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Abstract:
This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change furthering distributive justice and securing welfare rights. The paper offers three lines of critique of Hirschl's thesis. First, with respect to American constitutional theorists and jurists, we concede for the sake of argument that courts have not brought about progressive economic change, but question whether liberals and progressives in American constitutional law ever harbored any hollow hopes that courts would do so. Second, we concede that some American liberals and progressives have viewed the American Constitution as securing welfare rights, but we contend that they have conceived these rights, not as judicially enforceable, but as what Larry Sager calls judicially underenforced norms. These American liberals and progressives have looked to legislatures, executives, and citizens generally more fully to enforce these constitutional norms by taking the Constitution seriously outside the courts. Hirschl's court-centered analysis overlooks such discourse. Third, we suggest that Hirschl defines progressive change too narrowly, as concerned with economic change, distributive justice, and welfare rights. If he defined progressive change more broadly, to include challenges to traditional norms and institutions, including gender norms along with family law, we might find that constitutionalization and judicial review in the four countries he analyzes have been instrumental in bringing about some progressive social change, such as gains in gender equality. We support this argument by looking at constitutionalization in Canada and South Africa.

judicial review, constitutionalism, progressive, sex equality, social change

Abstract:
This Article looks at the coming-of-age stories in two recent films, Bend It Like Beckham and Real Women Have Curves, as an avenue to explore the question of constructing identity. Both films, arising out of the filmmakers' experiences, aim to offer representations of particular individuals in minority groups that challenge dominant representations. They also offer aspirational visions of how such individuals might find a way to construct a hybrid identity that allows them to negotiate their place within the various groups that claim them and within the broader society. How, the article asks, do the heroines in these films find ways to construct their identity in context, and what sort of cultural, social, and institutional arrangements facilitate, on the one hand, and hinder, on the other, their capacity to do so? Cultural norms and practices concerning women are often at the core of what a particular community deems to be essential components of its culture that must be transmitted from one generation to the next. Thus, debates about women and culture and about cultural assimilation versus cultural survival at their core implicate children and efforts by families and communities to socialize children. The article title also intentionally refers to a second meaning of coming-of-age: coming to helpful understandings of how best to understand questions regarding the interplay between identity and culture and the dynamic between individual and group identity. Studying the coming-of-age stories of adolescents, on the threshold of adulthood, offers a chance to see how they construct a self from, as philosopher K. Anthony Appiah has put it, the "tool kit of options made available by our culture and society." The Article's approach to identity recognizes the tension between freedom and determination and the interplay of choice and constraint in the construction of identity. Another useful orienting idea is that "culture" is not monolithic, homogeneous, and static, but contested, fluid, and in a continual process of reinterpretation.

multicultural, identity, privacy, culture, adolescents, films, narratives, immigrants

Abstract:
This article looks at a topic that has received little attention in the legal literature: constitution making by families. Of what interest is it to constitutional law and family law, and to those interested in the state of the family, that families undertake to draft - and are urged by assorted experts on the family to draft - family constitutions (by analogy to the U.S. constitution) and family mission statements (by analogy to corporate mission statements)? This article contends that this reported trend is a fruitful topic of inquiry, since it bears on important questions about the dynamics of family life and family governance, as well as on how families (as associations) fit within the constitutional order. One reported impetus for families drafting such documents is a perception that an important relationship between families and other institutions of civil society and government is askew: families must define their own ends and values because these other institutions are no longer serving as generators or supporters of these values. The article examines Stephen Covey's influential book, "The Seven Habits of Highly Effective Families," as well as literature about various types of families drafting such documents (e.g., families struggling with work/family conflict, parents concerned about moral education, nontraditional families, religious families, wealthy families, and family businesses). It identifies several common arguments about why families should draft such documents. It suggests some tensions in the literature about the process of family self-constitution, which relate to two contrasting models of family - the natural and the constructivist family, and to contrasting models of family self-government - hierarchical and democratic.

mission statements, family constitutions, constitution-making, family life, work/family conflict, religion, family business

Abstract:
This Article revisits a significant idea at the core of contemporary debates in family law: the channelling function of family law. This idea is that a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family law scholar Carl Schneider helpfully invited attention to this familiar idea in an essay published fifteen years ago. Challenges to the conventional sequence (expressed in the childhood rhyme) of love-marriage-baby carriage posed by changing social practices, rights claims made by various groups within society that lead to legislative change and judicial rulings, by technological developments in the area of reproduction, and by changes in family law toward a more functional definition of family changes provide a valuable opportunity to revisit Schneider's notion of the channelling function of family law and, in particular, how it relates to other important functions of family law. As this sequence of love-marriage-baby carriage is being altered and challenged in perhaps unprecedented ways, the question arises whether the core of ideas that Schneider identifies with the social institutions of marriage and parenthood still retains force, or whether the core is being redefined. At the heart of many contemporary debates about the state of the family — and family law — is the question of how to assess challenges to this expected sequence of love, marriage, and the baby carriage. The debate over same-sex marriage visibly raises this issue, as does debate over the question, Who is a legal parent?

The Article begins with several examples of current social practices that scramble the sequence of love, marriage, and baby carriage, and considers how such practices both recognize and resist the conventional sequence. It then illustrates how the notion of marriage and parenthood as social institutions and the channelling function feature in several recent judicial opinions addressing challenges to state marriage laws brought by same-sex couples or defining the boundaries of legal parenthood. It points out parallels between these judicial opinions and arguments made in public debates over marriage about the channelling function and the role of marriage in ordering — or managing — heterosexuality. It also highlights how the various functions of family law are in evident tension in some of these opinions. The Article concludes with several reflections about the continuing relevance of the concept of the channelling function in light of challenges to the conventional sequence of love, marriage, and the baby carriage.

family law, social institutions, channelling, marriage, parenthood, same-sex marriage, heterosexuality, social control

Abstract:
This article focuses on the place of associations within John Rawls's political liberalism and in feminist liberalism. It revisits crucial components of political liberalism in light of feminist criticisms, such as those of Susan Moller Okin and Martha Nussbaum, that political liberalism's protection of associational life hinders women's free and equal citizenship. Offering a different reading of Rawls, it finds greater potential to draw on political liberalism to support such citizenship. It then brings liberal feminist ideas about the place of associations into dialogue with recent feminist work on gender, rights, and culture calling for models of rights within culture rather than rights versus culture.

Rawls, feminism, associations, multiculturalism, liberalism, gender, culture

Abstract:
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 and procreation; (4) marriage is "about children," not adult love; and (5) traditional marriage transmits values crucial to democracy. This article canvasses and critically evaluates a sampling of these arguments, as they have featured in Congressional hearings and debates about the FMPA. It asks whether FMPA supporters can reconcile their stance about the imperative of protecting the gender complementarity of traditional marriage with the transformation of marriage brought about by family law reforms and contemporary Equal Protection jurisprudence. It argues that FMPA supporters continually and uncritically appeal to gender complementarity as a justification for preserving "traditional marriage" without addressing marriage's evolution and whether marriage's definition should continue to evolve.

marriage, same-sex marriage, gender roles, federal marriage amendment, gender complementarity, religion

Abstract:
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 of the sexuality critique of legal feminism - a line of criticism leveled by feminist and post-feminist scholars against feminist legal theorists' work on sexuality. The sexuality critique charges legal feminism with conflating women's sexuality with their subordination and abdicating to other fields the task of developing a positive account of sexuality. The Essay considers some writings by Janet Halley and the anthology, Intimacy (edited by Lauren Berlant). A striking point of convergence and divergence between conservative and critical discussion of sexuality concerns how the institution of marriage channels men and women into the service of orderly social reproduction: social conservatives stress the dangers of not channelling heterosexuality, while critical perspectives elaborate the human toll exacted by such channeling. The Essay contends that a liberal feminist approach to sex education resists both of these grim visions.

sex education, feminism, liberalism, Queer Theory, intimacy, sexuality, marriage, adolescents, adultery

Abstract:
Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting citizens to action is, by now, a familiar idea. Offering as examples dissents by Justices Souter, Ginsburg, and Scalia, Guinier looks at the catalytic role of dissenting opinions. The Essay relates this current interest in the role of dissent - and the role of biography in spurring dissents - to earlier legal scholarship about the importance of empathy in judicial decision making and as a spur to social change. It considers the emphasis on life experience and the capacity for empathy in President Obama's statements about appropriate judicial qualifications. It concludes by contrasting Guinier's project with other perspectives on the institutional capacity of the Supreme Court to spur social transformation better to realize constitutional goals and values.

Supreme Court, dissent, empathy, social change, justice, demosprudence

Abstract:
This chapter examines how the vision of the natural family articulated by several prominent conservative religious organizations in the United States shapes their opposition to certain human rights instruments. The United Nations' 1989 Convention on the Rights of the Child seems to reflect an advance in international human 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 in not having ratified the Convention, and the religious groups examined in this chapter strenuously urge that it should not do so, lest it undermine the natural family, motherhood, and parental and national sovereignty. On similar grounds, they support the United States's continuing failure to ratify the Convention on the Elimination of All Forms of Discrimination against Women. Strikingly, these groups invoke the UN Declaration of Human Right's provision that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State to critique the Convention and CEDAW as anti-family and a threat to the natural family.

This opposition is troubling if, as some have argued, one way to resolve the paradox that impressive declarations on paper of human rights coexist with gross violation in actual societies of human rights is to enlist the unique resources of religion to support a human rights culture. This chapter examines opposition expressed by Concerned Women for America, Family Research Council, the Howard Center for Family, Religion & Society, and the affiliated World Congress of Families. It also analyzes the recent document, The Natural Family: A Manifesto, co-authored by Dr. Allan Carlson of the Howard Center and the World Congress of Families, and Paul T. Mero, of the Sutherland Institute. The Manifesto is intended to provide a philosophical foundation for pro family efforts. The chapter concludes with some reflections on this defense of the natural family. It critically evaluates how such groups' opposition to these human rights instruments entails a conception of the proper place of men and women within families and society and a conviction that gender equality undermines families.

family, evolutionary psychology, marriage movement, responsible fatherhood, feminist theory, religion, marriage, sex equality

Abstract:
Families are at the center of a number of important and contentious public debates in the United States, as is the common impulse to link the state of families to the state of the nation. Social movements and politicians call for strengthening families as seedbeds of virtue and for promoting marriage. Efforts by same-sex couples to gain access to civil marriage trigger state and federal efforts to defend traditional marriage, even as some states have introduced new legal forms of family. Despite this keen interest in families, the place of families in our constitutional and political order has received insufficient attention.

The book's thesis is that family life has a relationship to political life: families have a place in a formative project of developing persons who are capable of responsible personal and democratic self-government. Government, families, and other institutions of civil society all play a role. Society depends upon such a formative process, but sharp points of disagreement arise about its contours. The idea of an important link between family self-government and democratic self-government has a long history, but that history includes state-sanctioned gender inequality. My approach develops this connection in a way that embraces equality, defends rights as facilitating responsibility, and supports families while respecting women's - and men's - capacities for self-government. The book carries forward the work begun by liberal feminist political theorist Susan Moller Okin, whose influential book, Justice, Gender, and the Family (1989), pointed out that family and gender were neglected topics in political theory and asked how families could be schools for citizenship - or seedbeds of civic virtue - if they were frequently sites of male domination and an unjust division of labor. My book develops a framework that synthesizes liberal and feminist political and legal theory, and also finds room for civic republican ideas of government's formative responsibilities. It also critically engages with the claims of social movements centrally involved in calls to "shore up" the family, such as the civil society movement and the marriage movement.

This liberal feminist framework for thinking about the place of families has three orienting ideas: fostering capacity of persons for democratic and personal self-government; fostering equality within and among families; and fostering responsibility of individuals, rather than government, to make decisions about intimate association, forming families, reproducing, and parenting. I apply this framework to a cluster of contested issues of family law and policy: how best to support the civic role of families; welfare policy and the proper balance between personal and public responsibility for the care and support of children; governmental promotion of healthy marriage; the recognition of same-sex marriage; the extension of family rights and responsibilities to nonmarital families; the protection of constitutional rights to reproductive freedom; and sex education.

Chapters of the book:

Introduction
1. The Place of Families and Government in a Formative Project
2. Families as Seedbeds of Civic Virtue?
3. Care, Families, and Self-Government
4. Marriage Promotion, Marriage (E)quality, and Welfare Reform
5. Recognizing Same-Sex Marriage
6. Beyond Marriage?
7. Rights, (Ir)responsibility, and Reproduction
8. Teaching Sexual and Reproductive Responsibility
Epilogue

family, marriage, family law and policy, equality, sex roles, civics, civil society, feminist theory, liberal theory, welfare

Abstract:
Citizenship is the common language for expressing aspirations to democratic and egalitarian ideals of inclusion, participation, and civic membership. However, there continues to be a significant gap between formal commitments to gender equality and equal citizenship – in the laws and constitutions of many countries as well as in international human rights documents − and the reality of women’s lives. This volume presents a collection of original works that examine this persisting inequality through the lens of citizenship. Distinguished scholars in law, political science, and women’s studies investigate the many dimensions of women’s equal citizenship, including constitutional citizenship, democratic citizenship, social citizenship, sexual and reproductive citizenship, and global citizenship. Gender Equality takes stock of the progress toward – and remaining impediments to – securing equal citizenship for women, develops strategies for pursuing that goal, and identifies new questions that will shape further inquiries.

The downloaded paper consists of the book's abstract and table of contents.

gender equality, constitutional citizenship,m political citizenship, social citizenship, sexual and reproductive citizenship, global citizenship, gender

Abstract:
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 about human dignity that will make a national debate possible; Carbone and Cahn instead point to two diverging patterns, or models, of family life in red and blue states and two differing regimes of family law – and family values, and suggest how federalism might help in reducing polarization. As a crucible through which to test these two interpretive projects and their view of the judicial role, I discuss the recent opinion of the Supreme Court of California, In re Marriage Cases (2008), in which the court ruled that California's constitution required opening up civil marriage to same-sex couples. I contrast the ongoing controversy in California over civil marriage with the pathways that Oregon and Washington have taken on the issue of marriage equality. I conclude that discussion of values is likely unavoidable in developing and adjudicating family law. I consider whether President Obama's rejection of the red state-blue state dichotomy and his appeal to "values we hold in common as Americans" signal the beginning of the end of values polarization.

Marriage, liberty, courts, values polarization, same-sex marriage, Ronald Dworkin, moral disagreement, dignity, responsibility, family values

Abstract:
This paper assesses the legacy of President Clinton's family policy from the perspective of what it suggests about New Democrat, or Third Way politics, associated with such organizations such as the Democratic Leadership Council (DLC) and the Progressive Policy Institute. In his 1992 campaign, Clinton elaborated a new social contract, or new covenant, of mutual responsibility: government should afford opportunity to people, who, in return, should take responsibility and adhere to such core values as work, family, and personal responsibility. This rhetorical appeal to values was a successful attempt, by Democratic politicians, to attract voters around themes of values and family - such that they were not the domain only of the Republicans. What is the legacy of Clintonism as it bears on linking family values to family policy? How did candidate Clinton's campaign pledges about a New Covenant for families, pairing opportunity and responsibility, translate into family policies during the two terms of Clinton's presidency? To evaluate President Clinton's family policy, and how it drew on these themes, I focus on three significant pieces of legislation that he signed: the Family and Medical Leave Act, the Personal Responsibility and Work Opportunity Reconciliation Act, and the Defense of Marriage Act. Family leave and welfare reform featured prominently in Clinton's New Covenant. By contrast, Clinton did not campaign for the Defense of Marriage Act, and the bill seemed, on one view, to be at odds with the New Covenant's commitment to address discrimination against gay man and lesbians. But Clinton defended his signing of DOMA as consistent with his philosophy. I evaluate the symbolic and practical significance of these three laws. These laws, with their strengths and weaknesses, continue to shape often-contentious public discourse over the place of families, family values, and how best to strengthen families.

Clinton, Clintonism, New Democrat, DLC, family policy, welfare, New Covenant, defense of marriage, same-sex marriage, personal responsibility

Abstract:
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, equality, family, democracy, same-sex marriage, intimate affiliation

Abstract:
Why do families matter? Is it simply because of their role in social reproduction, or does this ignore the personal goods, the benefits and burdens, of intimate life? Does an emphasis on the formative role of families risk treating them merely as serving the state and divert attention from the rights of persons to form families and the rights - and needs - of children to nurturing relationships? What kind of social and economic transformation would be necessary to implement a normative vision of family that supports families, is egalitarian, and respects diversity? What is the best way to rectify women's continuing disproportionate responsibility for house work and care work - enlisting the state or pressuring men? Is an egalitarian vision of family life, in which promoting sex equality within marriage a proper governmental task, consonant with basic liberal principles, or is it a transformative project that ignores human nature and basic sex difference, corrupts family life, and infringes on women's - and men's - religious freedom? This essay responds to those questions, raised by several political scientists and political theorists in a symposium about my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard, 2006).

Abstract:
A central tenet of President George W. Bush's faith-based initiative, launched in 2001, is that the federal government, by entering into more partnerships with religious and community organizations, should put the power of faith to work to solve pressing social problems. Proponents of the initiative have invoked the eighteenth-century French writer Alexis de Tocqueville's famous observations about the American propensity to join various voluntary associations as well as the Catholic principle of subsidiarity. Seven years into the faith-based initiative, challenging questions remain about what, exactly, it means to put faith to work. Such questions deserve attention, given the institutionalization of the initiative at the federal and state level and given that the unfolding presidential campaign for the 2008 election reveals varying degrees of support by both the Republican and the Democratic candidates for continuing the initiative. Questions concerning the expanded use of partnerships with religious organizations by the government are, in a sense, questions about separation of powers - not the conventional tripartite division within government of executive, judiciary, and legislature, but the relationship between governmental power and that of religious organizations. The faith-based initiative invites consideration of the place of religious institutions in society, especially as proponents of the initiative seek to enlist them, as partners with government, to shore up other parts of civil society, such as the family, because of their unique capacity to do so.

This article reflects on the faith-based initiative by using the contrasting images of unleashing and harnessing the power of faith. Unleashing armies of compassion appeals to government setting free the unique power of faith so that, unfettered, faith-based groups may proceed in their own way, so long as they get the results that government wants. By contrast, harnessing connotes utilizing, in the sense of yoking or attaching some mechanism to steer or control. The tension between these images reflects ongoing disagreement about the proper place and scope of such partnerships in our constitutional democracy. This Article contends that unleashing and harnessing both have a role to play in public-private partnerships between government and religious groups, but that the faith-based initiative, as championed and implemented to date, has emphasized unleashing at the expense of harnessing. These contrasting images help to get at whether faith matters primarily as motive, or as method or message. The article raises a series of questions about why faith matters in social-service provisions, drawing on some recent empirical studies. It also examines the place of public values and purposes in public-private partnerships and addresses subsidiarity and issues of institutional design.

Faith-based initiative, public-private partnership, religion, welfare, subsidiarity, civil society, separation of powers, government contracts, de Tocqueville

Abstract:
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 he compares my approach to family law and policy with the critical familism approach to the American family debate developed by Browning and his colleagues in the multiyear Religion, Culture, and Family Project at the University of Chicago. Browning's work has contributed to the underpinnings of the marriage movement, which aims to restore a marriage culture and promote the institution of marriage.

First, Browning contends that The Place of Families misunderstands the idea of the male problematic as an appeal to the domesticating and gatekeeping role of women, rather than to the channelling power of marriage as an institution. However, although Browning and many others in the marriage movement focus on the role of the institution of marriage as encouraging paternal investment, it is no caricature to say that at least some in the marriage movement also invoke the role of women as sexual gatekeepers to lead men to marriage and, thus, to responsible paternal investment. Second, Browning argues that The Place of Families gives inadequate attention to the premoral or nonmoral good of fatherhood and is vulnerable to a sort of indiscriminate acceptance of any and all family forms in the name of family diversity or equality among families. Because Professor Browning views the supposed limits of my approach as illustrative of a broader failing in contemporary family law and family law theory, I identify in The Place of Families versions both of a male problematic and of the goods of family life. I use the example of care, since both my approach and critical familism stress the importance of parental care. Third, I respond to his contention that my commitment to governmental promotion of equality within and among families leads to an indiscriminate acceptance of family diversity and to an approach that is too wary of relying on families and other institutions of civil society (particularly religious institutions) to generate virtues and too ready to employ government for the aggressive promotion - in families - of norms like sex equality.

The essay concludes with some preliminary thoughts on Browning's broader question about whether and how theological accounts of contemporary families and the challenges they face should inform family law and policy.

Marriage, marriage movement, familism, fatherhood, motherhood, masculinity

Abstract:
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 marriage that has already occurred. Invocations of gender complementarity between parents as essential to child well-being also conflict with the growing recognition in family law that children's best interests can be served by gay and lesbian parents. Canada's path toward same-sex marriage suggests that impasse need not be inevitable. In the United States, the impasse stems in part from the problem that same-sex marriage serves as an emblem of everything that threatens marriage.

marriage, same-sex marriage, gay and lesbian parents, best interests of the child

Abstract:
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 family law should more firmly embrace equality among families by supporting a broader array of families, marriage (opened up to same-sex couples) deserves governmental support because it is a social institution that facilitates two significant dimensions of family life: (1) the intergenerational dimension of families, that is, social reproduction, and (2) the dimension of intimate association between adults who form families. However, when government engages in efforts to support and encourage marriage, the political value and constitutional norm of sex equality, as they bear on family life, should guide its efforts. Measured against this requirement, contemporary proposals to promote marriage, made by the social movement known as the marriage movement and by politicians who endorse marriage promotion as a tool of welfare policy, fall short.

Marriage promoters contend that shoring up marriage is vital to social health. I examine the various strands of the social health argument: the appeal to adult happiness, to child well-being, to reducing negative externalities, and to civilizing men. I also address the special concerns that arise when welfare reform is used as a vehicle to promote marriage among low-income members of society. I conclude that, to date, marriage promoters fail to attend to the important relationship between marriage quality and marriage equality. They are ambivalent about the place of sex equality in the recipe for promoting healthy marriage. Governmental efforts to support healthy marriage, including educative efforts, should more firmly embrace the public value and constitutional principle of sex equality. Such a commitment does not impose an impermissible governmental orthodoxy and thwart pluralism.

marriage, welfare, sex equality, social health, marriage movement, governmental regulation, family policy

Abstract:
This essay looks back at the rhetoric of irresponsible reproduction as it figured in the congressional debates of the 1990s about welfare reform, leading to passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). In such debates, proposals to combat rates of nonmarital births and welfare dependency advocated doing so by altering the incentives concerning welfare. The essay examines assumptions about the relationship between the incentive effects of governmental programs and human motivation, agency, and victimization. It contends that the procreation stories told in such public policy discourse are simplistic, reductive, and inadequate, and suggests how feminist conceptions of responsibility and irresponsibility would enrich a public conversation about reproduction and responsibility. The essay notes the prominence in post-PRWORA rhetoric about welfare reform of the idea that governmental efforts to promote responsible fatherhood should be the next phase of implementing the reforms begun by PRWORA.

welfare, reproduction, mothers, fatherhood, personal responsibility

Abstract:
The Article raises some questions for proponents of reviving civil society as a cure for many of our nation's political, civic, and moral ills (whom McClain and Fleming designate as "civil society-revivalists"). How does civil society serve as "seedbeds of virtue" and foster self-government? Have liberal conceptions of the person corroded civil society and undermined self-government? Does the revivalists' focus on the family focus on the right problems? Have gains in equality and liberty caused the decline of civil society? Should we revive civil society or "a civil society"? Would a revitalized civil society support democratic self-government or supplant it? McClain and Fleming largely agree with the revivalists that it would be a good thing to revive civil society, but they raise doubts about whether its revival can reasonably be expected to accomplish what its proponents hope for it, e.g., moral renewal, civic renewal, and strengthening the bonds of citizenship. They suggest that civil society is at least as important for securing what they call "deliberative autonomy" - enabling people to decide how to live their own lives - as for promoting "deliberative democracy" - preparing them for participation in democratic life. Working within the tradition of political liberalism, and guided by key feminist and civic republican commitments, McClain and Fleming also sketch their own views concerning the proper roles and regulation of civil society in our morally pluralistic constitutional democracy.

Abstract:
This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. To date, there has been a great deal of discussion of civil society and proposals for its revival or renewal, but not enough discussion of legal and constitutional implications of such proposals. This symposium seeks to help fill this void. The articles pursue questions such as the following. What role do law and the Constitution play in the constitution of civil society? Does civil society serve as "seedbeds of virtue" - "our foundational sources of competence, character, and citizenship" - and foster self-government? Or is civil society's more vital purpose to serve as a buffer or check against the state? Should government attempt to secure congruence between democratic values and the structure and values of voluntary associations, or would such an effort offend commitments to pluralism and diversity? If it is not possible to establish a clear link between participation in associations, as such, and the inculcation of democratic values, are there some institutions of civil society that are especially valuable for cultivating civic virtue and fostering democratic deliberation?

The family features, for civil society-revivalists, as first and foremost among the seedbeds of virtue. Is the family a seedbed of virtue or a school of inequality and injustice? What forms of regulation of the family are necessary and appropriate? Does the vitality of the family as a seedbed of virtue depend upon one particular form of family (i.e., the heterosexual two-parent, marital family) and should government seek to encourage that family form and discourage others? If business, labor, and economic institutions are within civil society, are they seedbeds of virtue that foster civic health or do current economic practices hinder civic health and put pressures on families, endangering their strength? More generally, how do proponents of renewing civil society view the relationship between systemic inequality (including racism) and civic health? Have civil rights movements and gains in equality and liberty contributed to the decline of civil society and civic virtue? Finally, would a revitalized civil society support democratic self-government or supplant it, and with what implications for federalism and the separation of church and state?