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Articles 31 - 49 of 49
Full-Text Articles in Law
What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain
What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain
Faculty Scholarship
Why is sex equality so hard to achieve? Social cooperation between women and men in various domains of life is assumed to be a fundamental and necessary building block of society, but proves hard to secure on terms of equality. One answer is that feminist quests for equality in private and public life are a form of misguided social engineering that ignores natural sex difference. This chapter examines arguments that nature and culture constrain feminist law reform. Appeals to nature argue that brain science and evolutionary psychology find salient differences between women and men, limiting what social engineering can achieve …
Marriage Pluralism In The United States: On Civil And Religious Jurisdiction And The Demands Of Equal Citizenship, Linda C. Mcclain
Marriage Pluralism In The United States: On Civil And Religious Jurisdiction And The Demands Of Equal Citizenship, Linda C. Mcclain
Faculty Scholarship
“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law …
A House Divided: The Invisibility Of The Multiracial Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi
A House Divided: The Invisibility Of The Multiracial Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi
Faculty Scholarship
This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial. This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, …
Red Versus Blue (And Purple) States In The Same-Sex Marriage Debate: From Values Polarization To Common Ground?, Linda C. Mcclain
Red Versus Blue (And Purple) States In The Same-Sex Marriage Debate: From Values Polarization To Common Ground?, Linda C. Mcclain
Faculty Scholarship
What is the role of courts in circumstances of "values polarization"? The framing of this question brings to mind, but differs from, some familiar inquiries about the judicial role in circumstances of conscientious moral disagreement or value pluralism and debates about liberty, morality, and community. Using the conflict over whether civil marriage should extend to same-sex couples as an example, I contrast two recent analyses of values polarization and its implications for finding agreement, Ronald Dworkin’s book, Is Democracy Possible Here?, and June Carbone and Naomi Cahn's project, Red Families v. Blue Families. Dworkin's strategy is to identify shared principles …
A Beautiful Lie: Exploring Rhinelander V. Rhinelander As A Formative Lesson On Race, Identity, Marriage, And Family, Angela Onwuachi-Willig
A Beautiful Lie: Exploring Rhinelander V. Rhinelander As A Formative Lesson On Race, Identity, Marriage, And Family, Angela Onwuachi-Willig
Faculty Scholarship
This essay explores the past and present social meanings of what occurred during a 1920s New York trial court case, Rhinelander v. Rhinelander. Rhinelander involved a claim by Leonard Kip Rhinelander, a white socialite, who filed for annulment of his marriage to Alice Beatrice Jones, a woman of racially ambiguous heritage. Leonard claimed that Alice committed fraud that went to the essence of their marriage by failing to inform him that she was of "colored" blood. According to legend, Leonard and Alice were madly in love, and Leonard filed the lawsuit only because of his father, who refused to accept …
There’S Just One Hitch, Will Smith: Examining Title Vii, Race, Casting, And Discrimination On The Fortieth Anniversary Of Loving V. Virginia, Angela Onwuachi-Willig
There’S Just One Hitch, Will Smith: Examining Title Vii, Race, Casting, And Discrimination On The Fortieth Anniversary Of Loving V. Virginia, Angela Onwuachi-Willig
Faculty Scholarship
In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to …
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 …
The 'Male Problematic' And The Problems Of Family Law: A Response To Don Browning's 'Critical Familism', Linda C. Mcclain
The 'Male Problematic' And The Problems Of Family Law: A Response To Don Browning's 'Critical Familism', Linda C. Mcclain
Faculty Scholarship
This essay explores the relationship between the male problematic and the problems of family law. The problem of fatherhood, or what religion scholar and marriage movement leader Don Browning calls the male problematic, is a central concern of that movement. The premise is that marriage addresses a core societal challenge - binding men to the mothers of the children they foster and securing men's paternal investment in those children. The essay responds to Browning's review (in 56 Emory Law Journal 1383 (2007)) of my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006), in which …
What Place For Marriage (E)Quality In Marriage Promotion?, Linda C. Mcclain
What Place For Marriage (E)Quality In Marriage Promotion?, Linda C. Mcclain
Faculty Scholarship
The place of marriage in a just and fair constitutional democracy reverberates as one of the most challenging questions posed in debates over family law and policy. Should government properly support and promote marriage, defined as the union of one man and one woman, as the proxy for the form of family best able to undergird our polity by allowing realization of the goods associated with family life and carrying out the important functions society assigns to families? Or is marriage's privileged place undeserved because it is an imperfect and inadequate proxy for these purposes. This article argues that, although …
Undercover Other, Angela Onwuachi-Willig
Undercover Other, Angela Onwuachi-Willig
Faculty Scholarship
This Essay argues in favor of legally recognizing same-sex marriages by exploring the similarities in passing between members of same-sex marriages/relationships and interracial marriages/relationships. Specifically, this Essay unpacks the claim that the ability of gays and lesbians to pass as heterosexual distinguishes the ban on same-sex marriages from former bans on interracial marriages. Part I of this Essay first describes policy-based critiques of a Loving-based argument for legalizing same-sex marriage, or as one scholar has coined, of playing the Loving card by analogizing the racism that motivated anti-miscegenation statues that the Supreme Court struck down in 1967 to the anti-gay …
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
Faculty Scholarship
The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …
Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain
Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain
Faculty Scholarship
This essay offers some ABCs for a framework for sex education informed by feminist and liberal principles, in contrast to the conservative sexual economy underlying abstinence-only sex education. It embraces affirmative governmental responsibility to foster sexual and reproductive agency and responsibility and stresses the aims of capacity, equality, and responsibility. An adequate program of sex education should also address how gender role expectations and stereotypes may stand in the way of adolescents developing capacities for responsible self-government and acquiring a sense of personal agency with respect to intimacy and sexuality. The Essay then evaluates such a feminist project in light …
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
Faculty Scholarship
Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …
The Return Of The Ring: Welfare Reform’S Marriage Cure As The Revival Of Post-Bellum Control, Angela Onwuachi-Willig
The Return Of The Ring: Welfare Reform’S Marriage Cure As The Revival Of Post-Bellum Control, Angela Onwuachi-Willig
Faculty Scholarship
In 1996, the United States Congress began its imposition of a marital solution to poverty when it enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"). Nearly ten years later, Congress has strengthened its commitment to marriage as a cure for welfare dependency with proposals such as the Personal Responsibility, Work, and Family Promotion Act of 2005. If passed, this bill would provide 1.5 billion dollars for pro-marriage programs and require each state to explain how its welfare program will encourage marriage for single mothers who receive public aid. With these proposals, Congress has continued to construct poverty as …
The Practice Of Marriage, Katharine B. Silbaugh
The Practice Of Marriage, Katharine B. Silbaugh
Faculty Scholarship
Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, the government's gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael …
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).
The Place Of Marriage In Democracy's Formative Project, Linda C. Mcclain
The Place Of Marriage In Democracy's Formative Project, Linda C. Mcclain
Faculty Scholarship
Shoring up the institution of marriage is a theme in the "mar riage movement" and in recent legislative debates over welfare reform and family policy. One common premise is that strength ening marriage and renewing a "marriage culture" is vital to national health and that the best way for government, at all lev els, to strengthen and support families and to foster the well being of children is to promote and support marriage (Marriage Movement; Bush, 2002) Calls to renew civil society identify marital, two-parent families as foremost among the seedbeds of civic virtue upon which our Nation depends for …
Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain
Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain
Faculty Scholarship
If liberal conceptions of privacy survive appropriately vigorous feminist critique and re-emerge in beneficially reconstructed forms, then why haven't more feminists gotten the message and embraced, rather than spurned, such privacy? If liberal privacy survives feminist critique, does it face an even more serious threat if contemporary society has both diminishing expectations of and taste for privacy? Does the transformation of the very notion of "private life," due in part to the rise of such new technologies as the Internet and its seemingly endless possibilities for making oneself accessible to others and gaining access to others, suggest the need for …
Marriage Contracts And The Family Economy, Katharine B. Silbaugh
Marriage Contracts And The Family Economy, Katharine B. Silbaugh
Faculty Scholarship
One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …