Friends Rise Up!

Washington University law prof Laura Rosenbury has posted a working draft of her paper, "Friends With Benefits?"  (HT: PrawfsBlawg)  I have not yet read the paper, but she appears to be tackling a frequently overlooked bastion of nefarious discrimination: our legal system's willingness to privilege marriage over friendship.  Here's an excerpt from the introduction:

This Article [argues] that family law’s focus on marriage and marriage-like relationships, whether they be opposite-sex or same-sex, serves to perpetuate gender inequality. This existing focus implicitly privileges domesticated sexual relationships over other adult intimate relationships, namely friendships. Legal recognition and support is therefore provided to certain types of caregiving relationships but not others. Although such privileging may be obvious, because marriage is placed within the purview of family law and friendship is placed without, family law scholars have not examined the effects of family law’s recognition and support of marriage and marriage-like relationships and its silence about friendship.

This Article examines those effects, concluding that family law’s silence about friendship likely impedes the achievement of full gender equality in two related ways. First, the silence maintains a divide between marriage and “mere” friendship, implying that friendship is sufficiently different from marriage and marriage-like relationships to be properly outside of family law’s concern. It is unclear whether this view conforms to people’s lived experiences, although the very fact of legal recognition is a salient difference between friendship and marriage. Lived experience can thus be shaped by family law’s focus on marriage and silence about friendship. Second, this divide is not gender neutral, but rather amounts to state support of the types of domestic caretaking that traditionally played a vital role in maintaining state-supported patriarchy and that still largely follow gendered patterns today. Therefore, family law’s focus on marriage to the exclusion of other forms of friendship can perpetuate gendered patterns of care by encouraging people to prioritize sexual, domestic relationships over other relationships.

I have to admit that my confidence in our ability to extend legal recognition to committed same-sex couples without abandoning the legal significance of family is consistently undermined when I read modern family law scholarship.

Rob