Our Sacred Institution: The Ideal of the

Family in American Law and Society*

MarthaAlbertson Fineman'"
I.

INTRODUCTION

Law and the images of social organizations reflected and reinforced in law are important devices in the imposition and perpetua-

tion of generalized societal norms. The relationship between dominant ideology and law is suggested in the processes of generation

and interpretation of specific legal rules-in the creation of legal

rhetoric. As lawgivers' create and interpret law they also articulate, define, and shape the perceived interest of the larger society.
Societal interest is "found" by reference to many types of data,

typically produced outside of the law-making process and incorporated through introduction as evidence or expert testimony in adjudications or legislative hearings. In drawing conclusions about society, human nature, and/or the interests to be expressed in law,
lawmakers may reference information produced by a variety of
methods, framed by specific disciplines-science, history, religion,

logic, philosophy, sociology, etc.-or, perhaps, just derive answers

from their own past experiences and present intuitions. Every method used for production of knowledge results in some controversial
outcomes. Quite often there is conflicting, unclear, or dubious infor-

mation about any specific "fact" or conclusion.

Often choices must be made from among competing assertions
or interpretations as amorphous social and cultural concerns and
areas of real and potential conflict are reduced to law. Shared be-

liefs, social and cultural metanarratives' shaped in accordance with

* The 1992 William H. Leary Lecture, delivered at the University of Utah
College of Law on November 19, 1992, edited and annotated for publication. This is
part of a book-length project entitled The Neutered Mother, The Sexual Family and
Other Twentieth Century Tragedies. I would like to express my thanks to Isabel
Karpin and Adrienne Hiegel for their assistance on this Article.
"* Maurice T. Moore Professor of Law, Columbia University.
1. In this category I include law professors as well as lawyers, judges, and
legislative and judicial administrators and adjuncts.
2. See, e.g., Martha Minow, 'Forming Underneath Eveything that Grows'" Toward a Histoy of Family Law, 1985 U. WIs. L. REV. 819 (discussing development of
family law through exploration of social history of the family). Essentially a modernist concept, a meta- or public narrative is understood to be the story or "narrative"
which both legitimates and controls knowledge in the Western world. The modernist
attempts to characterize the world as ultimately unpresentable, while relying on a

387
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UTAH LAW REVIEW

[1993: 387

dominant ideology, influence what is chosen from among competing

and contradictory facts and conclusions. And the law that is built
around such choices, more than just another specific articulation of
societal interest, operates as a potentially coercive or punitive force
in the lives of people whose circumstances or preferences do not
conform to the norms.
In regard to regulating intimacy, the law defines and enforces
norms by referencing a specific and historically based metanarrative
about "the family." In our society only one form of intimate entity
has been so venerated in the culture as to become institutionalized
as the model or archetype of intimacy. People live in a wide diversity of intimate arrangements-plural marriages, same sex relationships, single parent families-but they do so at risk. Historically
only the nuclear family has been protected and promoted by legal
and cultural institutions.'
The veneration of the nuclear family is coercive, with the state
through its regulatory mechanisms (whether they be the criminal
justice system, child welfare laws, or tax codes4 and other regulato-

form of narrative presentation that is familiar or recognizable and which offers the
reader or listener a degree of comfort. In contrast, postmodern theories accept the
disappearance of metanarratives and focus instead on the existence of "local, interlocking language games which replace the overall structures." Jennifer Wicke,
Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455, 462 (1991). See
generally FREDRIC JAMESON, POSTMODERNISM (1991); Willem van Reijen & Dick
Veerman, An Interview with Jean-Francois Lyotard, 5 THEORY, CULTURE & SOC Y,
277, 301-02 (1988).
3. See generally EDWARD SHORTER, THE MAKING OF THE MODERN FAMILY (1975)
(exploring the history and development of the nuclear family); Lawrence Stone, The
Rise of the Nuclear Family in Early Modern England. The PatriarchalStage, in THE
FAMILY IN HISTORY 13 (Charles E. Rosenberg ed., 1975)(same); see also Lee E.
Teitelbaum, The Legal History of the Family, 85 MICH. L. REV. 1052, 1053-54
(1987)(discussing relation of patriarchal family to colonial community in the 18th
century).
As Chief Justice Waite wrote in Reynolds v. United States:
Upon [marriage] society may be said to be built, and out of its fruits
spring social relations and social obligations and duties, with which
government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less
extent, rests.
Reynolds v. United States, 98 U.S. 145, 165-66 (1878).
4. Married persons receive significantly favorable treatment under estate and
gift tax law, enabling them to give gifts and to pass on estates of unlimited value to
a spouse without the grantor having'to pay taxes on the gift or estate transferred.
See 26 U.S.C.A. 2056, 2523 (West Supp. 1993). But see David J. Roberts & Mark
J. Sullivan, The Federal Income Tax: Where Are the Family Values?, 57 TAX NOTES
547, 549 (Oct. 26, 1992)(arguing tax provisions for filing joint returns may unevenly
impact married couples so that some receive a benefit while others pay a penalty).

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No. 2]

THE IDEAL OF THE FAMILY

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ry civil laws) defining and securing for the nuclear family a privi-

leged if not exclusive position in regard to the sanctified ordering of

intimacy.
But it is not just the law that has conferred on the nuclear

family this sacred status. In fact, as I will address in a subsequent

section, the law has been to some extent the most flexible of our

normative institutions, offering the promise of a more relaxed and

expandable model of families than many other discourses. Alterna-

tive sexual behavior has been decriminalized in many areas' and

even afforded protection or explicit quasi-family status.' In spite of

such legal relaxations, however, the grip of the traditional family

metanarrative remains firm, in part because it resonates so strongly
in certain extralegal institutions.
II.

THE NATURAL FAMILY

Contemporary American legal policies concerning the family

are rooted in historic patriarchal structures and reflect notions of
normality and morality developed centuries ago in the ecclesiastic
as well as the common law courts. 7 These concepts continue to in-

fluence the ways in which society constructs and communicates

ideological conclusions about what constitutes a "natural" family!

5. For example, in 1962, the Model Penal Code recommendations included the
repeal of sodomy statutes; in the last twenty years since these recommendations,
approximately one-half of the states have eliminated their prohibitions against sodomy. The last repeal of a sodomy law occurred in Wisconsin in 1983. See Nan D.
Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 538 (1992). However,
of the states that still retain sodomy laws, most do not limit the reach of the laws
to same-sex or extramarital relationships. See Juli A. Morris, Note, Challenging Sodomy Statutes: State Constitutional Protections for Sexual Privacy, 66 IND. L.J. 609,

620 (1991).
6. See Note, Looking for Family Resemblance: The Limits of the Functional
Approach to the Legal Definition of Family, 104 HARv. L. REv. 1640, 1646-49 (1991);
see also Craig A. Bowman & Blake M. Cornish, Note, A More Perfect Union: A Legal
and Social Analysis of Domestic Partnership Ordinances, 92 COLUM. L. REV. 1164,
1186 (1992)(discussing recent proposals for legally recognized domestic partnership
agreements).
7. See, eg., Lee E. Teitelbaum, Moral Discourse and Family Law, 84 MIcH. L.
REV. 430, 432-33 (1985)(19th century cases and legal commentary defined "good
family" by "direct reference to natural law and to a Christian understanding of marriage and the family").
8. I use the term 'natural family" to refer to the traditional nuclear family-husband/father, wife/mother, and their children. More inclusive or otherwise alternative family forms I refer to as "intimate entities"--those family-like groups that do
not conform to the traditional model. The examples I am most interested in are
single mother, same sex, and plural marriage family entities. By making a formal
distinction between "natural" (nuclear) families and other groupings, I hope to reveal
the extent of the continued social and legal preference for formalized, heterosexual,

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UTAH LAW REVIEW

[1993: 387

In the title to this essay I refer to the family as both a sacred

institution and an ideal. These concepts are related to the family's
assumed naturalness-the designation of "sacred" connoting the
institutionalization of a venerated, consecrated status-the institutionalization of one idealized form of intimacy ideologically secured
against defamation or violation by unsanctified alternatives. Of
course, our ideal is built upon one religious tradition's view of what
constitutes a family and, in that way, is a sacred ideal, but I have a
broader notion of sacred in mind.
A.

The Merger of Sacred and Secular

The natural family ideal has been so reiterated in all aspects of

secular society that it seems as venerated outside of religion as it is
inside. The nuclear family as a secular concept is sanctified as neutral, essential, and inevitable. Our traditional legal family is also to
be counted as sacred because it expresses and reformulates images
of "appropriateness" or "naturalness" found in the larger society.9
However, the powerful and limiting grip on our imagination
exercised by the image of the idealized nuclear family form seems
most tenacious in discourses outside of law. Contemporary political
and academic discussions about the family typically assume that as
an entity the family has a natural, essential form: husband/father,
wife/mother, and child. 10 This particular configuration -is considered natural.
Based in the first instance on a formalized sexual tie between a
man and woman, reinforced by the latter biological event of parenthood, the notion of the natural family is rooted in the ways in which
nuclear family formation. I also want to highlight that there are broader normative
conclusions conveyed in seemingly neutral references to "the family."
9. Courts have, for example, traditionally adopted a formal analysis to resolve
challenges to the legal definition of family relationships. According to the formal approach, terms such as "family," "spouse," and "parent" refer only to members of a
nuclear family unless explicit statutory language or historical exceptions, such as the
traditionally defined extended family, compel legal recognition of an alternative form.
fTis mode of analysis recognizes only individuals related to each other by the bonds
of blood, adoption, or marriage" to be "family" and refuses to "give weight to the
functional features of a family such as duration or strength of commitment. Given
the relatively few statutory exceptions to the traditional legal definition of family, the
formal approach results in privileging the nuclear family over all alternatives." Note,
supra note 6, at 1645 (footnote omitted).
10. See, e.g., DAVID L. CHAMBERS, MAKING FATHERS PAY: THE ENFORCEMENT OF
CHILD SuPPORT (1979); David J. Rothman, The State as Parent: Social Policy in the
Progressive Era, in DOING GOOD: THE LIMITS OF BENEVOLENCE 67 (Willard Gaylin et
al. eds., 1981); Eli Zaretsky, The Place of the Family in the Origins of the Welfare
State, in RETHINKING THE FAMILY: SOME FEMINIST QUEsTIONs 188 (Barrie Thorne &
Marilyn Yalom eds., 1982).

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THE IDEAL OF THE FAMILY

391

we construct reproductive and socialization imperatives. It is also

viewed as functional, arguably essential, from an economic or psychological perspective. In its social and cultural presentations, the
sacred status of the nuclear family-the status as venerated-remains a powerful ideological symbol of social order and structure."
Furthermore, this secular reification of the natural family in

11. Disciplines outside of law continue to cast women in complementary and

supporting roles. Psychoanalytic discourse about the family, as constructed by Freud,
centers on a family drama concerning the creation of the oedipal complex in which
attachment to or desire for the mother fixes the male child in the presocial stage. In
order for the male child to become a social being, to 'achieve selfhood, the mother
must be surpassed. The male child struggles with the father over love for the mother, and resolution of the oedipus complex is achieved typically by the male child's
identification with the father and temporary renunciation of the mother. The mother
is rediscovered in the male child's adult sexual object. See FEMINISM AND PSYCHOANALYSIS: A CRITICAL DICTIONARY 266 (Elizabeth Wright ed., 1992); CHARLES
RYcROFT, A CRITICAL DICTIONARY OF PSYCHOANALYSIS 105 (1968).
For Lacan the oedipus complex operates on the same nuclear family structure,
however, it operates at the level of language or the Symboli. Lacan shifts the psychological inquiry from biological drives (Freud's conception) to the allocation of
meaning through language. In order to gain entry into the Symbolic order, the child
must ascend into subjectivity. It cannot be an "I" while still dependent upon and
attached to the mother. Thus the mother comes to represent the presymbolic or inarticulate stage. In Lacan's view, the father introduces the principle of the law, in
particular the law of the language system. The infant is bound to the mother, who is
herself bound to the phallus in so far as she does not have it. There are several
positions which the child can take in relation to the mother in Lacanian theory but
the crucial point is that the mother deficient of a phallus becomes the site of the
negative, the lack, and cannot alone assist her child to ascend into subjectivity.
There must be accession to the phallus or the name of the father. See BICE
BENVENUTO & ROGER KENNEDY, THE WORKS OF JACQUES LACAN: AN INTRODUCTION
126-41 (1986). Object relations theory also identifies the struggle of the male child to
differentiate himself from the mother as the crucial event of gender-identity formation in a way that is similar to but not identical with Lacanian "castration" experience. See i&L at 172-83.
Similar dramas are replayed in the economic models of family life. University
of Chicago's Gary Becker, who recently won the Nobel Prize for his work on economic theories of family roles, posits a theory of family life whereby women assume the
burdens of intimacy because it is efficient to do so. In Becker's analysis, market
inequities, which distribute a major share of housework to women and pay women
less for their work outside the home, become the justification for an unequal division
of labor within the family and for the maintenance of rigid gender roles. See GARY
S. BECKER, A TREATISE ON THE FAMILY 14-37 (1981).
To my surprise, I encounter similar sets of assumptions about the value of
the nuclear family even in so-called oppositional discourses such as feminism. The
existence of similar assumptions shows the tenacity and rigidity of our views about
intimacy"-rigidity that ultimately affects how we constitute and understand what is
an "appropriate," 'essential" family form and structure. The reaction against traditional family roles has been a rejection of the gender stereotypes rather than a
reimagining of potential roles within the family.

UTAH LAW REVIEW

[1993:387

the scholarly disciplines has meant that the tentative steps at reformulation made in law have ultimately been unsuccessful. The idealization of a natural nuclear family is preserved through constant
reiteration and recitation of family ideology in political and social
rituals-these images are reflected in law. Variations from the ideal
family form are labeled deviant, considered abnormal, and their
increasing visibility in society has generated discussions about possible ways to remedy or compensate for these perceived defective,
unnatural, or profane units." The metanarrative directs the discussion.
To label the traditional family story a metanarrative does not
mean there is no conflict over its terms or form. There in fact has
been a great deal of conflict and social agitation over the nuclear
family in recent years. As a result, there have been significant
shifts in the explicit rhetorical importance attached by various
groups within society to the family as a cultural icon as well as
reconsideration of it as a functional institution. 3
Such challenges are part of the "evolutionary dialogues" typically associated with cultural negotiation and they reveal the inescapably political (in the largest sense of that word) and ideological
nature of change. These challenges have not proved to be revolutionary, however. To a large extent they merely reformulate and
update basic assumptions about intimacy-changing some aspects of
the old family story to accommodate new family forms. Specifically,
they retain the centrality of sexual affiliation to the organization
and understanding of intimacy.
This ultimately reveals the power of a metanarrative. It struc-

12. See, e.g., Speeches from the Federalist Society Fifth Annual Lawyers Convention: Individual Responsibility and the Law, 77 CoRNELL L. REv. 1012, 1016
(1992)(arguing that "[tihe nuclear family has been the norm since the very beginning
of human history" and that "the current pattern-where forty percent of all American
children now live apart from one or both of their biological parents" is the "aberration").

13. See, e.g., Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has
Failed, 70 VA. L. REV. 879, 944 (1984)(criticizing law's continued reluctance to recognize child-parent relationships that arise outside the nuclear family); Mary P.
Treuthart, Adopting a More Realistic Definition of "Family," 26 GONZ. L. REV. 91, 97
(1991Xasserting that "many people subscribe to a broader definition of family than
the definitions utilized by most courts and legislatures"); Kris Franklin, Note, "A

Family Like Any Other Family': Alternative Methods of Defining Family Law, 18
N.Y.U. REV. L. & Soc. CHANGE 1027, 1062-64 (1991)(advocating reformulation of
legal definition of family to reflect existing pluralities of family types); Note, Looking

for a Family Resemblance: The Limits of the FunctionalApproach to the Legal Definition of Family, 104 HARV. L. REV. 1640, 1640 (1991)(asserting that "[tihe traditional
nuclear family is rapidly becoming an American anachronism").

THE IDEAL OF THE FAMILY

No. 2]

tures and defines the rhetoric and debate. In spite of the opportunities presented by changing patterns of behavior, an extensive ideological reconsideration of the organization of intimacy is foregone.
The construction of the sexually affiliated family as the imposed
ideal escapes sustained, serious consideration and criticism. The
nuclear family as natural is assumed.
B.

Challenges to the Nuclear Family

I have argued that the sacredness of the nuclear family is derived from the unquestioned belief in its "naturalness"--a belief
that establishes it as a cultural icon-an image conclusively culturally presumed to represent and reflect some larger truths. However,
in today's heterogeneous society, it would be hard to argue that the
family is a totally untarnished icon.
Furthermore, in recent years there have been changes in patterns of intimate behavior that present substantial challenges to the
exclusivity of the nuclear family as the only image of appropriate
intimacy. The perceived increase in nontraditional intimate entities
has generated both celebration and concern. Their existence has
also worked itself out in political and legal discourses as more or
less formal challenges to the supremacy of the natural family are
waged.
For example, social movements, such as feminism, or groups
proposing gay and lesbian and children's rights, were organized in
part to bring to political light the existence of the exploitative potential within traditional family roles or to highlight the unfairness
of rigid adherence to the traditional forms. To some extent, such
groups give the illusion that there has been and continues to be a
collective reimagining of the family. They suggest some cultural
renegotiation about the ways we regulate and define intimacy.
1.

The Arguments for Alternatives

The substance of one set of challenges is the argument that

nontraditional entities should be accepted as "families," conferred
with the same social and ideological credibility as the traditional
form because they perform the same function of fulfilling the emotional and material needs of their members. Intimate relationships
are analogized to the traditional family, combining functional and
symbolic appeals in arguments for legal and social recognition. 4

14. See generally John C. Beattie, Note, Prohibiting Marital Status Discrimination: A Proposal for the Protection of Unmarried Couples, 42 HASTINGS L.J. 1415

(1991); Elizabeth A Delaney, Note, Statutory Protection of the Other Mother:.Legally

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Analogy arguments accept the appropriateness of an intimate

institution which is entitled to a privileged or protected position
within law and society. Such challenges merely assert that the
designation of "family" should encompass more, different, and nontraditional relationships-the nontraditional should be entitled to
privileged status also. Recent examples include the various "domestic partnership" laws enacted in some municipalities.1 5
Furthermore, the tenacity of the belief that it is the sexual
affiliation between two adults that constitutes the core affiliation-the bedrock on which other family relationships are built-is
evident in the discussion of alternative families. Proposed alternatives are analogized to it in its formalized form-marriage. Legal
recognition of these alternatives is justified by reference to their
similarity to heterosexual marriage in regard to the emotional and
economic functions assumed in the creation of a sexual tie.
This process of analogy and justification further reinforces the
role of the natural, nuclear family as the paradigmatic sexual affiliation. It accepts the nuclear family as an institution that appropriately structures the discourse about alternative intimate entities,
creating the metanarrative by which others are judged. The persistence of the nuclear family as the model of intimate organization
reveals the difficulty of change in this area and helps to explain
how even potentially radical challenges are absorbed and
transformative impulses are tamed.
2.

The FunctionalAttacks

A different type of challenge to the traditional family confronts

some of the foundational myths that provide the contemporary,
secular ideological underpinnings of the preference for the nuclear
family. The sentimental designation of nuclear family as a haven, a

Recognizing the Relationship Between the Nonbiological Lesbian Parent and Her
Child, 43 HASTINGS L.J. 177 (1991); Jane Drummey, Note, Family Ties: A Compari-

son of the Changing Legal Definition of Family in Succession Rights to Rent-Regulated Housing in the United States and Great Britain, 17 BROOK. J. INT'L L. 123
(1991); Rebecca L. Milton, Note, Legal Rights of Unmarried Heterosexual and Homosexual Couples and Evolving Definitions of 'Family," 29 J. FAM. L. 497 (1991);
Adrienne K. Wilson, Note, Same-Sex Marriage: A Review, 17 WM. MITcHELL L. REV.
539 (1991).
15. Domestic partnership ordinances have been adopted in at least two dozen
cities in the United states, including Los Angeles, Berkeley, West Hollywood, and
Laguna Beach, California; New York City (by executive order of the Mayor) and
Ithaca, New York; Seattle, Washington; Madison, Wisconsin; and Tacoma Park,
Maryland. See Wilson, supra note 14, at 539 n.2; see also Bowman & Cornish, supra
note 6, at 1188-90 (1992)(discussing political entities that have adopted domestic
partnership ordinances).

No. 2]

THE IDEAL OF THE FAMILY

395

refuge, from the cold and cruel world has become hard for some to
maintain when social movements such as feminism and child advocacy have brought to light the very real potential of exploitative and
abusive behavior within families.' 6
These arguments tear the veil of "privacy" from the traditional
family revealing that it fails to perform the social and psychological
functions that were the justification for its privileged position. Ultimately, such arguments call into question the whole concept of the
nuclear family as a legally privileged unit, entitled to special status
as a form of social organization. The arguments focus on the individuals within families, affording the entity no independent deference per se.
This latter type of challenge, if understood as an attack on
structuring intimacy around sexual pairing, could set the stage for a
systematic reconsideration of the historic nature and continued
desirability of the traditional family as a social institution, entitled
to deference and protection from intervention and supervision by
the state and its personnel. 7 Instead, however, the functional (or
dysfunctional) critiques typically focus on specific families or individuals as "dysfunctional" and generate discussions about the causes of such deviation from the ideal. Such deviation is typically labeled "pathological" and the cause is often identified as the absence
of a forceful and employed male head of household. These critiques
spawn proposals for "cures" which reinforce and reinvent the natural family in a way that accommodates contemporary circumstances.' 8 This process, referencing more of the same in terms of the

16. See e.g., Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV.
973, 974 (1991)(asserting that legal notion of family privacy has encouraged and reinforced violence against women). See generally DOMESTIC VIOLENCE ON TRIAL. PSYCHOLOGICAL AND LEGAL DIMENSIONS OF FAMILY VIOLENCE (Daniel J. Sonkin ed., 1987);
LEONARD T. KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE, CONFLICT
AND SEXUAL ABUSE (1989); ELIZABETH H. PLECK, DOMESTIC TYRANNY: THE MAKING
OF SOCIAL POLICY AGAINST VIOLENCE FROM COLONIAL TIMES TO THE PRESENT (1987).

17. See Martha A. Fineman, Intimacy Outside of the Natural Family: The Limits
of Privacy, 23 CONN. L. REV. 955, 972 (1991)[hereinafter Fineman, Intimacy Outside
of the Natural Family](concluding that society is unready or unwilling to revamp the
concept of family to include nontraditional groupings).
18. The idea that single parent families are somehow "pathological" has persisted for the last 20 years. See, e.g., DANIEL P. MOYNIHAN, THE NEGRO FAMILY- THE
CASE FOR NATIONAL ACTION, reprinted in LEE RAINWATER & WILLIAM L. YANCEY,
THE MOYNIHAN REPORT AND THE POLITICS OF CONTROVERSY 51 (1967)(arguing decline

in black community caused by deterioration of traditional family structure). For a

recent example of this notion, see Frank E. Harper, To Kill the Messenger. The Deflection of Responsibility Through Scapegoating (A Socio-Legal Analysis of Parental
Responsibility Laws and the Urban Gang Family), 8 HARV. BLACKLErrR J. 41,
59-60 (1991)(locating source of teenage gang activity in gang-concentrated communi-

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[1993: 387

ideology of the family, is a reconstruction of the assumed natural

family, not its revisioning nor a questioning of what should be
viewed as natural.
III.

LEGAL NARRATIVES-FROM HIERARCHY TO EGALITARIANISM

Some potential for radical changes in the family narrative as

manifested in law is also to be found in the deviation from natural
family ideology prevalent in divorce law discourse. In this area,
perhaps because it deals with day to day realities, law has been responsive to some of the undercurrents of upheaval. There has been
a considerable amount of rewriting of family law that has already
occurred in an attempt to reflect more "contemporary" notions about
the family.
In considering the laws governing marriage and divorce, for
example, it is no longer clear what constitutes appropriate family
role behavior-who is or has acted as a "good" wife and mother, or
husband and father, fulfilling the well-defined roles in the nuclear
family. In fact, it is no longer clear these are even appropriate questions for the legal system to ask. The laws governing divorce have
replaced normative assessments that took into account conduct
through consideration of "fault" with a system of default rules, such
as no-fault divorce and preferences for joint custody, making the
process more administrative than judgmental.
A.

Legal Rules

One significant aspect of the no-fault reconstruction of the

family narrative is the characterization of marriage as a partnership between equals. Each makes contributions to the relationship
which, although they may be different in kind, are of equal worth.
Each spouse is considered capable of providing and caring for her or
himself and any children are shared responsibilities. The ideal is of
spouses voluntarily joined and interdependent-separate yet united.
This is a deviation from the nuclear family in that it is not a hierarchal model (some would say, therefore, it is also not patriarchal).

ties as the predominance of single-parent, low-income black and Latina households).

19. See, e.g., Herna H. Kay, An Appraisal of California'sNo-Fault Divorce Law,
75 CALIF. L. REV. 291, 299-304 (1987)(examining policy underlying no-fault divorce
as step toward egalitarian vision of marriage). But see Richard Ingleby, Matrimonial
Breakdown and the Legal Process: The Limitations of No-Fault Divorce, 11 LAW &
POL'Y 1, 13 (1989Xarguing that despite value of policy of no-fault divorce its aims
may be unattainable); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L. REV. 79, 97-112 (asserting that the adoption of no-fault divorce grounds failed to accomplish the purposes for which they were enacted).

No. 2]

THE IDEAL OF THE FAMILY

Use of the partnership business metaphor has had implications

for parental roles also. Most state statutory schemes have fashioned
the generic category of "parenthood" from the previously differentiated roles of "mother" and "father." Many statutory schemes express
a preference for joint custody or shared parenting as each parent (as
an equal) is presumed undifferentially involved and essential to a
child's upbringing. Interestingly, this egalitarian reconstruction of
the family narrative was initially undertaken largely in response to
women resisting their historically assigned roles as wives and mothers in the traditional family story. At the level of legal rhetoric,
these efforts have been extremely successful in implementing the
idea of an egalitarian family. Family law language is remarkably
gender neutral in statutes and cases. In substantive terms, dependency is no longer assumed to be the justification for allocation of
marital wealth to women, rather it is the contribution they have
made to the family that justifies their partnership share at dissolution. The whole way in which marriage is discussed at divorce has
changed substantially in the past few decades.
However, while the dominant spousal story for the past few
decades has been one of "equality," there continues to be great gender inequality in the allocation of the burdens and costs associated
with family operation that affect how this story is played out in real
lives. 20 Society has not kept pace with law-and in spite of the rhetorical reforms, the family continues to operate as the most
gendered or role-defined of our institutions, allowing for and justifying pervasive, ingrained and persistent patterns of gender inequality in the larger society.
B. The Realities of Dependencies
Rhetorical flourishes in family law reforms aside, the burdens
associated with intimacy and the maintenance of intimacy have
always been and continue to be disproportionately allocated to women.21 This allocation is supported by extralegal norms and, given

20. See generally MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY (1991); VIcTOR R. FucHs, WOMEN'S QUEST FOR EcONOMIc EQUALITY (1988).
21. See, e.g., Mary J. Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 HARv. L. REV. 1045, 1048-52 (1992)(arguing legal rules regulating
wage market, custody decisions, and employment discrimination penalize women who

do not conform to traditional gender roles); Judith Resnik, "Naturally"Without Gender Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682, 1721
(1991)(finding many federal statutes address women in family settings as mothers,
caregivers, as pregnant or possibly pregnant, as dependents, and as heads of house-

holds); Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 CAL.
L. REV. 615, 628-30 (1992)(arguing primary caretaker rule reinforces traditional gen-

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[1993:387

the cultural, ideological, and market structures built and dependent

upon this fundamental unequal division of family labor, the pattern
is going to be very difficult to alter. If we were really serious about
redistributing the burdens of intimacy or family maintenance, there
would need to be an ideological and structural reorientation of society, the rewriting of academic disciplines and the reallocation of
social resources. This does not seem likely to occur anytime within
the near future.
Specifically, a redistribution of the burdens of intimacy would
require the reallocation of social and economic subsidies.' Given
current social realities, we would be a society that recognized and
accepted the inevitability of dependency and subsidized caretaking
and caretakers. This could only happen if there were an extensive
ideological reevaluation of the nuclear family along with a rethinking of the institution of motherhood with the goal of empowering
women. Such a rethinking would need to expose the many ways in
which our notion of the natural family is dependant on enforced role
divisions which make the caretaking of women invisible and uncompensated.'
With that quite grandiose. objective clearly stated, it is obvious
that any project seriously approaching the issue of rethinking intimacy and the family would represent a significant ideological
endeavor. Is it also an impossible undertaking-merely the fashioning of a utopian vision? In considering this question, it is important
to recognize that the law is only one of the institutions that functions to create, disseminate, and perpetuate norms in society. I have
increasingly come to view it as one of the least significant. Law
cannot lead where other constitutive discourses and philosophies
will not follow. Other disciplines such as economics, psychology,
sociology, public policy, anthropology, biology, and history, all have
their own narratives about the family with certain values and assumptions embedded in them.
Even if law should respond, the societal nature of the family
and its relationship to the maintenance and operation of other soci-

der and parenting roles in ways detrimental to women).

22. See Herma H. Kay, Commentary: Toward a Theory of Fair Distribution, 57
BROOK. L. REV. 755, 956-66 (1991)(discussing distribution of property on divorce);
Linda Hassberg, Comment, Toward Gender Equality: Testing the Applicability of a
Broader DiscriminationStandard in the Workplace, 40 BuFF. L. REv. 217, 240 (1992)
(noting facially gender-neutral policies, such as dependent sickness leave, may further
gender-stereotyped behavior if women are encouraged to use the policies and men are
not).
23. See generally Jane E. Larson, The Sexual Injustice of the TraditionalFamily,
77 CORNELL L. REv. 997 (1992).

No. 2]

THE IDEAL OF THE FAMILY

etal institutions means that potential changes cannot be viewed in

isolation. Given the strength of our ciltural narratives, law and law
reform must be viewed in the context of other norm-generating
institutions that tell their own stories' and will inevitably influence
law.
IV.

SPECULATION ABOUT DEEP STRUCTURE AND METANARRATIVES

I have argued that law is but one institution in which cultural

and social meanings are produced and, for the most part, that law is
more reflective than constitutive of social norms. Social and cultural
institutions outside of law reflect the primacy of sexual affiliation.
Even more significant (and ominous in regard to the prospects of
any ideological restructuring project), is the fact that some version
of the natural, nuclear family pervades discourses across disciplines-it is found in every area and typically presented as a privileged institution. In other words, there are transdiscipline assumptions about the optimal structure of the family.
A.

Other Family Narratives

Scholarly disciplines have many different emphases and modes

of discourse in assessing the ideological role of the family-some
dwelling on its symbolic significance, others considering it from a
practical or functional perspective, while still others attempt to
measure its value to individual family members and/or society. The
disciplines also have different methods of proof. The family narrative that surfaces in social science case studies is illuminated and
buttressed by so-called scientific and therefore presumed objective
means, for example.
There are different forms to the stories-some are horror stories, others more like sentimental visions-but they seem typically
to offer both explanations for the status quo as well as normative
direction for the future. What interests me are the threads of the
family stories that transcend disciplines-representing core notions
about the family, revealing that there is a "deep structure" to the
ways in which we think about the institution: the metanarrative.'

24. The notion of the metanarrative assumes some sort of hierarchy of cultural
representations and cultural values. Since the Enlightenment, for example, the central Western metanarrative has been that of progress, reason, and revolution, a public narrative of Darwinian evolution and class struggle. Metanarratives provide
grounds for collective identities, allowing for a linear interpretation- of historical forces. Thus, for instance, the notion of a unitary metanarrative has been used to estab-

lish public law adjudication as the paradigm of all adjudication, as a system of adjudication that is furthermore governed by a single set of principles whether the en-

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Specifically, there are two related observations. First, all family

narratives typically assume certain standard configurations and
place the family members into roles. These assigned roles reflect an
assumed division of family labor into complementary specializations. The components roles are perceived as making necessary but
differentiated contributions to the whole. This is one form of harm
attributable to the legacy of the nuclear family. It is a structure
with interdependent, well-defined roles, and women's roles are typically subservient to the greater whole. 2'
Second, a consideration of individuals' roles within the cooperative interactive endeavor labeled family focuses attention on the
specific functions assigned to the family by society. The historic
family role divisions have significant practical and ideological implications for the organization of society as a whole. The creation of
family roles is related to what are considered to be essential social
functions for the institution. 6 Some of the implications of assigning (sometimes confining) certain societal tasks to families have
been explicitly recognized and theorized, particularly in critical
scholarship. The societal implications of other assigned or assumed
family functions seem less well developed, however, and are often
concealed.
B.

The Undeveloped Dependency Discourse

Little discussed, but extremely important from a contemporary

policy perspective, are the many implications of the fact that the
nuclear family has functioned on an ideological level in our society
as the repository of dependency.27
terprise is common-law adjudication, statutory construction, or constitutional adjudication. For a critique of this position, see MELVIN A. EISENBERG, THE NATURE OF THE
COMMON LAw 8-13 (1988).
In contrast, postmodernist theories which call for the disintegration of the
notion of metanarratives, as seen in the work of Frederic Jameson and Jean-Jacques
Lyotard, understand cultural referents to be "a closely knit weave of intricate interconnections" without any single exclusive or overpowering identity. Wicke, supra note
2, at 462. See generally DAVID KOLB, THE CRITIQUE OF PURE MODERNITY: HEGEL,
HEIDEGGER AND AFTER (1986); ROBERTO M. UNGER, LAW IN MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY (1976); Richard M. Thomas, Milton and Mass
Culture: Toward a Postmodernist Theory of Tolerance, 62 U. COLO. L. REV. 525
(1991).
25. This may also shed some light on why divorce law discourse fails at the implementation stage or as enlightened policy.
26. Three family roles come to mind: sexuaVreproductive, emotional/psychological,
and economic-production/consumption. For centuries, the formal family stood alone
as the only institution of condoned sexual intimacy, a cultural monopoly currently
under attack. See Minow, supra note 2, at 864-65; see also Teitelbaum, supra note 3,
at 1055-57 (discussing historical views of family law).
27. See Lee E. Teitelbaum, IntergenerationalResponsibility and Family Obliga-

No. 2]

THE IDEAL OF THE FAMILY

In recent years I have argued for a rethinking of our notions

about intimacy, the family, and such things as dependency.' I
have urged a restructuring of law so that the rules would not continue to unrealistically privilege the nuclear family-an institution
that I believe we should no longer consider viable as the major
contemporary normative or legal family structure.
I believe we must focus our attention on how well the traditional family is performing certain functional tasks structurally assigned to it. I have been specifically concerned about the implications of the assignment of managing dependency to the traditional
family in our contemporary political discourse around child poverty,
divorce, and welfare reform. Given such phenomena as increasing
rates of divorce, the increase in the number of never married mothers, and the increase in life expectancy, particularly for women, the
family seems doomed to fail in its historic task of masking certain
dependencies.'
If dependency is seen to be natural and inevitable-if we view
it as inherent in the status of infancy, illness, certain disabilities,
and quite often, age, for example-we can begin to see the implications of the issue and the historic (and contemporary) significance of
assignment of dependency to the family. This issue is of tremendous
significance to women. Within the family there are socially and
culturally assigned caretakers for these dependencies (typically
women in some familial relationship-wife, mother, daughter,
daughter-in-law, sister). These caretakers are tied into intimate
relationships with their dependents and, as such, they need economic and societal resources to fulfill their caretaking tasks.
The very process of assuming caretaking responsibilities creates dependency in the caretaker-she needs some social structure
to provide the means to care for others. In a traditional family, the
caretaker herself, as wife and mother, is dependent on the wageearning husband to provide for her so she can fulfill her tasks. Given current social realities, this model can no longer be considered a
viable one.

tion: On Sharing, 1992 UTAH L. REV. 765, 773-80 (discussing the ethics and recognition of family support and dependency).
28. See Fineman, Intimacy Outside of the Natural Family, supra note 17; see
also Martha A. Fineman, Images of Mothers in Poverty Discourses, 1991 DUKE L.J.
274 [hereinafter Fineman, Images of Mothers in Poverty Discourses](discussing an
adaptation of patriarchy due to rising divorce rates and single mother families); Martha A. Fineman, The Neutered Mother, 46 U. MIAMI L. REv. 653 (1992).
29. See, e.g., James D. Weill, Child Poverty in America, 1991 CLEARINGHOUSE
REV. 337, 345 ("During the 1970s [the] demographic shift to more single-parent families was the dominant force in pushing child poverty upward.").

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In earlier work I argued society should focus on the needs of

nurturing units exemplified in the caretaker/dependant diad. Resorting to metaphor, I have offered the mother/child unit-the
prototypical nurturing unit-as a substitution for the husband/wife
unit--the sexual family affiliation-as the core or basic family paradigm.' This would provide the ideological justification for a
transfer of societal subsidies (material and ideological) away from
the sexual family to such nurturing units.
In spite of the strength of this appeal for redistribution of family subsidies away from the nuclear family, based as it is on empirical evidence about the need for and the assumption of caretaking, I
have had to confront the difficulties presented by the primacy of the
natural family in structuring our thinking about intimacy.
Reconceiving family and welfare law so as to support caretaking as
the intimacy norm would require major ideological shifts in the
ways in which society thinks about families inside and outside of
law. Such massive social and cultural rethinking is not likely to
occur quickly or easily.
With the designation of the family as the social institution to
which the inevitable dependency of the very young and, sometimes,
the elderly and ill is automatically referred, the magnitude and
nature of dependency can be confined and thus hidden and ignored."1 In this regard, the family from an economic and sociological perspective functions as a complementary institution to the
state, alleviating it from direct economic responsibility for its citizens.
This important (some would say essential) societal function
assigned'to the nuclear family is seldom considered in discussions
about the structure's persistence as an ideological and political
ideal. The fact that the allocation of inevitable dependency to the
family is premised on its having a specific structure-the continuation of the historic, essential division of labor within the family-should be of central concern in policy discussions.3 2

30. See supra note 9 and accompanying text (discussing" the traditional legal
definition of family relationships).
31. See Fineman, Intimacy Outside of the Natural Family, supra note 17, at
961-63.
32. This gendered division of labor, the dominant casting script for family stories, is built upon gender ideology that historically confined women to the 'private"
or family sphere, thus making them directly bear the burdens of intimacy and dependency in our society; men, as fathers and husbands, may have the corresponding
responsibility of economic support.

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V.

403

CONCLUSION

The "family" as a legal, functional, and symbolic institution in

America is based on an unarticulated conception of an institution
governed and defined in natural law. That natural family in some
version is reproduced in all professional discourses. The family is
the unexamined backdrop in our society, not considered to be a
political institution, constituting the "private" as distinct from the
"public." It is an assumed institution that derives its value as a
foundational institution, providing a perceived essential background
for other social institutions.
The natural family thus has tremendous societal value which
helps to explain why it alone continues to serve as the only legitimate referent for our political and public discussions about intimacy, sexuality, and morality, as well as defining for us what are appropriate "family" policies and needed law reforms.
In fact, the tone and nature of debates about the family typically reveal that it is viewed as such a simple institution that a mere
reference to "the family" serves as a full definition of widely shared
values and norms. There is little real attention to the fact that the
family, as a complex, changing site of ongoing ideological struggle,
reflects basic divisions in our society. Much more than a mere backdrop for important, more "public" struggles, the family is a major
force in shaping our individual and collective attitudes and actions
in all areas of public and private life.'
Currently this "simple" institution is also viewed as an institution in trouble, which helps to explain why the family is an increasingly important object of study, generating federal grants and volumes of sociological and psychological as well as political and legal
literature, professional and popular discourses. These studies for
the most part replicate the same sets of assumptions: the basic

33. I have always been intrigued by the fact that even feminists seem to devalue the family as an object of study or theory. It certainly is discussed-it may be
treated as an impediment to women's self-fulfillment or as the site of pathological
early conditioning which must be overcome-but it is seldom addressed as a major
social institution worthy of serious intellectual or conceptual work. In fact, those of
us who do theorize the family as a complex and central social institution, and family
roles such as motherhood as having significant positive and powerful potential for
women, are in danger of being labeled "cultural" feminists, see Patricia A. Cain,
Feminism and the Limits of Equality, 24 GA. L REV. 803, 836 (1990), or assigned to
the bottom of the academic theoretical ladder (if we make a rung at all). The typical
feminist focus is on the individual, even if engaged in collective action. The intimate
interaction that seems favored is sex (further reinforcement for my points about the
centrality of sexuality to the way we think about intimacy in our society).

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[1993: 387

model is sound, merely in need of adjustment or minor modification.

The primary question proposed about families is "how do we get the
natural or nuclear family to work?" This limited line of inquiry has
had some serious policy implications for nonnuclear families. The
concept of a natural family, which by definition is functional, independent, and autonomous from government, has contributed to the
paradoxical situation where the family is both overvalued on a symbolic and metaphoric level at the same time as it is systematically
devalued in terms of the allocation of societal resources-both material and ideological.
In a variety of ways and contexts we continuously reinforce the
ideological dominance of the natural family. Given the lived realities in contemporary society, however, continued acceptance of this
ideal means that our discussions, laws, and policies have been
flawed and incomplete. If we consider it empirically, at best, when
we focus on the nuclear family either as an ideal (the natural family) or as the norm, we are addressing the circumstances of only
some intimate groupings in the United States.
The perpetuation of the mythical natural American two-parent,
nuclear family has functioned to exclude the problems and concerns
of nontraditional (often labeled deviant) families from political and
public consideration. Intimate entities that do not conform to the
form designated as natural in most instances are not considered
families at all. Such family entities are relegated to more symbolically laden categories of legal regulation than family law and thereby subjected to potentially more intrusive state regulation and intervention.34 Such state control is facilitated on political and policy

34. See Fineman, Intimacy Outside of the Natural Family, supra note 17, at
955, 958-61. The nature and extent of the state regulatory concern with nonnatural
family forms suggests that these families are considered "public" families for purposes
of justifying state control. Id. at 958. The designation as public legitimates setting
them aside for special, intrusive state manipulation in contrast to initially affording
them the protection of the assumption of privacy that attaches to traditional family
entities.
Furthermore, their designation as deviant has meant that the social and economic problems of single mother families, and hence the plight of many of the
nation's children, can be easily ignored. Fineman, Images of Mothers in Poverty Discourses, supra note 28, at 277. In this way, the nuclear family model has been instrumental in the active perpetuation of existing power relationships (particularly in
regard to gender and race) in American society. In the context of the treatment of
single mothers, the focus on family form obscures the economic deprivations which
make it difficult for single women to raise their children. Rather than addressing
their needs as single mothers, reforms take the form of attempting to coerce them
into a model of family life increasingly discredited, even in the middle class from
which it arose. Id. at 295. The dominance of family imagery contained in the ideology of patriarchy has required rejection of economic subsidies which would truly sup-

No. 2]

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405

levels because the characterization of deviance that accompanies the

determination that a family form is not natural allows legislators
and policy makers to place such entities in a different category than
traditional families.
Furthermore, without substantial rethinking of what constitutes the natural family, the condition of women is unlikely to improve significantly. Aspirational laws or rhetoric aside, social structures and cultural and ideological forces establish the norm that
burdens created by dependencies must be assumed by the private
family. In this context, given the historic role assignments, our
traditional family narrative paints a bleak picture for women and
their dependents.

port single mother families. Instead, our adherence to the belief in the natural family
demands that single mothers' deviation be punished and deterred, their practice of
resistance curtailed.