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Is There A Way Forward In The 'War Over The Family'?, Linda C. Mcclain
Is There A Way Forward In The 'War Over The Family'?, Linda C. Mcclain
Faculty Scholarship
When Judge Posner, in Baskin v. Bogan, expressed incredulity -- given actual demographic trends in family formation -- that state marriage laws excluding same-sex couples furthered interests in “channeling” procreative sex and addressing accidental pregnancy, he brought together two conversations about marriage, family law, and family life that too often proceed independently. In the first, same-sex couples challenging marriage laws and the courts who rule in their favor emphasize the high stakes of exclusion by characterizing marriage as an incomparable institution and a signal that one’s intimate commitment is worthy of equal respect and dignity. To be left out of …
Children's Health In A Legal Framework, Elizabeth S. Scott, Clare Huntington
Children's Health In A Legal Framework, Elizabeth S. Scott, Clare Huntington
Faculty Scholarship
The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …
From Contract To Status: Collaboration And The Evolution Of Novel Family Relationships, Elizabeth S. Scott, Robert E. Scott
From Contract To Status: Collaboration And The Evolution Of Novel Family Relationships, Elizabeth S. Scott, Robert E. Scott
Faculty Scholarship
The past decade has witnessed dramatic changes in public atti- tudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships – cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists – might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social-welfare criteria for …
Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain
Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain
Faculty Scholarship
This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, …
Marriage Pluralism, Family Law Jurisdiction, And Sex Equality In The United States, Linda C. Mcclain
Marriage Pluralism, Family Law Jurisdiction, And Sex Equality In The United States, Linda C. Mcclain
Faculty Scholarship
In many regions of the world, rights guaranteed under the civil law, including rights to gender equality within marriage and rights in the distribution of family property and child custody upon divorce, are in conflict with the principles of religious law. Women's rights issues are often at the heart of these tensions, which present pressing challenges for theorists, lawyers, and policymakers. This anthology brings together leading scholars and activists doing innovative work in Jewish law, Muslim law, Christian law, and African customary law. Using examples drawn from a variety of nations and religions, they interrogate the utility of recent theoretical …
Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain
Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain
Faculty Scholarship
The UN Convention on the Rights of the Child (CRC) recently began its third decade. Why has the United States still not ratified the CRC, celebrated as the most widely ratified international human rights treaty in history? Once again, this question is on the table: Congressional resolutions that President Obama should not transmit the CRC to the Senate for advice and consent rapidly followed intimations that the Obama Administration had some qualms about the U.S. keeping company only with Somalia in not ratifying it. Some scholars contend that enlisting the unique resources of religions would help to ground a culture …
The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain
The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain
Faculty Scholarship
This chapter examines how the vision of the natural family articulated by several prominent conservativereligious organizations in the United States shapes their opposition to certain human rights instruments. TheUnited Nations' 1989 Convention on the Rights of the Child seems to reflect an advance in internationalhuman rights formulations and to have generated a high degree of formal commitment by governments, as evidenced by its quick and virtually universal ratification. However, the United States stands nearly alone innot having ratified the Convention, and the religious groups examined in this chapter strenuously urge that it should not do so, lest it undermine the …
Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh
Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh
Faculty Scholarship
In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead …
Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson
Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson
Faculty Scholarship
Three decades ago, it would have been inconceivable for people to discuss seriously the idea of withdrawing the legal and financial support society gives to marriage. In recent years, however, thinkers and policymakers have given more serious thought to the possibility of eliminating marriage as a category entitled to the State’s support. An important consideration in this debate is whether keeping or eliminating the State’s support of marriage matters to the well-being of children. A wealth of studies contemplating modern family forms now exists, many of which invariably stack newer family structures up against the more traditional nuclear family. Until …
Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain
Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain
Faculty Scholarship
This article takes up the question: Should family law and policy move beyond marriage? It assesses a spectrum of answers to that question. Rejecting proposals, on the one hand, to shore up traditional marriage, and, on the other, to abolish marriage, it argues that family law and policy should not move wholly beyond marriage, but should support marriage in a way that better fosters greater equality within and among families. The article is part of a symposium on "Marriage, Families, and Democracy," published in 32 Hofstra Law Review 23-421 (2003).
Marriage As A Trade: Bridging The Private/Private Distinction, Martha M. Ertman
Marriage As A Trade: Bridging The Private/Private Distinction, Martha M. Ertman
Faculty Scholarship
No abstract provided.
Adoption, Identity, And The Constitution: The Case For Opening Closed Records, Naomi R. Cahn, Jana B. Singer
Adoption, Identity, And The Constitution: The Case For Opening Closed Records, Naomi R. Cahn, Jana B. Singer
Faculty Scholarship
No abstract provided.
'Irresponsible' Reproduction, Linda C. Mcclain
'Irresponsible' Reproduction, Linda C. Mcclain
Faculty Scholarship
In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …