Regulating at the Margins: Non-Traditional Kinship and the Legal Regulation of Intimate and Family Life

Abstract

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection - same-sex relationships, domestic partnerships, de facto parenthood, and non-sexual procreation - the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, that is, the law can be aspirational in a way that the Constitution would ordinarily prohibit, and can attempt to channel all of us in ways that satisfy its normative ideals. This Article refers to this form of channeling or control as “back door” regulation, and maintains that by regulating at the margins, the law attempts to regulate everyone. In addition to offering a new theory of the family and its legal regulation, this Article uses that theory to enrich constitutional challenges to laws, like exclusionary marriage regimes, that selectively burden non-traditional intimacy and practices. Most broadly, it invites readers to consider just how far the law reaches when it regulates as well as just how interconnected to one another the law’s regulation (and discrimination) makes us.