three ideas together form the heart of the marriage idea as a virtually universal social institution." (footnote omitted)).
89. Monte Neil Stewart describes these social goods as "produced materially and even uniquely by the man/woman meaning and therefore the social goods . . . must disappear when that meaning is de-institutionalized." Stewart, supra note 70, at 506. Stewart writes, The man/woman marriage institution is: 1. Society's best and probably only effective means to make real the right of a child to know and be brought up by his or her biological parents (with exceptions justified only in the best interests of the child, not those of any adult). 2. [T]he most effective means humankind has developed so far to maximize the level of private welfare provided to the children conceived by passionate, heterosexual coupling (with "private welfare" meaning not just the basic requirements like food and shelter but also education, play, work, discipline, love, and respect). 3. The indispensable foundation for that child-rearing mode - that is, married mother/father child-rearing - that correlates (in ways not subject to reasonable dispute) with the optimal outcomes deemed crucial for a child's - and therefore society's - well being. 4. Society's primary and most effective means of bridging the male-female divide. 5. Society's only means of conferring and transforming the identity and status of a male into husband/father, and a female into wife/mother - statuses and identities particularly beneficial to society. 6. Social and official endorsement of that form of adult intimacy - married heterosexual intercourse - that society may rationally value above all other such forms. That rationality has been demonstrated in the scholarly literature and remains, to date, unrefuted. Id. at 504-06 (internal quotation marks and footnotes omitted).
90. See Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It 32 (2000) (describing "domesticity's central defining split between men's commercial interactions with strangers in the market and the intimate family atmosphere of home").
91. Katharine Silbaugh notes that the ideology of domesticity structured not only employment relations and the management of care work in the United States, but human geography itself: the traditional American post-war suburb was built around an assumed split between work and home. See generally Katharine Silbaugh, Women's Place: Urban Planning, Housing Design, and Work-Family Balance, 76 Fordham L. Rev. 1797 (2007).
92. See Nancy Folbre, The Invisible Heart: Economics and Family Values 89 (2001) ("Parents subsidized capitalists, producing workers that employers could hire without paying the actual cost of producing and training them.");
93. see also Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies 2, 5 (1995) (observing that, for most of us, "the 'family' has as its core a sexual tie" and suggesting instead that the mother-child unit be considered the core of a family).
94. As Nancy Folbre explains, From its inception, Social Security provided benefits for the wives of eligible workers as well as the workers themselves (husbands of eligible workers were not added until the 1970s). A married retiree receives an additional stipend for his spouse, making his monthly check far larger than it would have been if he were single. Furthermore, Social Security provides a form of life insurance for family members: if a covered worker dies before retirement, survivors' benefits are provided for his spouse and minor children. In this way, Social Security subsidizes the traditional breadwinner/homemaker family. Folbre, supra note 73, at 98.
95. See Jill Elaine Hasday, Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations, 90 Geo. L.J. 299, 357-68 (2002) (arguing that Aid to Dependent Children and its successor welfare programs have been built around gendered family responsibility norms).
96. Gary Cross, An All-Consuming Century: Why Commercialism Won in Modern America 43-46 (2000) (describing how, between 1900 and 1930, consumer culture fostered a more egalitarian vision of the family while reinforcing the nuclear family structure).
97. See id. at 97 (describing how, in the 1950s, conservatives saw the middle-class family as a protection against "sexual license, a cosmopolitan culture, and the welfare state," and in turn associated shopping for and buying consumer goods with middle-class life).
98. See id. at 74 (describing the prevalent belief among political leaders in the 1930s that "government encouragement of home ownership would create 'good citizenship'").
99. Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 44 (2004).
100. See generally Linda C. McClain, Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law, 28 Cardozo L. Rev. 2133 (2007).
101. James Q. Wilson suggests that marriage also makes men healthier: Most married men have wives who tell them what to eat, urge them to stay home instead of going to saloons, keep them away from rowdy gangs, and reduce the amount of alcohol they drink. . . . Married men are likely to have wives who urge them to stop smoking, cut back on drinking, and eat a more nutritious diet. James Q. Wilson, The Marriage Problem: How Our Culture Has Weakened Families 16-17 (2002).
102. Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 145 (2006).
103. Lauren Berlant argues that marriage as a public practice of citizenship has so influenced fourth-dimension citizenship that "the political public sphere has become an intimate public sphere." As she puts it, In the new nostalgia-based fantasy nation of the "American way of life," the residential enclave where "the family" lives usurps the modernist promise of the culturally vital, multiethnic city; in the new, Utopian America, mass-mediated political identifications can only be rooted in traditional notions of home, family, and community. Meanwhile, the notion of a public life, from the profession of politician to non-family-based forms of political activism, has been made to seem ridiculous and even dangerous to the nation. Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship 5 (2002).
104. Rachel F. Moran, How Second-Wave Feminism Forgot the Single Woman, 33 Hofstra L. Rev. 223, 283 (2004) (footnotes omitted).
105. R. Richard Banks & Su Jin Gatlin, African American Intimacy: The Racial Gap in Marriage, 11 Mich. J. Race & L. 115, 118-19 (2005) (footnotes omitted).
106. Naomi Cahn & June Carbone, Red Families v. Blue Families 12-13 (George Wash. Univ. Law Sch. Pub. Law & Legal Theory, Working Paper No. 343, 2007), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1008544.
107. See generally June Carbone, From Partners to Parents: The Second Revolution in Family Law (2000);
108. Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap (1992).
109. See generally Cahn & Carbone, supra note 85, at 12-13.
110. Naomi Cahn and June Carbone's larger argument is that family models in the United States have polarized into two competing models: "red families" and "blue families." Id. at 1. The regions politically dominated by the Republican Party - the "red states" - are more likely to both preach and attempt to practice traditional family values, including early marriage and childbearing and higher fertility rates. Id. at 2-3. Regions dominated by the Democratic Party - the "blue states" - have adopted in theory and practice the new middle-class model, which "posits a substantial separation from the beginning of adulthood and the assumption of family responsibilities." Id. at 58.
111. Marc Spindelman, Homosexuality's Horizon, 54 Emory L.J. 1361 (2005).
112. Rachel F. Moran, Interracial Intimacy: The Regulation of Race and Romance 104 (2001).
113. Brown v. Board of Educ., 347 U.S. 483 (1954). See generally Angela P. Harris, From Stonewall to the Suburbs? Toward a Political Economy of Sexuality, 14 Wm. & Mary Bill Rts. J. 1539 (2006).
114. For a classic statement of this argument, see generally Michael Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life (1999).
115. For a spirited popular denunciation of this social norm, see Bella DePaulo, Singled Out: How Singles Are Stereotyped, Stigmatized, and Ignored, and Still Live Happily Ever After (2006).
116. For a scholarly argument that we may be replacing "compulsory heterosexuality" with "compulsory matrimony," see Ruthann Robson, Assimilation, Marriage, and Lesbian Liberation, 75 Temp. L. Rev. 709, 778-800 (2002).
117. See Fineman, supra note 73, at 5.
118. For examples of creative thinking, see Nancy Polikoff, Beyond (Straight and Gay) Marriage (2007) (explaining how many of the family rights and benefits currently understood as linked to marriage could be given to all kinds of families, marital and nonmarital);
119. Laura T. Kessler, Transgressive Caregiving, 33 Fla. St. U. L. Rev. 1 (2005) (arguing that family caregiving can be a practice of political resistance, through a historical analysis of laws regulating the sexuality, reproduction, and parenting of African Americans, sexual minorities, and straight men);
120. and Laura A. Rosenbury, Friends with Benefits?, 106 Mich. L. Rev. 189 (2007) (suggesting that greater legal recognition of friendship within family law could facilitate gender equality).
121. See Catharine A. MacKinnon, Toward a Feminist Theory of the State 193 (1989) ("When the law of privacy restricts intrusions into intimacy, it bars changes in control over that intimacy through law. The existing distribution of power and resources within the private sphere are precisely what the law of privacy exists to protect. . . . [T]he legal concept of privacy can and has shielded the place of . . . marital rape.").
122. See Michelle J. Anderson, Marital Immunity, Intimate Relationships, and Improper References: A New Law on Sexual Offenses by Intimates, 54 Hastings L.J. 1465, 1470 (2003) (asserting that twenty-six states retain marital immunity in one form or another). Anderson concludes, "The law in more than half the states today makes it harder to convict men of sexual offenses committed against their wives." Id. at 1472-73.
123. Id. at 1490.
124. For a thoughtful exploration of these issues in the context of statutory rape prosecutions, see Kay L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 Emory L.J. 691 (2006).
125. See id.; see also Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. Ill. L. Rev. 1147 (arguing for a "Spartan presumption" against family ties benefits in the criminal justice system).
126. Marc Spindelman makes this point forcefully: What is to happen when . . . same-sex relationships receive protections not because they are like marital relations, but because that is what they are? The expectation is that when they attempt to obtain legal redress for what they've endured, survivors of same-sex sex abuse in marriage will find that to the old obstacles they faced - the social, hence legal, nonexistence of their injuries - a new one has been added. As married women who are sexually injured have struggled against heteronormativity's male dominance within marriage, so, too, lesbians and gay men now will. To overcome it, they must upend it in the form Goodridge gives it: the full, load-bearing weight of the putative goodness of marriage itself, seen and understood as Goodridge sees and understands it, the cornerstone of civil society and social stability. If so, how much sexual violence will need to be proved to have happened before that wall will budge from its foundations? How much more than in a case of sexual injury caused by a perpetrator who's not married to his victims? Will a single act of rape be enough or will multiple rapes be required? Must rape be accompanied by an "external" display of coercive force, say, a knife, a hammer, or a gun, to counter the idea that sexual violence that takes place in a relationship of gender equals must have been wanted if it took place, because it could otherwise easily have been stopped? Must violence actually be used? How about consented-to, but unwanted, sex, as in, for example, sex given to stave off non-sexual, but physical, domestic abuse? (This happens.) What about sex that takes place when a spouse is in an alcohol or drug-induced stupor or sleep the perpetrator brought about? (This does, too.) How about domestic sexual hectoring that makes home life insufferably hostile? For sex abuse to be seen, must a couple already be on their way out marriage's door? Spindelman, supra note 88, at 1388 (footnotes omitted).
127. See generally Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 Cal. L. Rev. 1647 (2005).
128. Elizabeth Warren, Families Alone: The Changing Economics of Rearing Children, 58 Okla. L. Rev. 551, 552 (2005) (emphasis omitted). Elsewhere, Warren elaborates: A family with children is now seventy-five percent more likely to be late on credit card payments than a family with no children. The number of car repossessions has doubled in just five years. Home mortgage foreclosures have more than tripled in less than twenty-five years. Families with children are now more likely than anyone else to lose the roof over their heads. Economists estimate that for every family that officially declares bankruptcy, there are seven more whose debt loads suggest that they should file for bankruptcy - if only they were more savvy about financial matters.
129. Elizabeth Warren, The Growing Threat to Middle Class Families, 69 Brook. L. Rev. 401, 404 (2004).
130. See Melissa B. Jacoby & Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative Account of Medical-Related Financial Distress, 100 Nw. U. L. Rev. 535 (2006).
131. Warren writes, Before Congress chopped away at access to the bankruptcy courts in 2005, the bankruptcy filing rate was on a steep climb, showing little let up. By the early 2000s, more people filed for bankruptcy each year than suffered a heart attack. More filed bankruptcy than were diagnosed with cancer. More filed bankruptcy than graduated from college. And, in an era when traditionalists decry the demise of the institution of marriage, Americans filed more petitions for bankruptcy than for divorce. Heart attacks, cancer, college graduations, divorce: these are markers in the lives of nearly every American family. And yet, most Americans have more friends and coworkers who have gone through bankruptcy than any one of these other life events. Elizabeth Warren, A New Conversation About the Middle Class, 44 Harv. J. on Legis. 119, 120 (2007).
132. For a thoughtful review of the structural and cultural causes of overindebtedness, see Jean Braucher, Theories of Overindebtedness: Interaction of Structure and Culture, 7 Theoretical Inquiries L. 323 (2006).
133. See also Melissa B. Jacoby, Home Ownership Risk Beyond a Subprime Crisis: The Role of Delinquency Management, 76 Fordham L. Rev. 2261 (2008).
134. For a more detailed version of this argument, see Harris, supra note 90, at 1550-54.
135. See, e.g., Richard Briffault, Our Localism: Part II - Localism and Legal Theory, 90 Colum. L. Rev. 346, 440-45 (1990).
136. See generally Audrey G. McFarlane, The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power, 8 U. Pa. J. Const. L. 1 (2006).
137. See id. at 24-25.
138. See generally Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 Va. L. Rev. (forthcoming Apr. 2008).
139. This is the argument of Nancy Polikoff's book. See generally Polikoff, supra note 94.
140. See generally Fineman, supra note 73; Katherine M. Franke, Longing for Loving, 76 Fordham L. Rev. 2685 (2008).
141. Chai Feldblum, Dir., Fed. Legislation Clinic and Professor, Georgetown Univ. Law Ctr., Address at the Williams Institute, UCLA School of Law Conference: Equality and Beyond: Envisioning the Future of LGBT Rights (Feb. 22, 2008).