In the name of the family, the state has tried to encourage marriage for poor, single mothers yet denied marriage to homosexual couples. By terminating parental rights, the state denies certain adults the opportunity to raise their children, but the state has imposed parental obligations on others through measures such as child support enforcement. The state acknowledges the responsibility to educate all children but refuses to provide to all minors other important social goods, such as public assistance. Our policies toward families indicate any number of conundrums. In order to think more clearly about family law and policy, David Herring argues that we need to develop a deeper understanding of the public functions of the family, one with a healthy regard for the ways in which the family challenges and undermines the state.

The family supports the state, Herring notes, by raising children and socializing them to become good citizens. By providing care for dependents, the family frees the state from the obligation to provide such care and masks the true extent of dependency among citizens. These seemingly private activities draw individuals into the family, and the resulting loyalty and devotion dissuade them from seeking membership in other associations, groups that might challenge and undermine the state. Thus, even when it performs as a private entity, the family's tasks buttress the state.

Discussions of the family that consider only these facilitative functions, Herring worries, ignore the family's invaluable contribution to the rich associational life needed to sustain democracy and limit state power. Families also subvert the state. They produce individuals with diverse opinions, interests, and passions. In families children learn both the skills they will need to form and sustain associations when they are adults, and the crucial values of respect and tolerance for diversity essential for flourishing associations. When the state intercedes in families, it undercuts these lessons, teaching children that diverse associations are not to be tolerated and respected. State intervention also encourages uniformity and sameness, for families that deviate from the norm are viewed warily and suspected of not properly performing their facilitative functions, rather than respected for the diverse passions and interests they promote.

Herring argues that prevailing approaches to regulating the family cannot adequately protect both its facilitative and subversive functions. Sympathetic to the parental rights approach because it grants parents considerable discretion over children's lives and thus strengthens associational power, Herring argues that this doctrine gives undue weight to biological ties and can result in excessive intervention when the state privileges biological over associational connections. But in his view the dominant alternative, children's rights rhetoric, does not correct these deficiencies. Centered on the best interest of the child, children's rights rhetoric gives credence to an idealized view of the perfect childhood, one that calls on adults to make too many sacrifices for the good of the children. Emphasizing the family's role in raising good citizens, this approach favors the facilitative functions of the family, disregarding its vital subversive functions. In search of the best childhood, children's rights rhetoric legitimizes undue and excessive state intervention when parents fail to live up to expectations of proper childrearing.

Herring calls for a new paradigm to serve as the foundation for public policies and legal doctrines about the family. With greater appreciation of the family's subversive functions, this rhetoric of associational respect would understand the family as an important intermediate association crucial to the flourishing of other associations. Diversity in childrearing would be valued because it would contribute to a rich array of interests, opinions and passions among adults. The state would respect the integrity of the family association, understood as a collective group rather than a collection of individuals, and thus would be more cautious about intervening in its affairs. Integrity and respect for family associations would in turn lead to the tolerance and diversity essential for a vital civic society.

Herring's provocative analysis extends the concept of associations to families without fully considering the significance of the fact that families do not have many of the characteristics of associations. Members freely enter and exit associations, and within them, they are roughly equal. While members may grant more power and authority to a few participants, they do so through some form of democratic decision making and with the knowledge that when dissatisfied, they can either alter the organization or leave it. Certainly, applying these conditions to families is problematic. Minor children cannot enter and exit families. Nor do they, in most families at least, participate equally in major decisions about family life, even though those decisions may have significant effects on their life chances. While Herring recognizes the need for the state to provide minimal protection for children, his protections are precisely that: minimal. They would extend to abuse and neglect resulting in severe, disabling injuries. Perhaps restricting state intervention to such harms would make it possible for child welfare systems to operate effectively, but the widespread failure of child protective services suggests that these systems face fundamental problems, and lowering our expectations of their responsibilities may not improve them. While it may be fruitful at times to consider families as a collective rather than an assembly of individuals, the inequality among members of families, and particularly the powerlessness of children, should make us cautious about situating families as associations.

Herring wants a rhetorical paradigm concerning families that will foster the desirable goals of diversity and tolerance. His argument emphasizes limiting state power in order to achieve such diversity and values the family's role in masking dependency. His analysis does not challenge prevailing assumptions about dependency and gives little weight to the need for public support of families to enable them to flourish. When children have difficult lives, he claims, many will be stronger and more interesting as adults. Perhaps some will. But others will see their life chances limited, their opportunities for education restricted, and their ability to compete fairly for social and material rewards curtailed. Our associational and civic life may be impoverished rather than enriched by deprivation and widespread inequality. Families need more than to be left alone to flourish.