The Sexual Family
Martha Albertson Fineman
Emory University School of Law
FEMINIST AND QUEER LEGAL THEORY: INTIMATE ENCOUNTERS, UNCOMFORTABLE CONVERSATIONS, M.A. Fineman, J. E. Jackson, and A. P. Romero, eds., Ashgate, 2009
Emory Public Law Research Paper No. 09-74
This chapter is in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, M.A. Fineman, J. E. Jackson, and A. P. Romero, Eds. (Ashgate 2009). It addresses the construction of the concept of the sexual family both outside of and inside law. The sexual family is the traditional or nuclear family, a unit with a heterosexual, formally celebrated union at its core. I use the term “sexual” to modify “family” to emphasize that our societal and legal images and expectations of family are tenaciously organized around a sexual affiliation between a man and woman. This is the primary intimate connection. Of course, it reflects the reproductive imperative, but this basic biological fact also has important ideological and legal ramifications. The sexual family is considered the “natural” form for the social and cultural organization of intimacy, its form ordained by divine prescription and perpetuated by opinion polls. The sexual family is an entity entitled to protection - granted “privacy” or immunity from substantial state supervision.
The reflection of the sexual family that is ensconced in law may be a distortion or a mere fragment of social reality, but that legal image constitutes the legal reality and forms the basis for state regulation. Because this legally constructed image expresses a vision of the appropriately constituted family, it defines the normal and designates the deviant. The characterization of some family groupings as deviant legitimates state intervention and the regulation of relationships well beyond what would be socially tolerated if directed at more traditional family forms.
Number of Pages in PDF File: 30
Keywords: family, sexuality, marriage, feminist legal theory, welfare reform, queer legal theory, law and society
Date posted: December 2, 2009