The Genuine Article: A Subversive Economic Perspective on the Law\u27s Procreationist Vision of Marriage

This Article provides a new perspective on the image of marriage that has emerged from the same-sex marriage debate. However flawed, the procreation rationale has enjoyed overwhelming success in recent same-sex marriage litigation. However absurd, the idea that same-sex marriage is a species of counterfeit has become so commonplace in the rhetoric surrounding same-sex marriage that it nearly escapes our notice. This Article argues that while neither the procreation rationale nor contemporary counterfeiting rhetoric makes much sense when considered in isolation, both make a great deal of sense when considered in concert. To that end, this Article looks at the historical casting of non-normative intimate relationships and reproductive practices (sodomy and miscegenation) in subversive economic terms (counterfeit) in order to explain the highly influential procreation rationale for same-sex marriage prohibitions. It ultimately suggests that the image of same-sex marriage (and same-sex reproduction) as a fraud that has emerged from the same-sex marriage debate, and from recent same-sex marriage litigation, brings us back full circle to sodomy and links up with the imagery of disgust that once surrounded sodomy regulation and the legal treatment of sexual orientation minorities through Lawrence v. Texas. It also suggests that the law’s procreationist vision of marriage might be viewed as at once hopelessly restrictive and daringly liberating

The New Maternity

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers. Constitutional law\u27s logic of maternal certainty and paternal uncertainty invites criticism for many reasons. It channels the notion that pregnant women are presumptive mothers. It perpetuates questionable stereotypes about mothers and fathers. It determines who can be a parent and how he, she, or they ought to parent. It is in serious tension with constitutional law\u27s disestablishment idea. For all of these reasons, constitutional maternity warrants reform, and one promising pathway of reform is family law\u27s less regressive and more multidimensional vision of motherhood. Never as uncomplicated as the Supreme Court has assumed, maternity has become considerably more complex in light of the new forms of kinship enabled by alternative reproduction and its legal accommodation. During the exact time that the Supreme Court has insisted that women and men are inherently different because of maternal certainty and paternal uncertainty, state family law has painted a more complicated picture. Maternity, that picture suggests, often is uncertain and nonobvious. It often is relative. Like paternity, it often is a matter of opinion - judicial opinion. Most remarkably, state family law has shown that maternity is all of these things by relying on the same body of federal constitutional doctrine that insists that mothers and fathers are fundamentally different - and fundamentally different because mothers, unlike fathers, are basic, singular, and monolithic. This Article argues that progressive advances surrounding the new maternity ought to unsettle regressive tendencies surrounding constitutional maternity. These regressive tendencies touch and burden many: from unmarried fathers and transgender individuals to nonbiological and biological mothers. This Article imagines what the new maternity emerging from family law would mean for constitutional law. The idea that the new maternity could unsettle constitutional maternity is not necessarily radical - that project has been unfolding in state courts for years. The consolidation of the new maternity in constitutional law, however, could have meaningful consequences both within and beyond the law of parenthood, destabilizing everything from parentage regimes that rest on the notion of essential biological difference to the argument that transgender discrimination is not illegal because sex is not a stereotype. [P]ater semper incertus est. [M]ater certissima est. ([T]he father is always uncertain. [The] mother is very certain.) - Roman law of parentage Maternity is a matter offact. Paternity is a matter of opinion. - American proverb [M]aternity is never uncertain. - Gossett v. Ullendorff We really have no definition of mother in our lawbooks .... Mother was believed to have been so basic that no definition was deemed necessary. -Judge Marianne O. Battan

The New Maternity

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers. Constitutional law\u27s logic of maternal certainty and paternal uncertainty invites criticism for many reasons. It channels the notion that pregnant women are presumptive mothers. It perpetuates questionable stereotypes about mothers and fathers. It determines who can be a parent and how he, she, or they ought to parent. It is in serious tension with constitutional law\u27s disestablishment idea. For all of these reasons, constitutional maternity warrants reform, and one promising pathway of reform is family law\u27s less regressive and more multidimensional vision of motherhood. Never as uncomplicated as the Supreme Court has assumed, maternity has become considerably more complex in light of the new forms of kinship enabled by alternative reproduction and its legal accommodation. During the exact time that the Supreme Court has insisted that women and men are inherently different because of maternal certainty and paternal uncertainty, state family law has painted a more complicated picture. Maternity, that picture suggests, often is uncertain and nonobvious. It often is relative. Like paternity, it often is a matter of opinion - judicial opinion. Most remarkably, state family law has shown that maternity is all of these things by relying on the same body of federal constitutional doctrine that insists that mothers and fathers are fundamentally different - and fundamentally different because mothers, unlike fathers, are basic, singular, and monolithic. This Article argues that progressive advances surrounding the new maternity ought to unsettle regressive tendencies surrounding constitutional maternity. These regressive tendencies touch and burden many: from unmarried fathers and transgender individuals to nonbiological and biological mothers. This Article imagines what the new maternity emerging from family law would mean for constitutional law. The idea that the new maternity could unsettle constitutional maternity is not necessarily radical - that project has been unfolding in state courts for years. The consolidation of the new maternity in constitutional law, however, could have meaningful consequences both within and beyond the law of parenthood, destabilizing everything from parentage regimes that rest on the notion of essential biological difference to the argument that transgender discrimination is not illegal because sex is not a stereotype. [P]ater semper incertus est. [M]ater certissima est. ([T]he father is always uncertain. [The] mother is very certain.) - Roman law of parentage Maternity is a matter offact. Paternity is a matter of opinion. - American proverb [M]aternity is never uncertain. - Gossett v. Ullendorff We really have no definition of mother in our lawbooks .... Mother was believed to have been so basic that no definition was deemed necessary. -Judge Marianne O. Battan