The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies

Martha Albertson Fineman

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781136654909
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Calling for nothing less than a radical reform of family law and a reconception of intimacy, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies argues strongly against current legal and social policy discussions about the family because they do not have at their core the crucial concepts of caregiving and dependency, as well as the best interests of women and children. The Neutered Mother scrutinizes the definitions of family and mother throughout the volume while paying close attention to issues of race, class and sexuality. In addition, Fienman convincingly contests society's refusal to dignify, support and respond to the needs of caregivers and illustrates the burden they must bear due to this treatment. This book is a crucial step toward defining America's most pressing social policy problems having to do with women, motherhood and the family.

1 Introduction

DOI: 10.4324/9781315021744-1

THIS BOOK CONTAINS both a critique and a vision. The critique examines the cultural and legal processes in which the sexual-intimate connection has been designated as dominant in the construction of family—husband and wife established as the core intimate relationship around which law, politics, and policy revolve. The critique is the product of a long analytic, conceptual, intellectual, and personal struggle with the limitations of current family law that have made me reflect on the ways in which our society validates and defines appropriate intimacy. The vision is the result of a much shorter process, but it has evolved as the limitations of the traditional ways of thinking about family intimacy became clearer.

I Three Vignettes

There are three stages to my thinking on these issues, which can be captured in three vignettes. The first has to do with my experience during the late 1970s as a Commissioner on the Madison Wisconsin Equal Opportunities Commission during the time when an Alternative Family Ordinance that would confer some benefits and protections on nontraditional families was first suggested in that city. In the process of considering the Ordinance, I wondered why “alternative” families were only conceived of by the other Commissioners in forms that mimicked marriage—unmarried, monogamous, “committed” heterosexuals or same-sex couples. I suggested that alternatives not be exclusively defined in terms of two adults with or without their children; what about plural sexual groupings or nonsexual intimate connections?

I argued that heterosexual monogamous pairings failed to reflect the situations of many groupings that functioned as families. I objected to sexually affiliated couples being valorized as the new norm. Only relationships that could be analogized to marriage stood a chance of inclusion within the protection of the Alternative Family Ordinance. The Commission had an opportunity (at least in my mind) to really rethink the concept of the family and to ensure protection for many different types of alternative formations. It failed to rise to the task, suffering instead from a collective failure of nerve and imagination.

Some Commission attention was diverted by the (politically) threatening prospect of proposed recognition of polygamy and polyandry, but even my concern with the nonsexual affiliates was not sympathetically received. I was at that time particularly concerned with the refusal to accommodate the dependencies of many “adult” children (those over the age of 18 years, in most jurisdictions). Many children older than 18 live at home with a parent or parents in “dependent” relationships, yet our alternative family model would not reflect or accommodate that dependency by ensuring they could not be dropped from family insurance coverage, for example. Furthermore, I argued that many people assume responsibility for aging parents, some of whom—though dependent in some aspects—might live separately or be able to provide substantially, though not completely, for their own support. These dependencies were also ignored in a system that assumed the nuclear family paradigm.

These nonsexual relationships would not obviously be counted as “family” under the proposed Ordinance for purposes of deciding who was entitled to benefits such as insurance coverage or tax consideration. These dependencies were not organized nor understood by the Commissioners as the functional or symbolic equivalents of marriage: they were not based on sexual affiliation and therefore were not ipso facto included in the conceptualization of what constitutes an appropriate “alternative.”

It was at this point that it first began to be clear to me that, for even the most “progressive” among us, the “family” has at its core a sexual tie. We may not articulate our premises, but the “sexual family” has been invested by our culture and society with exclusive legitimacy—it is the foundational institution (these concepts are developed more fully in chapter 6). The sexual tie may not be one formally sanctified by marriage, or may be one that exists between members of the same sex, but even in our “modern” thinking, sexuality is central to our understanding of intimacy and family connection.

Several years later, a second event reinforced that initial insight into the nature of our societal understanding of intimacy. The sexual formulation of intimacy also determined the direction of the discussions about faculty retention at the university where I was teaching at that time. The proposed plan was to institute a spousal retention program in which other departments and schools within the university would be given financial and other “incentives” to hire the spouses of those “star” faculty who were sought to be hired or retained. Of course, this being the mid-1980s, there was pressure to expand the definition of what constituted a “spouse” along the same lines as those described above in regard to alternative families—including same-sex and nonmarried heterosexual couples.

I raised a fundamentally different question about the politics of incentives with my suggestion that the faculty-retention policy also address the need to provide and care for children. I suggested that we provide incentives to stay by granting scholarships to the university or private school tuition for the children of faculty we were in danger of losing. Given the relatively low salaries at that state school and the increasing costs of education, it seemed to me a significant way to tie someone to the institution. This suggestion was received as outlandish, a dismissal I still do not entirely understand. I would predict that there would be relatively few situations in which “parental-faculty retention” would come into play. In addition, and in contrast to a spousal retention program, a child subsidy system anticipates that the university’s obligation would last only a limited time. It would also be much less costly on a yearly basis, given that tuition is typically far less than salaries.

Furthermore, I had some conceptual problems with the whole idea of spouse/faculty retention policies—those responding to faculty members’ claims that if “spouses” were not appropriately accommodated within the university in some capacity, they would leave. Marriage is a relationship easily terminated. Parent-child ties, by contrast, tend to last—they are not as fragile in our contemporary society. Someone’s spouse could be hired and within a year or so separate from and/or divorce the retained faculty member, thereby severing family ties but keeping their university ones. Could one assume that, in this case, the retained faculty member might also form a new relationship with another (perhaps, younger) person who would need to find local employment, thus beginning again the university’s search for accommodation if the “star” faculty member was to be retained?

I was intrigued by the policy that recognized only sexual affiliation as worthy of subsidy and incentive. It made no sense that it is the most tenuous, least permanent, of our intimate relationships that is afforded the most significant and privileged position in both public and private institutions—subsidized on both ideological and economic levels. Certainly the law both reflects and facilitates this.

With these experiences in mind, I began teaching family law in the mid-1980s. The third situation that confirmed for me the hold of sexual affiliation on our thinking were the responses to an exercise I developed in 1990 to focus my students’ attention on questions of the social construction of the core family connection and the creation of deviancy.

During the semester, I ask my students to define for me and themselves what they believe to be the “core family unit.” I use the concept of “core” to describe the configuration below which one no longer imagines there is a “family,” attempting to get the notion of a primal or basic unit. I suggest there may be alternatives to the traditional nuclear image of husband/father, wife/mother, and child, bound by a conglomeration of blood and legal bonds. What about two adults? Is it necessary that there be children in order to call something a family? Is it even necessary to have more than one person for the label to apply?

A few students venture that marriage, formal and celebrated the way it has been for generations, is the basic building block of family formation and that it should remain so. Others are quick to point out that formality should be irrelevant and that couples not legally tied together can, nonetheless, constitute a family. They often feel this is particularly true when there are children.

What seems to occupy my students’ attention (and, I might add, passion) is the issue of whether informal, nonlegal relationships should be considered the equivalent of marriage for the purpose of defining a family. Sometimes there is a debate about how “far” to go in equating informal relationships with marriage. Heterosexual unions are the easiest analogy, but some students have difficulty with same-sex relationships.

About this point in the class debate, I suggest that, instead of trying to fit more and more relationships into the legal space that marriage occupies by asserting that they are entitled to the same set of privileges and protection as marriage, we abolish marriage as a legal category. In other words, I suggest that all relationships between adults be nonlegal and, therefore, nonprivileged—unsubsidized by the state. In this way, “equality” is achieved in regard to all choices of sexual relational affiliations. I suggest we destroy the marital model altogether and collapse all sexual relationships into the same category—private—not sanctioned, privileged, or preferred by law.

My “reform” is, of course, far more radical than just the removal of formality attending the formation of family. It addresses the nature of the way individual intimacy is understood in our society and legal culture. To illustrate this, I return to the initial question, identifying the core, primal, basic family affiliation. I tell my students at this point that I define my core unit as mother and child. Typically there is silence, perhaps some laughter (in disbelief?), and, eventually, the inevitable response, “But that’s sexist—it excludes men.”

“Why,” I respond, “do you think that men’s major, definitive role in the family is only expressed in terms of their sexual affiliation with women? Don’t men also find their places within the unit as sons, or as a mother’s brother, as uncles to her children? What about grandfathers? Why are you disturbed by a paradigm that challenges the way we typically think about intimacy between men and women—a vertical rather than a horizontal tie; a biological rather than a sexual affiliation, an intergenerational organization of intimacy?”

I continue by pointing out that in defining a core family unit, what has happened is the creation of a norm, a baseline. It does not mean that other adult family characters are excluded: fathers, or nonprimary caretakers who have sexual affiliation to the primary caretaker, are certainly free, under my model, to develop and maintain significant connections with their sexual partner and her children if she agrees to such affiliation. The mother may also wish to forge ties and relationships with nonsexual affiliates.

Under my intimacy scheme, however, single mothers and their children, indeed all “extended” families transcending generations, would not be the “deviant” and forgotten or chastised forms that they are considered to be today because they do not include a male head of household. Family and sexuality would not be confluent; rather, the mother-child formation would be the “natural” or core family unit—it would be the base entity around which social policy and legal rules are fashioned. The intergenerational, nonsexual organization of intimacy is what would be protected and privileged in law and policy.

The purpose of this exercise is to help my students understand that our definition of a core, primal family unit is also a definition of deviancy. Those configurations that cannot be analogized—that fall below our ideological (and emotional) minimum—will not be considered “normal” families entitled to privacy and respect. They will be cast as deficient and therefore will be at risk of more direct and intrusive state regulation and control—even sanction and prohibition. I hope that this exercise makes my students think about their firmly entrenched beliefs about what is “natural,” “desirable,” and, hence, defensible in regard to the institution of the family.

This book is a further attempt to grapple with these issues. It reflects my conviction that legal regulation is grounded on societal beliefs and expectations that continue to reflect unexamined gendered politics, policies, and practices. There have been massive structural changes during the past several decades in the ways many of us live our family lives. We have created, then valorized, new patterns of family formation, holding them out as the equivalent (moral and/or functional) of traditional marriage. But the tenacity and vitality of our inherited beliefs or ideologies about the family has meant that the changes are in some ways superficial—merely altering form, while leaving aspiration and expectation undisturbed. Our ideological understanding of the functioning and societal role of the family (whatever its form) has not undergone much transformation.

This book is also an exploration of the extent and tenacity of the ideological components of patriarchy and their role in the construction of gender as reflected in law and policy. The exploration results in a pessimistic assessment of the possibility for more than superficial changes in the social construction of the family and the functions it is designated to perform in its relationship to the state. We seem destined to perpetuate the old mistakes even if they are cast as “reforms.”

II Family As Usual

On a general level, the public and political rhetoric about families retains predictable orthodoxy. We all shun the characterization of “deviance” and seek to align ourselves and our behavior with the safety of normalcy. Some may accept, even embrace, altered norms of family formation and functioning but still resist the application of ideological labels to their personal experiences. Thus, women who support equal rights at work and are unhappy with the unequal burdens they bear at home are careful to indicate that they are not “feminists.” At the same time, many of those brave enough to live “alternative lifestyles” still struggle to analogize their situations with the traditional norm—as “marriage-like.” This strategy of attempting to expand the categories of the “normal” has limits. Categories can only be stretched so far and retain credibility. Moreover, as the 1992 presidential campaign rhetoric illustrates, the backlash of the traditionalists has been mounted and is vicious, as the family is openly designated as a site of cultural embattlement.

The attacks on “family as usual” have been vigorous as social movements such as feminism and groups organized around issues such as children’s “rights” have addressed the exploitative potential of traditional roles and patterns of dominance. Proponents of a different type of family functioning, largely professional and educational elites, have successfully recast the modern family as nonhierarchical—expressing an egalitarian ideal. But, even when newly crafted societal aspirations have been reflected in reforms to traditional laws, they have not heralded changes in practice. In spite of the significant rhetorical reorientation of family law, the functioning family remains the most gendered of our social institutions. The new family formations merely replicate old concepts and beliefs and there is little fundamental challenge to the ways we think about the institution of the family and its relationship to society. Shared societal presumptions about the naturalness and inevitability of existing gendered role definitions and divisions continue to be pervasive.

There is a great deal of attention in this book to the creation and perpetuation of this ideology. Definitions and discussions of patriarchy as ideology are central to the theoretical positions developed about motherhood and the primacy of sexual affiliation. The basic message is that, from the perspective of law reform, the role of ideology is conservative. Our individual experiences are structured and reinforced by discursive structures (including law) that surround us, defining the contours of our everyday lives. These unexamined constructs reflect ideological concepts that act as limitations on our imaginations.

The articulation of the issues, as well as the re-visioning of the societal purpose of the family and the role of family law that concludes this volume, grew out of my frustration with the ways in which our laws organize and regulate intimacy. However, this book—although ostensibly focused on the regulation of family relationships—is concerned with more than mere legal rules and legalistic reasoning. Consequently, the next two chapters include some historical material on the development of contemporary debates about intimacy and families in feminist legal theory. I consider the many ways in which our lives are “gendered” in American society and argue for some accommodation of relevant differences. I also reflect on the limitations of law as a major tool for societal transformation. Subsequent chapters specifically address the title concepts of “neutered mother” and “sexual family” as well as develop the myriad “tragedies” inherent in the way our society casts and contains intimate connections.

In the final chapter of this book, I propose the end of family law as we know it with the suggestion that marriage be abolished as a legal category. I offer a utopian re-visioning of the family—a reconceptualization of family intimacy that redefines the legal core unit away from our current focus on sexual or horizontal intimacy. My vision of the appropriate core family unit for purposes of law and policy may anger and alarm many readers. Troubling to some feminists in particular will be the fact that in redefining familial intimacy and the role of law I develop two different archetypes of dependency that have gendered as well as policy implications.

“Inevitable dependency” is the term used to describe the status of need for caretaking embodied in the young, many of the elderly and disabled, as well as the ill. “Derivative dependency” results because the caretaker is dependent on external resources to fulfill the caretaking role. The relationship between these two types of dependencies is exemplified in this book by the metaphor of Mother/Child—the intimate connection to be protected and subsidized by state policy and law in my scheme. This caretaking dyad would replace the historic dyad of the heterosexual married couple as the core intimate family unit upon which family policy and law are constructed. ¹

Although I know it is destined to be misunderstood, I...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Dedication
• Acknowledgement
• 1 Introduction
• Part One—Concepts and Constucts
• Part Two—The Neutered Mother
• Part Three—The Sexual Family
• Part Four—Other Tragedies and Utopian Visions
• Index