Margaret F. Brinig's latest book will interest all those who study public policy and law dealing with families in the United States. Brinig is a prominent scholar in the field of law and economics at Notre Dame Law School; Family, Law, and Community builds on Brinig's earlier book, From Contract to Covenant: Beyond the Law and Economics of the Family (2000). There, she argued that while many of the activities of family life can be usefully analyzed as market activity, others are better understood as covenant relationships (in which obligation endures even if one side violates an agreement). In Family, Law, and Community, Brinig seeks to identify those factors that produce permanence, unconditional love, and the mutual involvement of the family in the community and of the community in the family. Although I share Brinig's aspirations for stability, responsibility, and vibrant voluntary communities, I find her argument that these will best be achieved by “maintain[ing] the status quo” (p. 201) unpersuasive. The status quo is at odds with Brinig's declared commitment to equality regardless of race, sexual orientation, and gender, and it slights measures that seem to me crucial to enable people to form and fulfill the responsibilities of family relationships. I hope this review of Brinig's provocative work will draw others into a conversation about how to achieve a world more hospitable to families.
Let me add a note about that conversation. Family, Law, and Community reveals a lack of direct engagement between law and economics scholars and feminist theorists even when discussing the same issues respecting families. Brinig cites few feminist scholars, while I (a feminist political theorist) am unfamiliar with many of her sources (a lacuna I intend to remedy). The sensation of academicians talking past one another is discouraging. I regret my inability to engage details of Brinig's empirical studies. At the same time, I regret Brinig's failure to engage or discuss the most significant opposing positions on such issues as same-sex marriage and gender equality. This limits the vibrancy of her argument and the persuasiveness of her policy proposals. Let me try to illuminate the “big issues” this important book raises.
Brinig's discussions of cohabitation, divorce, same-sex marriage, and gender equality illuminate the contours of her argument and reveal the tensions that threaten its coherence.
Cohabitation, in Brinig's eyes, is a poor substitute for marriage because it does not bring stability to family relationships. Cohabiting couples stay together for a shorter period than married couples, even when they have children. Domestic violence is more frequent in cohabiting than marital relationships (pp. 15–17). Brinig fails to establish, however, that these correlations are causally related. Brinig also insists that whether a couple stays together is influenced by the recognition and respect that society and the communities to which they belong extend to their relationship. While “marriage now serves as an important signal that a person is committed,” cohabitation sends a “fuzzy” signal (p. 12); cohabitation deprives the couple of the social recognition that helps the couple weather hard times, work things out, and stick together. Brinig does not suggest anything as drastic as laws against fornication or cohabitation, but argues that public policy should not extend benefits given to married couples to cohabiting couples, and should support programs that promote marriage (like the federal marriage initiative).
Her desire that relationships be long term—life long if possible—leads Brinig to advocate stricter provisions for divorce, including repeal of “no-fault” divorce laws and the reinstatement of fault grounds, and for the kind of “covenant marriage” now available in Louisiana.
Despite these positions, Brinig differs from most in the marriage movement because she favors (or at least does not oppose) same-sex marriage (it is actually hard to tell what her position is), and favors gender equality (although if people chose to follow traditional gender roles, it appears that she would not object). Because Brinig thinks that community recognition of and support for relationships should precede legal recognition, she does not enthusiastically embrace same-sex marriage, but on the other hand, she believes that the Constitution may require state law to allow such marriages: “Governments should not rush to legalize or create status (without constitutional reasons for doing so, as some courts have found for same-sex couples) for relationships before these relationships are likely to have societal support” (p. 48). I long for Brinig to share more directly her intellectual wrestling with contradictory loyalties to traditional social norms on the one hand and the Constitution on the other. Is it only the Fourteenth Amendment's guarantee of equal protection and due process that leads Brinig to accept relationships that society at large may look at askance—including mixed-race and same-sex unions—or should we support these couples because their love deserves protection regardless of a constitutional mandate?
Similarly, I want to hear more about how Brinig squares her commitment to gender equality with her policy and legal recommendations to stick with the status quo. As she is fully aware, traditional marriage law reflected a deeply gendered view of both family and larger society. As numerous scholars have shown with regard to both race and sex, applying antidiscrimination rules is not sufficient to alter distributions of social power. How are we to move from current inequitable social arrangements to a more equitable future?
One pathway forward is found in the list of policy recommendations with which Brinig concludes the book. She suggests that “spouses should be encouraged to work out their own arrangements for housework, child-care, and labor force responsibilities,” and adds that “family friendly policies should be made more attractive in the workplace, and care should be taken to police gender discrimination in the paid labor force” (p. 202). How family-friendly policies are to be made more attractive deserves attention from all those who want to strengthen family relationships. At present, social and economic arrangements in the United States convey the message that family well-being is a private responsibility. We have almost none of the supports found in European countries for parents and children. One exception is public education for grades K–12. Another is the Family and Medical Leave Act, which stands almost alone in US public policy as a statement that caregiving relationships are important enough to require employers to give workers unpaid leave time to engage in caregiving.
Women disproportionately bear responsibilities for housework and childcare, and this perpetuates their vulnerability within the family and the larger society. It is not no-fault divorce or extending benefits to cohabiting couples that conveys a message of disregard for the permanency and value of family relationships, but the daily lack of accommodation of caregiving.
Brinig's conviction that families are better able to provide stability and unconditional love when the surrounding community values family life and supports it is correct. The way to make that support palpable to those who enter committed adult and parental caregiving relationships is, in my view, not to circle the wagons around the heterosexual couple and their children, but instead to adopt public policies that convey the message that caregiving relationships are significant to adults, children, and society as a whole. All those who enter into relationships of caregiving assume enormous responsibilities; policy must play a role in providing the social context and services necessary to make caregiving not only possible, but also rewarding. I hope that Brinig agrees with this, and will develop what is a passing suggestion in Family, Law, and Community into a fully developed brief for pro-family policies.
