Equality and Family Autonomy

Forthcoming Univ. of Pa. J of Con. Law

64 Pages Posted: 24 Apr 2021 Last revised: 3 Jun 2021

See all articles by Katharine K. Baker

Katharine K. Baker

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: April 14, 2021

Abstract

Contemporary family law scholarship and a growing body of doctrine often assume that a functional approach to family law – treating those who have acted like family as family – is the best way to secure equal treatment for people who live in relationships that have not been recognized legally as familial. This article argues that these functional claims, made in the name of equality, inevitably disrupt the very protection they are asking for because they undermine principles of family privacy and autonomy. In unpacking the benefits of a robust family autonomy doctrine – benefits that are crucially important to communities of color and LGBTQ communities - this article challenges not only the functional turn in family law, but feminist scholarship that has been critical of family autonomy and privacy doctrine. Building on the consistent defense of privacy that emanates from women scholars of color, this article demonstrates how functional analyses demand interference and judgement that is likely to tear at the fabric of minority communities. Functional approaches vest judges with the power to define who a family is and what it should look like. This article shows how when judges do this in the parental area, they reify dyadic, heteronormative, usually white middle class notions of parenthood. When they do it in the context of cohabitation, they reify gender roles and a morality that assumes the ubiquity of long-term conjugal relationships. Thus, the functional turn, hailed as progressive, actually re-inscribes traditional understandings of family relationships.

Keywords: Family Autonomy, Fundamental Rights, Equal Protection, Parental Rights, Nonmarriage, Privacy, Equality, Functional Parenthood, Marginalized Communities, LGBTQ rights

Suggested Citation

Baker, Katharine K., Equality and Family Autonomy (April 14, 2021). Forthcoming Univ. of Pa. J of Con. Law, Available at SSRN: https://ssrn.com/abstract=3826639

Katharine K. Baker (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

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Chicago, IL 60661-3691
United States
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