Autonomy in the Family
76 Pages Posted: 15 Aug 2019
Date Written: August 12, 2019
Scholars largely support the concept of choice in family form. But while scholars largely agree on this abstract goal, they do not agree on which legal rules best further that end. Take the issue of economic rights for nonmarital partners. The conventional doctrine treats nonmarital partners as legal strangers. No rights arise out of their relationship. Like other legal strangers, they can alter this default rule by entering into an agreement to share. But unless they do so, the parties have no obligations to each other. The dominant scholarly defense of this rule sounds in the register of family autonomy, that is, respect for choice in family form.
This Article accomplishes two key goals. First, it offers a novel lens through which to reconsider how best to promote meaningful choice in family form. By carefully mining another area of nonmarriage law, the law of nonmarital parentage, this Article demonstrates that the conventional doctrine undermines rather than furthers that goal. To make that choice a meaningful one, the law must recognize and respect a range of different types of families that people have chosen to create.
Second, this Article draws on nonmarital parentage law, as well as the almost entirely overlooked body of what I call “interstitial marriage cases,” to demonstrate that courts are capable of applying more capacious rules that give effect to chosen families. In this way, marriage-related developments can be utilized to expand rather than to forestall the law of nonmarriage.
Keywords: marriage, nonmarriage, equality, due process, equal protection, family, autonomy, association, parent, parentage
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