Family Ties: What do we think?

Over at Prawfsblawg, Dan Markel, Ethan Lieb, and Jennifer Collins have put up their "intro freaky post" describing their recent book project, "Privilege or Punish."  As much as I like the authors, I have to agree that the post -- and, indeed, the project -- is kind of "freaky."  Here's a bit:

we basically claim that the state should exercise substantial caution and indeed hostility to most attempts to distribute these benefits or burdens based on one’s family status. This is a controversial stance, but we conclude that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one’s family ties or responsibilities.

Moreover, even when the criminal justice system does not suffer in terms of its ability to reduce crime and to impose accurate and adequate punishment, the signals of such family ties, burdens, and benefits are often expressly denigrating the lives of those who don’t live by the rules of a heterosexual and repro-normative conception of family life. Our view is that a criminal justice system in a liberal democracy has to be especially careful about sending these messages of denigration and inequality through its most awesome instruments of power, coercion, and condemnation.

To be sure, we might think the law does a bad job, in specific instances, of taking account, in an appropriate way, the reality -- and it is a reality -- that persons are situated in families, which are themselves natural human societies.  But it is not at all clear to me what it would be about any attractive conception of "liberal democracy" that should make it the case that the state not only should not, but may not, take account of, and appropriately respect and protect, this reality.

 

Thoughts?