How feminism remade American family law (and how it did not)

Abstract

This essay uses the lenses of history and feminism to examine American family law past, present and future. The analysis highlights how family law’s two central organizing constructs, marriage and gender, have long provided a powerful draw for feminist theorists, critics and reformers. Their engagement helped to bring about groundbreaking shifts, represented by seven distinct twentieth-century changes in family law: the recognition of a right to privacy or liberty protecting reproductive decisions, the application of equality principles to invalidate gender stereotypes and also to repudiate disadvantages imposed on nonmarital children, the advent of no-fault divorce, the rise of the partnership understanding of marriage and its economic consequences, the emergence of legal responses to domestic violence, and the acknowledgment of family relationships based on function despite the absence of formalities.These developments stand out both for transforming family law from its Blackstonian past to its second-wave or liberal-feminist present and for paving the way to marriage equality—a development scarcely imaginable less than fifty years ago. After considering each of these seven changes and explaining their specific relevance to marriage equality, the essay takes a more critical turn. It invokes newer feminist approaches to expose the limitations of the last century’s reforms and looks ahead toward the work to be done by feminists in forging a family law of the future.