A Family Like any Other Family: Alternative Methods of Defining Family in Law

Introduction

  • Marjorie Forlini and Sandra Rovira lived together for over twelve years with their two sons from Rovira’s previous marriage. They considered themselves a family. In 1977, Forlini and Rovira formalized their relationship by exchanging rings and vows in a cere- mony before their friends and relatives. Though she had no biologi- cal ties to their children, Forlini participated in their upbringing and declared them as dependents on her tax returns. After Forlini’s death in 1988, Rovira sought surviving partner’s benefits from Forlini’s employer. She was denied payment based on their lack of legally-recognized ties.
  • Ninety-three-year-old Henry Pittman died in 1986, after sharing an apartment for twenty-five years with Annette Baxter and her son Jimmie Hendrix. Though at first Hendrix was only a boarder in Pittman’s home, he and his mother quickly began living as a family with Pittman. Since neither was legally related to Pittman, upon his death they faced eviction from their Harlem apartment. With the help of the Legal Aid Society, they challenged their landlord in court, where their household was held to have constituted a family unit, based on Judge Alice Schlesinger’s finding that their “relationship developed into one of devoted concern, sharing, trust, loyalty and love.”
  • Chris Florence, a twenty-three-year-old student in Lexington, Kentucky, is a bisexual man who lives with his female lover of sixyears and his male lover of three years. The group is open about the relationships they share with each other, but report that their family status is respected by neither their heterosexual peers nor the lesbian and gay community in which they are active. Florence is legally entitled to marry his female partner, but could not secure formal recognition of his relationship with his male partner. He points out that the legalization of gay marriage would not include legal protections for his family, since prohibitions against bigamy would still prevent their joint union.
  • Edna Freimuth, Winnie Honsinger, and Austin Lederer live together with eleven other elderly people in a large home in Ridgewood, New Jersey. In order to insure privacy, each resident has her own room within the household, though all share common kitchen and recreational space. Members of the household care for one another, and work together to take care of their home. Residents often act as family members; some refer to other residents as “sisters.” Winnie Honsinger, an eighty-eight-year-old member of the household, explains: “we are a family; we are compatible and enjoy living together.”
  • Paul and Jane, sixty and sixty-four, respectively, live together in a large frame house on the outskirts of a large suburban area. Though the two have been partners for over seven years and have an ongoing commitment to one another, they have never legally married. This lack of legal status serves to deny the couple many privileges accorded to wedded spouses, but both partners reject marriage as a required institution for intimacy. They note that a marriage license would add nothing to their commitment to one another. Paul reports “[w]e always know we’ll be together because we want to be together and not because any law says we’ve got to be.”

Do these creative forms of relationships constitute families? In recent years, defining what is meant by “the family” has become an increasingly arduous process. Families have long been viewed as among the most essential and universal units of society. This sense of the shared experience of family has led to an often unexamined consensus regarding what exactly constitutes a family. Thus, while “[w]e speak of families as though we all knew what families are,” we see no need to define the concepts embedded within the term.

The immediate connotation of the word “family” for most Americans would probably be quite similar to the one that the National Pro-Family Coalition adopted at the 1981 White House Conference on Families. The Coalition’s statement proposed that a family consists solely of “persons who are related by blood, [heterosexual] marriage or adoption.” Such a formulation usually exemplifies the “traditional” notion of family. Regardless of whether we accept this model as relevant to our own experience, its preeminence in Western societies has been clearly established.

The relatively universal recognition of a single normative conception of the family, however, has not prevented alternative descriptions of the institution from gaining acceptance. For example, the American Home Economics Association (AHEA) adopted a definition of family that explicitly rejects the traditional formulation and instead offers the following definition: “two or more individuals who share goals, resources and a commitment over a period of time.” The AHEA definition emphasizes its break with traditional interpretations, noting that “[t]he family is that climate that one ‘comes home to’ and it is this network of sharing and commitments that most accurately describes the family unit, regardless of blood, legal ties, adoption or marriage.”

Many groups of individuals within the same household could be accurately described by both of these formulations of family. It is nevertheless interesting to examine the ways in which they overlap and differ. The Pro-Family Coalition’s definition excludes committed relationships established by unmarried heterosexual partners and lesbian, gay, or bisexual partners, as well as any children in their relationships. Also left out of the Pro-Family Coalition’s definition are “marriages” or commitments among more than two adults and relationships between stepparents and stepchildren – even though such individuals might very strongly identify themselves as being family members of one another. By the same token, people closely associated by blood or marriage, such as parents of adult children, nephews or nieces, and so on, might not be considered family members under the AHEA definition if they do not sufficiently share their lives with one another or lack a conscious commitment to each other.

Of course, these definitions are not necessarily mutually exclusive. Many of the families recognized by the AHEA definition would fit within the Pro-Family Coalition guidelines, and vice-versa. But neither of these rubrics on its own incorporates every possible permutation of family, nor can any single formulation of family fully explore the social conventions and complexities upon which each is based. Each formulation uses the term “the family” without acknowledging its multiplicity of possible meanings. Moreover, no current definition recognizes the central distinction between “family” as a network of kin – that is, members of a larger extended family related by blood and marriage, also known as “family of origin” – and “family” as a nuclear unit, the “family of procreation” or “family of choice.”

Our general cultural notion of family arose in an era of little geographic mobility, and thus included those of whom we thought as kin and among whom we presumably lived. However, a shift in Western ideology has increasingly focused on the ideal living situation as the traditional “nuclear” family: two heterosexual married adult partners cohabiting with their biological or adoptive children. This is reflected by the fact that several of the present definitions of family elide the concept of kinship as a form of family; thus, “family” has in these instances come to indicate only “family of choice.” The existence of such definitions does not suggest that highly interactive relationships between families of choice and families of origin do not exist. Kinship networks often teach the social and cultural lessons that influence choices of central family members and forms, and in turn, the family of origin often shapes expectations of what kinship, partnership, parenthood, and other family connections should and will be.

The failure to acknowledge these differing intentions adds to the confusion around conflicting conceptions of family. For example, the Pro-Family Coalition definition seems to focus on kinship. Within its guidelines, family members include not only those in the nuclear family, but also grandparents, aunts, uncles, sisters-in-law, and so on, implying a whole extended network of relations. Moreover, the Pro-Family Coalition formulation makes no distinction among these relationships; thus, all ties based on blood, marriage, or adoption appear to be equally significant throughout a person’s lifespan. Conversely, the AHEA formula completely discounts the significance of kinship ties; according to this definition and ones like it, independent adult children might no longer be considered family members of the persons who raised them.

Clearly, any of these approaches on its own omits family ties which many people consider significant. This is probably not completely intentional. Perhaps the Pro-Family Coalition meant only to define the limits of kinship, with the expectation that such kin generally live together in nuclear units. It is equally possible that AHEA intended its formulation to emphasize what it considered to be the primary importance of individuals’ families of choice, with the understanding that kinship ties would not dissolve altogether, but rather take on less significance. Nevertheless, neither definition can embrace completely the broad range of our cultural conceptions regarding what constitutes a family.

This Note, while acknowledging the importance many of us continue to attach to both social formations, will attempt to untangle and illuminate the differences between the idea of kin and contemporary conceptualizations of”family,” that is, the nuclear family and its alternatives. An examination of the morass created by the conflation of these two concepts serves to bring into even sharper focus the fact that what constitutes “the family” has become a hotly contested political issue, with the primary battleground being the family of choice. Since this “central” family is the unit over which most debate occurs, this Note will most closely examine those ties. The comparatively voluntary nature of the formation of central families, as well as their primacy as a culturally sanctioned unit, makes the family of choice the major site of (potential) experimentation and redefinition of “the family.”

Our cultural ideology assumes that everyone should live in some form of nuclear family, and that the nuclear family is ideally suited to modem American society. Although this form of family has a long history, its primacy as an ideological construct is relatively recent. However, the nuclear family as a cultural ideal does not accurately reflect the reality of many families today, if it ever did. This disjunction between ideology and reality has fostered political challenges to the desirability of the nuclear family.

When the law has dealt with the family, it has often shown deference to conventional family ties. As the nuclear family gained preeminence, the law incorporated it as the basic cultural norm. This integration has increasingly come under fire as critiques of the nuclear family have developed. Moreover, the institutionalization of the nuclear family has had a damaging effect upon members of families whose relationships do not conform to this model, and thus go unrecognized by the law.

Therefore this Note explores the possibility of incorporating truly alternative and pluralistic family definitions into the law. Rather than searching for potential statutory changes, we must start by asking how we could reinvent a means of including multiple non-traditional family definitions in law if we were not constrained by current social and political reality, and if we were not limited by traditional conceptions of both the law and the family. This Note seeks to move in the direction of individually- or family-initiated definition of relationships, and away from formulations of family imposed by the state.

Part I examines the ways in which the ideology of the nuclear family gained preeminence. It also investigates the challenges to the primacy of the nuclear family by political and social movements for change. Part II discusses the effect that this unitary definition has on current family law and the relation of other family forms to the legal model. It evaluates the judicial expansion of legal definitions of family in case law, as well as proposed changes in current schemes offered by legal scholars. Finally, Part III explores possible means of introducing a much-needed sense of plurality of family forms within the law and discusses the ramifications of such a proposal. I do not wish to establish a single concrete plan in this area. To do so at this stage might serve to limit dialogue regarding potential approaches to incorporating recognition of a diversity of family forms. Instead, my purpose is to expand and encourage a discourse that can establish our ultimate societal goals, from which we can then begin to envision concrete solutions.

Suggested Reading

Book Excerpt: Kenji Yoshino, Speak Now: Marriage Equality on Trial

This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino

Cloning and the LGBTI Family: Cautious Optimism

In this article, I argue that, because reproductive cloning may offer the LGBTI community the chance to have genetically-related children, bans on federally funded research that would help refine and ensure the safety and efficacy of these procedures unconstitutionally deny