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Abstract:
This Article focuses on the relationship between criminal law and family law in the regulation of marriage, sex, and intimate life. In doing so, it accomplishes two things. First, it challenges an ingrained narrative that argues that until quite recently, the home and family were impervious to criminal intervention. This Article reveals that, in fact, criminal law, working in tandem with family law, has long played an important role in the legal construction of intimate life. Additionally, the Article argues that we have overlooked criminal law and family law's cooperative role in organizing intimate life to our detriment. Historically, criminal law and family law have worked in tandem to produce a binary view of intimate life that categorizes intimate acts and choices as either legitimate marital behavior or illegitimate criminal behavior. More recently, however, cases like Eisenstadt v. Baird and Lawrence v. Texas appear to reorganize sex in a more continuous fashion. In these cases, I argue, the traditional marriage-crime binary is disrupted in favor of a continuum where marriage and crime remain fixed as outer extremes framing an interstitial space where intimate acts and choices are neither valorized as marital behavior nor vilified as criminal behavior.

This zone where sex exists outside of marriage and crime is one of incredible potential and promise. However, as this Article makes clear, this potential has been largely unrealized. Because we have been inattentive to the relationship between criminal law and family law, it has operated under our radar and the binary that it produces has become the ingrained and reflexive way for us to understand, organize, and regulate sex. When faced with the prospect of disrupting this binary in favor of a zone where sex is not regulated by criminal law or family law, we reflexively revert back to what we have known and attempt to interpret this new space through our binary lens. As such, we have bypassed an important opportunity to theorize and work towards a new understanding of sex outside of law.

marriage, crime, sex, sexuality, intimacy, privacy, Lawrence

Abstract:
On May 15, 2008, the California Supreme Court handed down its much-anticipated decision in In re Marriage Cases. In the weeks and months that have followed this historic announcement, most commentators have focused on the decision's role in extending marriage rights to same-sex couples, and on the denomination of gays and lesbians as a suspect class, entitled to the most rigorous constitutional review. In this Remark, I argue that the importance of In re Marriage Cases goes beyond these two significant accomplishments. Although the decision has been lauded as introducing same-sex marriage to California, it also permits the state, in the name of family equality, to eliminate the marriage label in favor of another status that would apply equally to same-sex and opposite-sex couples. In so doing, the decision provides a means of circumventing a pending ballot initiative in California, which would undermine the decision's force by amending the California Constitution to preclude same-sex marriage. Moreover, in making clear the constitutional commitment to family equality the Court's decision invites us to confront important questions about marriage's role in securing equal rights and the state's role in ensuring equality in intimate life.

Abstract:
On November 4, 2008, 52% of Californians voted for Proposition 8, a ballot initiative amending the state constitution to eliminate same-sex marriage rights. In the weeks and months since the election, there have been many explanations for Proposition 8’s success, including the impact of Mormon money and minority homophobia. What has been neglected in the discussion is some analysis of the way in which the Yes on 8 campaign reframed the debate over same-sex marriage from an anti-discrimination/equal rights discourse to one that emphasized the threat of state imposition on individual rights, including parental rights. Revealing the way in which the campaign focused on the threat of state interference with parental rights offers a more nuanced account of Proposition 8’s success. It also says much about the legal and social construction of the family and our understanding of the relationship between parents and the state in ensuring the well-being of children. By tapping into embedded cultural and legal tropes about the family and about the relationship between parents and the state, the campaign also can be understood as a manifestation of family law’s characterizations of the family and the state.

Proposition 8, gay marriage, same-sex marriage, California, family law, parental rights, individual rights, marriage rights

Abstract:
Recent efforts to reconcile family law theory and doctrine with the lived experiences of families have focused narrowly on expanding the definition of the legal family to accommodate those in non-traditional family arrangements. By contrast, scant attention has been paid to the disjunction between law's understanding of caregiving and how families actually function in providing care. Law understands caregiving to be the work of parents; accordingly, it creates two caregiving extremes - one is either a parent, with the rights and responsibilities of that status, or one is a legal stranger without any entitlements. In focusing on these two poles, law disregards the caregiving continuum that exists between them. This Article explores this interpolar space and the non-parental caregivers who occupy it. Intuitively, we recognize that there are caregivers who are neither parents, nor strangers; and empirical and sociological evidence makes clear that parents do not provide care autonomously, but rather, rely on networks of non-parental caregivers. Indeed, in other doctrinal areas, like sentencing and public assistance, law acknowledges these caregiving networks explicitly. This Article examines three theoretical approaches for expanding the legal construction of caregiving to accommodate the way in which parents rely on caregiving networks comprised of non-parental caregivers. Recognizing these networks, it further argues, would help reconcile family law with the reality of family life, while advancing family law's stated interest in enabling and facilitating caregiving within families.

family, caregivers, caregiving, parental rights, legal recognition