Law Commons^™

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more …

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Faculty Scholarship

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

A substantive due process analysis required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or …

Staging The Family, Clare Huntington

Faculty Scholarship

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to …

Why Marriage?, Suzanne B. Goldberg

Faculty Scholarship

In a well-known New Yorker cartoon, a man and a woman sit together on a couch, clearly in the midst of a conversation about marriage for gay and lesbian couples. “Haven't they suffered enough?” one of them asks. Although the cartoon characters jest, the question of why gay people are fighting so hard for the right to marry is a serious one. After all, marriage rates have been dropping steadily in the United States and in much of the world, and divorce rates remain high. Why, then, are lesbians and gay men fighting so hard to join an institution that …