Introduction: After Legal Equality

Introduction: After Legal Equality Robert Leckey In Robert Leckey (ed), After Legal Equality: Family, Sex, Kinship (Routledge, 2015) Groups seeking equality sometimes take a legal victory as the end of the line. Once judgment is granted or a law is passed, coalitions disband and life goes on in a new state of equality. For their part, policy makers may assume that a troublesome file is now closed. This collection, and the larger project of which it is part, arises from the sense that law reforms made under the banner of equality invite fresh lines of inquiry. For example, such reforms may worsen the disadvantage of other groups, as where recognizing same-sex couples can indirectly intensify distinctions by race or class. Redrawing the lines of legal ‘family’ might also further marginalize non-normative caring and kinship networks. Moreover, legal reforms in equality’s name may in unintended ways harm even their intended beneficiaries. Efforts to protect religious women from patriarchal practices, for example, may undermine their religious freedom and deny their agency. These matters are complex and cut across different social fields. Addressing them can be uncomfortable. But scholars, civil-society organizations, and policy makers need to know about them. To be sure, compared with situations in which there is nothing akin to equality (see e.g. Kondakov 2013), the state of affairs ‘after legal equality’ may appear to be less urgent. At least at first blush, it is not a matter of life and death, although some argue that gay-rights projects collaborate in the uneven distribution of life chances (Haritaworn et al. 2014; Spade 2011). Considering the questions raised in this collection is nevertheless important in order to ensure that change in the name of legal equality does not perpetuate disadvantage or stall social change. Whilst some scholarly projects arise from a grand idea, my inspiration for this collection and the preceding workshop emerged by induction from small, concrete cases. In 2007, the Court of Appeal in my home jurisdiction of Quebec ordered two former lesbian partners to share the custody of girls of whom only one was the legal mother, by adoption. Had it been possible at the time, the women would have adopted the girls together. Although under the province’s civil law the children had only one ‘mother’ - the other woman being a legal stranger towards them - the 1 Electronic copy available at: http://ssrn.com/abstract=2711337 judges used the everyday language of family, referring to the children’s ‘two mothers’.1 I wrote favourably about that approach and result, characterizing it as ‘a judicial willingness to make space for manifold existing forms of family’, an attempt to bridge the gap between social and legislative discourse (Leckey 2009: 565–6 [footnote omitted]). Several years later, the same tribunal again ordered former lesbian partners to share custody of a child of whom only one was the legal mother. This time the mother had given birth to the child. The child was younger than the girls in the previous case and the duration of the couple’s family life with the child was shorter. This time, law reforms had offered an avenue by which the birth mother might have established parental status for her partner, but she had declined to do so. The judges nevertheless spoke once more of the child’s having ‘two mothers’, whatever the law said.2 I assessed this second case more cautiously. I posed the question whether, ‘[n]ow that two women may become legal spouses and that a child may have two mothers, might judges too readily interpret facts from the diverse ecology of queer kinship through the script of two equal mothers?’ (Leckey 2013b: 13). While grappling with such instances in my scholarly life, my activist life has involved reorienting a national lesbian, gay, bisexual and trans human-rights organization for which no subsequent priority has matched the broad-based support rallied by a successful campaign for equal marriage. In conversation with colleagues and friends, these examples quickly joined with others. They helped in formulating a research agenda - the title of this volume - that is distinct from scholarship laying out the advantages or disadvantages of a legal reform or prescribing doctrinal paths for achieving it. As with any research agenda, its contours are contestable: it might have included more or less. On the side of more, the terms might have extended to regulation of the workplace and of political processes. The agenda might also have encompassed reforms justified on bases other than equality, such as liberty, privacy, health, children’s welfare, individual responsibility (think of welfare reform), or security. Equality, though, is especially rich given the ontological conceptualizing that it induces about the majority, the claimant group, and the relation between them, as well as its ‘fit’ with liberal and neo-liberal discourses. On the side of less, it would have been possible to focus on equality from a single vantage, such as gender or sexual orientation, or on a single issue within family regulation, such as measures to foster ‘equal 2 Electronic copy available at: http://ssrn.com/abstract=2711337 parenting’ by fathers and mothers. The hope is that the terms framing the agenda - including the subtitle, ‘Family, Sex, Kinship’ - capture a middle ground, providing sufficient focus while stimulating productive connections across sites. RESEARCHING ‘AFTER LEGAL EQUALITY’ This collection presents new research, gathering under its rubric authors from England and Wales, the United States, and Canada. Under an overarching theme of kinship and care, the chapters are organized into three parts: Care and Justice under Neo-liberalism, States’ Reach, and Sex and Love. The recognition of same-sex relationships - primarily conjugal ones - emerges as the prevalent site of investigation, but chapters also address care more broadly, gender relations in parenting, cohabitation, and organizing for racial equality. This gathering embodies an effort to transcend the barriers that often confine legal scholarship within law and, via specialized journals, within fields. For example, the collection sets scholars of family law in conversation with tax specialists. Disciplinarily, it juxtaposes socio-legal scholarship with the work of specialists in sociology, American studies, and women’s studies. Before elaborating on the collection’s register and methods and setting out its themes, it may be helpful to distinguish various understandings of the object of research ‘after legal equality’. Although their boundaries are porous, such research might focus on at least five phenomena. First, the dismantlement of achievements won in the name of legal equality. One might study instances in which conservative or other forces disassemble institutions or structures set up with a view to bringing about equality for one group or another. A recent example is the US Supreme Court’s invalidation of the Voting Rights Act (see Jakobsen and Ferguson, both in this volume).3 Arguably, such dismantlement should be assessed in a larger context. Thus Ferguson (XX), discussing the same Court’s decision a day later to strike down the Defense of Marriage Act,4 reads the judgments as together suggesting ‘that the mainstreaming of homosexuality within the US took place via the marginalization of anti-racist protections’. The destruction or reengineering of the welfare state offers other examples. 3 Second, the backlash following a historically marginalized or disadvantaged group’s legal and social advances. Feminist gains in family law or criminal law may trigger a backlash (see e.g. Boyd et al. 2007), as may achievements in rights for gay men and lesbians. Advocates for one group may borrow or co-opt the discourse of equality used by another, opposing group. Thus fathers’ rights groups have asserted fathers’ right to parent equally and children’s right to have two equal parents in response to claims for substantive equality grounded in mothers’ disproportionate caring work (see e.g. Crowley 2006). Third, the intuition (or evidence) that lobbying or litigation relying on legal equality has reached its limit. Equality as a political or legal argument has proven more effective at addressing some kinds of issues than others. In a number of contexts, equality has helped to obtain formally identical treatment, but failed to achieve significant redistribution or substantive equality (Hunter 2008). Fourth, the impact for those left behind or further disadvantaged. Effort to study such impact might pursue a number of inquiries. Which inequalities have reforms driven by equality exacerbated? How does enacting formal equality play against abiding substantive inequalities? Specifically, have reforms justified by equality in terms of gender or sexual orientation intensified inequality on other bases such as class, race, and ability? Crucially, class does not generate an ‘equality’ claim articulable in law, something which may intensify the effects of other markers of social position such as race. ‘Success’ at changing law might further stigmatize non-normative sex (Warner 2000) or non-normative families (Barker 2012), although that may be an empirical rather than a conceptual question. It might also intensify the legal and social favours accorded to privileged, coupled forms of family (Brake 2012), although the character of such favours and the social meaning of marriage vary by jurisdiction and by era. For example, marriage’s significance in the US is not necessarily universal. By advantaging those who are privileged except for their sexual orientation, equality efforts risk further legitimating legal and social structures soldered to discrimination based on race, gender, class, and nationality (see e.g. Kandaswarmy 2008; Lenon 2011; Young and Boyd 2006). 4 Have the reforms benefitted some members of a disadvantaged group and not others? As feminist and queer critics have noted in connection with the push for same-sex marriage, the rising tide of successful equality claims does not lift all boats. The ‘options’ that legal reforms make available - for gay men and lesbians, marriage and legally acknowledged parenthood - do not benefit or appeal to all groups or subgroups equally. New inclusions may produce new exclusions. Moreover, ‘equality’ campaigns, as for same-sex marriage, may visit unwelcome effects on those who would not decide to take up the new legal possibilities. In this respect, it is significant that expanded ‘recognition’ of spousal status may not be optional. For purposes of social programs, it sometimes applies mandatorily, deeming cohabiting couples to be ‘spouses’, aggregating their incomes, and reducing their benefits irrespective of their wishes (see Young, in this volume). Fifth, the effects for legal reform’s intended beneficiaries. This understanding of ‘after legal equality’ presses against the assumption that legal ‘success’ represents an endpoint for legal reform and political organizing. Research might scrutinize the courts’ or legislatures’ selected means and anticipate and observe unintended consequences. How are reforms playing out? Are people taking advantage of the mechanisms made available, such as forms of family recognition or remedies? Where legislative drafters have copied existing legislative regimes for new contexts, how effective is that approach? Assumptions of sameness call for scrutiny in particular concerning the regulation of same-sex couples (see Monk, in this volume; Leckey 2013a) and their status as parents (see e.g. Diduck 2007). A newly accessible regime of family law may interact problematically with the legal arrangements made by same-sex couples - pre-equality, as it were - using the devices of the ordinary private law, such as wills (Monk 2011). It may be possible, then, to identify the benefits of legislation recognizing families created and sustained by gay men and lesbians as well as gaps in such regimes. Where reforms are already in place, such research may identify unintended consequences and point to additional, corrective reforms. Meanwhile, policy makers and governments in jurisdictions where reforms have not occurred can profit from the experience elsewhere. They may also find themselves judged against the yardstick of measures adopted in comparator states. 5 Other inquiries ripple outwards from legal regimes, reaching further into social practice and generating additional research inquiries. How have reforms altered conduct in their field of operation and beyond, such as the way people organize politically or where they congregate and live? Have legal rules that are ostensibly more equal reshaped kin configurations and practices or ways of talking about them? To what extent has a chosen legislative model ‘channelled’ social practice into it (Wallbank 2010), and how, methodologically, might we answer those questions? Looking back at the tools of law reform, how distortionary is the image constructed for argumentative use before judges or elected lawmakers that the claimant group is the same as another group or sufficiently similar to it? (on campaigns for marriage, see Zylan 2011). What subtleties and distinctive traits are stripped away when legal processes turn their gaze on a group heretofore ‘outside’ legal regulation? (Might the image on this volume’s cover, by Montreal photographer Valerie Simmons, be read as an allegory of the strangely deadening effects of aiming to make one thing the same as another?) The diversity of social practices ensures that a process of legal recognition, through which one or more models will be picked out and given the state’s imprimatur, will exclude some forms of practice and misrepresent others (Leckey 2011). One finding from research ‘after legal equality’ may be that efforts to bring about formal equality - identical treatment of different individuals or groups - have not necessarily resulted in substantive equality. That observation has been made repeatedly and this collection does not develop it. Instead, without pretense to exhaustiveness, this collection bears primarily on the fourth and fifth understandings of researching ‘after legal equality’. I hope that it provides methodological, conceptual, and theoretical resources for gathering and reframing existing research from different jurisdictions and that it will inspire further work in other sites and concerning other groups. It may be worth identifying a few instances that exemplify the larger research agenda. On the gender and sexuality front, trans individuals’ circumstances come to mind. A fine example of relevant research is Sharpe’s (2012) painstaking analysis of the UK’s Gender Recognition Act 2004 and its discriminatory premises and effects. Further on family matters, the legal approach to surrogacy may register a concern for some intending parents’ equality relative to others and a contingent conception of women’s equality or capacity to choose (e.g. Campbell 2013: Ch. 3). Turning to public policy, attention to areas such as welfare (see e.g. Smith 2007) would align with this volume’s chapters by specialists in taxation (Brooks; Young). 6 Finally, religion warrants further analysis, whether in relation to legal efforts to advance women’s equality by protecting them from religion (e.g. Korteweg and Selby 2012), to perceived conflicts between freedom of religion and equality relating to sexual orientation (e.g. Cooper and Herman 2013), or other matters. It is now appropriate to develop further the present collection’s approach. In agreement with Hines and Taylor (2012: 2) that attending to advances around sexuality - and analogous matters is ‘both a methodological question and a theoretical challenge’, this Introduction addresses the collection’s register and methods, as well as its theoretical and thematic foundations. REGISTER AND METHODS Research ‘after legal equality’ may operate in a different register than work seeking to bring about law reform. It might bracket the binary logic of being for or against a given goal, such as access to marriage and the doctrinal imperative of shoehorning social practice into existing categories. Such a juncture might make it more possible to ‘complicate progressive narratives’ and challenge the basis of claims for identical treatment (Monk 2011: 247). More than work prepared with an eye to judicial or parliamentary decision making in the short or medium term, research ‘after legal equality’ may develop critique that previously was politically unpalatable or simply not perceived (Harding 2011: 182; on the luxury of critique, see Brown and Halley 2002). Such research may be meditative, reflective, or speculative. In this way, Monk aims ‘to create a space for a “quiet empiricism”, raising questions more than offering answers’ (in this volume, XX [reference omitted]). Of course, any opposition between advocacy or activism and research is contentious, and all research advances some perspective. Still, work ‘after legal equality’ may seek to deepen understanding without issuing an immediately applicable policy recommendation. By contrast, moments of law reform, such as parliamentary hearings, pitting one group against another, offer less room for such inquiry. Nonetheless, it would be wrong to imply that this collection of studies ‘after legal equality’ eschews policy prescription or offers no normative implications. Young favours an approach to taxation that focuses on the individual, not the conjugal couple. Although that is a view which she advocated two decades ago (Young 1994), it is now enriched by the experience of what 7 ‘equality’ has brought and the heteronormative patterns it has failed to disturb. Other studies in this volume will inspire differing normative reflections in their readers. Reece’s conclusion (XX) that ‘cohabitants’ recalcitrance’ - their failure to take responsibility for themselves by negotiating and concluding cohabitation agreements - ‘may be something to celebrate’ stands as a challenge to a prescriptive strand of legal policy literature. For some readers, though, her chapter’s interdisciplinary discussion of the costs of concluding contracts on an individual basis, including the foreseeable hit to couples’ optimism bias, will evoke the law-and-economics literature on default rules and strengthen the case for presumptively subjecting cohabitants to more robust protections. It is similarly possible to read Brooks’s chapter on two levels. It is foremost a sociological endeavour with the goal of better seeing conjugality at the margins. It may, however, lead some readers to worry about the intrusion that ‘recognizing’ family on an informal or functional basis occasions and the apparently regressive way in which individuals with fewer resources appear least well placed to control their relationships’ legal characterization. (The degree to which class privilege and social conventions inform metrics of intrusiveness would rightly temper such a reading.) Beyond the question of its normative intensity, research ‘after legal equality’ raises methodological questions. The research agenda prefigured by this collection may call for different methods than do debates for and against reforms. Since the impact of legal reform on formerly excluded groups is a key question, empirical research is in order. The reforms in question are recent enough that fuller-scale empirical work must await the future; indeed, the complexity of legislation’s impact necessitates a long-term view (Maclean and Kurczewski 2011: 106–10). Nevertheless, mid-term assessments may be fruitful. Researchers have already begun to trace how the availability of access to formal recognition of same-sex relationships may affect attitudes and ways of living (e.g. Balsam et al. 2008). Scholars have also examined the impact of legislated norms of equal or shared parenting (Fehlberg et al. 2011). A shift in the scale and location of legal action post-equality may dictate a corresponding methodological shift. Where ‘big’ matters have been addressed in terms of equality, activism and pressures may be redirected towards more technical and interstitial legal matters. The implications of civil partnership and same-sex marriage in private international law or conflict of 8 laws present an example (Cossman 2008). Regulations ostensibly based on health or risk concerns - in access to assisted reproduction or blood donation - that disproportionately affect a group are another. To expand on this shift in scale, once equality has been ‘achieved’ via a human-rights judgment of general application or by legislation, the level and scale of relevant decision-making may change too. Equality’s on-the-ground meaning will arise, for example, from discrete applications of law, as in individualized decisions respecting custody, residence orders, or contact made in a child’s ‘best interests’ (Richman 2009). From an equality standpoint, the historical record of the latter concept’s application is uneven, at best. Regimes that have been ostensibly purged of discrimination on their face may nevertheless prove problematic in their administration. A plain example is the adoption or fostering process (see Monk, in this volume). As an indication that it may be necessary to slice regimes finely, social workers’ approval of same-sex couples as adopters may not be matched, downstream, by the placement of children with them (Sullivan and Harrington 2009). The lesser degree of transparency as the action shifts to policy, soft law, and administrative decision-making - by contrast with publicly available judgments - mounts a thorny methodological challenge. Concretely, then, with adjudication before apex courts and primary legislation in the national, state, or provincial parliament behind it, scholarly attention after legal equality may reconnect to research devoted to other sets of sources, such as soft law, and to less instrumental modes of reading. Indeed, research on regulation ‘after legal equality’ may have much in common with the pre-equality attention to soft law and policy, including at local levels, undertaken when groups such as gay men and lesbians were absent from higher-order laws (on ‘sexing the city’, see Cooper 1994; ‘post-equality’, see Richardson and Monro 2012: Ch. 5). Same-sex marriage having been legislated in England and Wales, Harding (in this volume) brings critical discourse analysis to bear on the parliamentary debates that led to it. Research ‘after legal equality’ may privilege attention to the intimate, the archival, and the micro. Think of work exploring queer parenting and kinship by examining stories, films, and photographs (Hicks 2011; for a study of small-scale spaces, see Cooper 2013). Within this volume, Brooks reads legal tax cases for their portraits of individuals ‘at the margins of conjugality’, aiming to ‘deriv[e] evidence about the 9 texture’ of their lives. Monk draws on interviews with solicitors who had experience writing wills for gay men and lesbians, a revealing site of socio-legal inquiry, but not an obvious one. Nor are legal sources the only ones relevant. Consider Reece’s assessment of Advicenow, a government-sponsored information website. The provision of information may merit analysis as a form of intervention and, indeed, of governance (see also e.g. Reece 2003: Chs 4, 5). Critically, the micro character of suitable sources need not imply a small scope of relevance for the resulting findings. Even if focused on a minority group or formation in a circumscribed context, research ‘after legal equality’ stands to yield broader insights. For example, studying the friction between marriage law and gay and lesbian family life may provide insights applicable to other kinds of family, including the ‘mainstream’ different-sex couples for which such law was devised (Heaphy et al. 2013: 32; Leckey 2014). THEORY AND THEMES The complexities of post-reform politics may make it constructive to ‘take a break’ from prevailing theoretical constructs and commitments (Halley 2006). At minimum, it is worth studying their epistemic limits. Pre-equality, it sometimes appeared straightforward to characterize a minority group as oppressed or excluded by the majority. In contrast, a ‘new era of legal recognition’ around sexual orientation may create ‘winners and losers within the lesbian and gay community’, in the process ‘test[ing] the very political notion of a community’ (Monk 2010: 98). Queer theory has played an important role in this move, but Monk suggests that his chapter ‘draws on but at the same time troubles and complicates queer critiques’, troubling the ‘new’ binary of queer versus gay (XX). As Donovan shows in hers, the problem of violence in same-sex relationships reveals the analytical limits of binary categories of gender. Collier calls for a ‘move beyond considerations of gender differences’ with a view to identifying ‘the common problems that can face both parents, mothers and fathers’ (in this volume: XX). At the same time, legal equality ignores some gender differences; grappling with them may draw on earlier feminist critiques of formal legal equality. This Introduction turns now to the overarching theme of kinship and care, afterwards addressing themes tied more directly to the collection’s three parts. 10 Kinship and Care Referring to kinship, as opposed to family, may help to bring into view forms of affiliation that law has traditionally overlooked. Certainly a rich sociological literature focuses on family as ‘doing’ or ‘practices’ (Morgan 1996, 2011). But legal definitions of family remain confining (Wilkinson and Bell 2012). Concepts of kinship crystallize this collection’s commitment to interdisciplinarity by showing how legal scholarship and theorizing may draw conceptual and empirical nourishment from fields such as sociology and anthropology. Recent years have witnessed a substantial, creative and often exciting outpouring of work on kinship (see e.g. Carsten 2004), much of it assessing the impact of reproductive technologies (e.g. Franklin 2007; Franklin and McKinnon 2001; Strathern 2005). When traditional legal categories of sex, marriage, kinship, and gender no longer suffice, anthropological research may ‘suggest alternatives for conceptualizing human affiliation outside reproductive ideologies and practices’ (Borneman 2001: 31). Indeed, law’s productive role, as opposed to its recognition role, connects intimately to lived and livable possibilities. Social practice and the demands made of contemporary law have disrupted assumptions that kinship must remain grounded on the ‘presocial psychic place of the Mother and Father’ (Butler 2000: 69). From within literary studies, Eng (2010: 136–7) draws attention to the ‘prospects for a poststructuralist account of family and kinship’, suggesting that reimagining family and kinship ‘beyond the Oedipal … offers a host of political opportunities, economic responsibilities, and cultural commitments’. Efforts to rethink the regulation of intimate relations may also draw on the abundant feminist work on an ethics of care (e.g. Gilligan 1993; Held 1995; Noddings 1984). Research has demonstrated the character of care work, how much is done, and by whom. Analysis ‘after legal equality’ unfolds against the backdrop of feminist work of decades past. Thus Jakobsen and others in this volume question any purported dividing line between public and private spheres, alert to the underlying political and gendered politics of any such division (Boyd 1997; see also Halley and Rittich 2010). Sociologists have made efforts to conceptualize family life, loosened from the strictures of heterosexual marriage and parentage. Some have expanded the categories of conjugality, highlighting the significant number of people who are ‘living apart together’ (e.g. Levin 2004). 11 Smart (2007: 4) refers to ‘personal life’ as she seeks to explore ‘those families and relationships which exist in our imaginings and memories’; Plummer (2003) proposes the concept of ‘intimate citizenship’. A literature on friendship often, but not always, foregrounds sexual-orientation minorities (e.g. Nardi 1992, 1999). However manifold the critiques of traditional notions and ideology around ‘family’, loosening their shackles - in law and in social practice - may prove difficult. Sociologists have remarked on the ‘tenacity of the couple norm’ (Roseneil et al. forthcoming; on ‘the uncoupled’, see Cobb 2012; see also Klinenberg 2012). Recent research involving same-sex couples indicates a strong focus on the monogamous romantic couple (Heaphy et al. 2013). Wilkinson (2012: 142) suggests that if there is ‘no longer compulsory heterosexuality, and no longer necessarily even compulsory monogamy’, there may now be ‘compulsory romantic love’. That being said, such pressures may not operate in the same way for those disadvantaged by vectors such as race and class (or by their intersection) as they do for comparatively privileged groups. If it is possible to read all the chapters in this collection as addressing big questions of kinship and care directly or obliquely, several gesture to related matters that, especially in the context of same-sex couples, offer promising avenues for research ‘after legal equality’. Scholars outside law have extensively addressed the next two themes, sex and love, then violence and power. In what is perhaps a reminder of the constraining influence of doctrines of legal equality and the strategic imperatives of advocacy, those themes are comparatively underrepresented in legal literature. Sex and Love Aside from its role in procreation - assisted or otherwise - consensual sex is often largely absent from contemporary legal scholarship (but see Brook 2013). Outside law, however, a substantial research addresses sex, attesting to the prevalence of non-monogamy within same-sex couples, especially amongst gay men (e.g. Barker and Langdridge 2010; Coelho 2011). A subset of this literature addresses implications for relationship therapists (Finn et al. 2012) and social workers who assist gay male couples (LaSala 2004). For anyone cognizant of this literature, it is a stretch 12 to call the proliferation of varying conceptions of sexual and amorous fidelity, especially within male couples, even an open secret. Yet in places such as Canada, the US, and the UK, advocacy for legal recognition of same-sex couples played the card of sameness, not only on economic interdependence but also on amatory commitment. As Stychin has observed, the discourse of equality rights has been accompanied by themes of ‘social inclusion plus responsibility’ and emphasis on recognition’s ‘civilising function’ (2003: 40). For obvious strategic reasons, advocates did not draw judicial, legislative, or public attention to the sexual practices in which formally recognized couples might foreseeably engage (on the UK Parliament’s avoidance of sex entirely, see Herring, in this volume; Barker 2006). Does this silence matter? The disconnect between the public discourse by which same-sex couples are just like normative different-sex couples may engender an alienation between gay men’s public personae and their intimate queer selves (Joshi 2012). In addition, as Monk relates in this volume, it can have concrete effects when couples interact with administrative officials, as in connection with fostering and adoption. Two divides might be bridged productively. One lies between the extensive literatures on gay parenting and on gay sexual practices of non-monogamy. The other is between legal scholarship’s focus on sameness and sociological and therapeutic literatures sensitivity to difference. Relatedly, research ‘after legal equality’ might trace the discursive role that emotions have assumed in movements towards judicial or legislative reform. Love has emerged as a significant element in judicial and parliamentary discourse around same-sex marriage (Grossi 2012; Osterlund 2009). In this volume, Harding identifies love as a recurrent justification in debates regarding same-sex marriage for England and Wales. For her part, Donovan (in this volume) reports on the salience of love as a reason why individuals might stay in a violent same-sex relationship. Analysis of love’s regulatory effects may evoke queer theorists’ work in recent years on affect generally (see e.g. Sedgwick 2003) and on particular emotions (e.g. Cvetkovich 2003). As if the view of love as governance instrument is not somber enough, the question of love also raises matters of violence within intimate relationships. 13 Violence and Power The second issue where there is a gap between the social science and legal literatures is domestic or intimate violence in same-sex relationships. Understandably, discussion of this problem does not arise much in advocacy for legal equality, but ‘after legal equality’ there might be space for considering it more fully. A burgeoning non-legal literature addresses violence in same-sex relationships (see e.g. Ristock 2011), including the particular barriers to such individuals’ accessing support services (Simpson and Helfrich 2005). Some legal literature deals with samesex domestic violence by underlining the policy imperative of assuring equal access to the criminal law or to civil remedies such as protective orders (Pfeifer 2005; Stapel 2008). Inquiry ‘after legal equality’ can ask whether new legal structures of recognition support relationships or, instead, isolate them, procuring for same-sex couples the marital privacy so persuasively challenged by feminist scholarship and activism. In this volume, Donovan draws on empirical findings to highlight the causes and character of same-sex couples’ intimate violence. Coupled with Young’s attention in this volume to how fiscal and economic regulation of couples induces and reproduces patterns of specialized labour and dependency, this research might lead some to worry whether family recognition has intensified the scope for abuse. These mentions of legal remedies for violence and the potential impact of public policies lead to the larger question of the state’s role. The State, Recognition, and Neo-liberalism As should be already plain, this collection’s focus on ‘family, sex, kinship’ and the broader research agenda it proposes are not limited to any private or intimate sphere. Its chapters are intensely bound up in ‘public’ questions of the state and, building on feminist scholarship, in troubling the public/private binary. Engaging with the role of the state is critical because, despite reasons for disappointment - even for despair - regarding what the state can offer, many groups still ‘desir[e] the state’s desire’ (Butler 2004: 105). As Ferguson argues in this volume, contestable discursive and historiographical operations may have naturalized such desire. In this way, political and legal agendas concentrate on accessing the state’s formal recognition, as by parental status or marriage for same-sex couples, or via informal, protective recognition on a functional basis. In other words, efforts to unmoor familial regulation from marriage or sex often 14 end up urging the state to regulate more practices of intimacy (see Herring, in this volume, also 2013). Arguably, though, it is necessary to sharpen the critical tools for assessing bids for state recognition, especially as the success of an equality claim appears to move the goalposts for further extension. Marshalling lines of inquiry for addressing the character of appropriate state action is delicate. Decades of feminist and other critical scholarship have made it impossible to speak incautiously or unselfconsciously of limits on the state’s ‘intervention’, since ‘nonintervention’ is itself state action. Similarly, liberal discourses of autonomy and choice have been rightly criticized (although sometimes caricatured instead). Still, many will sense the need for a counterweight to the force of policies grounded in a claim to legal equality or justified on the basis of welfare or protection (for warning of ‘post-liberalism’s’ ‘uniquely interventionist’ stance and ‘coercive drive’, see Reece 2003: 235, 237). Butler (2004: 117) rightly insists that ‘legitimation is double-edged’. She emphasizes the importance of maintaining ‘a critical and transformative relation to the norms that govern what will and will not count as an intelligible and recognizable alliance and kinship’, including ‘a critical relation to the desire for legitimation as such’ and to ‘the assumption that the state furnish these norms’ (Butler, 2004: 117). Critical resources are also available outside the field of kinship, where scholars have scrutinized the ‘demands for access to state violence’ formulated by or on behalf of gay men, lesbians, and trans people (Moran and Skeggs 2004: 19; see also Brown 1995). Assessments on particular cases will vary, but identifying a relationship form for sociological purposes, or figuring it as kin, does not call straightforwardly for subjecting it to legal recognition. Determining whether such a regulatory extension is appropriate would require assessing the foreseeable material or distributive consequences, including for those most financially vulnerable. But it also calls for reference, however tentative and qualified, to some idea of autonomy or agency (on the choice between the two, see Madhok, Phillips and Wilson 2013: 5–7). It is notable that when challenging the contours of family regulation in its major report on ‘beyond conjugality’, the Law Commission of Canada (2001: xii–xiii), rather than straightforwardly calling for their extension, emphasized autonomy as a key value and emphasized the question as to whether regulating via relationships is necessary in the first place. 15 The case for regulating those who are living apart together is decidedly mixed (see e.g. Duncan et al. 2012); that for regulating friendship, perhaps weaker still. It is far from plain that Jakobsen’s ‘network of alternative relation’ (in this volume, XX) calls for assimilation with the more familiar objects of family law’s grip. Beyond adult relations, there are tensions between social, sexual, and genetic bonds in relation to children and those who parent them. Inclinations to validate social parenting and to recognize genetic origins can pull strongly in opposing directions. Even as legislative drafters attempt to unmoor legal and social parentage from engenderment, making greater place for social parenting and intention (Boyd 2007), the normative persistence of the ‘sexual family’ merits attention (McCandless and Sheldon 2010; see also Harding and Boyd, both in this volume). Contrasting inclinations to enlarge the circle of family or kinship and to retract it are observable. ‘After legal equality’ there may be interest in recognizing more than two adults as a child’s parents, for example, where assisted reproduction services are available without discrimination on the basis of sexual orientation or marital status. Simultaneously, efforts are made to protect the autonomy (in other contexts a liberal concept repeatedly problematized by feminists) of individuals who set out to parent alone, notably single mothers by choice (Kelly 2012). If one views these different configurations as equally valid, there may be little tension. From that angle, recognizing more simply increases the options and diversity within the ecology of family life. Yet especially where children and their welfare or interests are involved - or, to ratchet up the rhetoric, even their ‘right’ to a genetic or social ‘father’ - social or legal practices may present some possibilities as ‘better’ or more ‘responsible’ than others (Leckey 2011: 341–2), thus reaffirming the sexual family. Here again surfaces the need for a counterweight to the welfare imperative, one that makes space for at least some conception of autonomy (on parenting postseparation, see Boyd 2010). In any event, research taking stock of past legal reforms must also acknowledge the entwinement of alternative kinship practices with the material conditions of the neo-liberal state (Duggan 2003). It is not only that the retrenching welfare state makes the need for alternative kinship networks more urgent (Jakobsen, in this volume) or that it intensifies pressures on parents, before 16 or after family breakdown (Collier, in this volume). Nor is it simply that work on gay and lesbian kinship regularly overlooks socio-economic status’s abiding significance (Taylor 2009). It is, rather, that the recognition of alternative kinship forms parallels the rise of neo-liberalism in a non-coincidental way: neo-liberal politics ‘explicitly recognize new models of family’ (Woltersdorff 2011: 177). Shifts by which the state reprivatized the costs of social reproduction prepared the ground for expanding the contours of legally recognized family - that is, increasing the set of potential debtors of private support, such as same-sex spouses (Cossman 2002). Similarly, recognition of social parents within same-sex couples may have a poverty-law dimension, embedded in the post-welfare state’s imperatives to seek out private support (Smith 2009). THE CHAPTERS OF THIS COLLECTION The collection is in three parts. Part One, ‘Care and Justice under Neo-liberalism’, addresses contemporary connections between family law and state policy concerning care and gender. Jonathan Herring’s chapter emphasizes the importance of care and calls for reconceiving family law around relations of care. He argues that the traditional focus on sex fails to capture family law’s underlying aims, sets out indicia for caring relationships, and addresses objections to his proposal. In the next chapter, Susan B. Boyd uses laws on parenthood to study the contradiction between the trend towards formal equality and ongoing gendered patterns of care - including women’s gendered inequality within heterosexual families - as well as the growing phenomenon of parenting by lesbians and by gay men and by single mothers by choice. She assesses the innovative potential of a new Family Law Act in British Columbia, Canada. In his chapter, Richard Collier suggests that our understanding of the political terrain around fathers’ rights and shared parenting law can gain much from a richer and more nuanced engagement with the interconnections between fatherhood, law and gender. He contends that it is important to locate debates about fatherhood and law ‘after legal equality’ within a wider reconfiguration of gender and care under the political, economic and cultural conditions of neo-liberalism, one in which adequate support for post-separation parenting is in short order. Janet Jakobsen’s chapter concludes this part, explicitly addressing contemporary conditions of neo-liberalism and the classification of care as a private matter. She argues that building possibilities for justice requires analyzing how private social relations like those of gender and sexuality work with neo-liberal 17 policy and making space for alternative relational understandings. By taking a queer approach to gender and sexuality, she calls us to shift, change, and ‘queer’ the relation between public and private. Part Two, ‘States’ Reach’, pursues the inquiry about the appropriate role of the state, by interrogating what groups imagine and demand and showing how being recognized as family may play out. Kim Brooks reads the tax judgments applying Canadian law’s recognition of conjugal couples as spouses, offering vignettes, at a micro-level, of life at ‘the margins of conjugality’. The outcomes of the cases matter much less for her purposes than pausing to observe how state recognition of functional family plays out, including on whom the official gaze seems to rest most often. In her chapter, Helen Reece challenges the assumption of government and policy literature that responsible adults whose intimate relationships lie outside family law should take steps - inform themselves, negotiate and sign an agreement - in order to construct legal norms for themselves. She performs close readings of informational materials from Advicenow, a website sponsored by the British government. Drawing on psychological literature about optimism bias, among other things, Reece highlights the costs of making such agreements and invites us to take seriously the provision of information as a form of responsibilizing governance. Claire F.L. Young’s chapter traces the impact, ‘after legal equality’, of gay men and lesbians’ recognition as spouses for purposes of income tax. Arguing for a governmental approach based on individuals, not the conjugal couple, she identifies the differential impact of inclusion as spouses across lines of gender and class. Some of the disadvantages flowing from spousal recognition relate to its impact on subsidies delivered through the tax system. The argument bears, then, on how the state should act, not on whether it should. This part’s final chapter, by Roderick A. Ferguson, performs a genealogy of the contemporary claim for gay rights, identifying the historiographical operation by which past struggles for racial and sexual justice have been themselves refigured as claims for rights. He suggests that the current focus on obtaining equal rights from the state obscures a rich tradition of political thought and organizing that did not take the state’s logics as their destination. The collection’s third part engages with ‘Sex and Love’. Drawing on empirical research concerning domestic violence within same-sex couples, Catherine Donovan points to the limits 18 of the feminist understanding of domestic violence as a product of gender. She identifies features specific to the same-sex context and flags the recurrence of love as a factor in couples’ staying together despite violence. Donovan argues for the need to attend to violence within the intimate sphere ‘after legal equality’, to ensure that new modes of legal recognition do not intensify abuses within those relationships. In her chapter, Rosie Harding performs critical discourse analysis of key post-equality legal texts: parliamentary debates from England and Wales’ Marriage (Same Sex Couples) Act 2013 and a family judgment concerning the relationships between men and the children born of their sperm donations to lesbians in civil partnerships. Harding delineates the robustness of heteronormative notions of marriage and love, on the part of parliamentarians, and the judge’s susceptibility to the enduring lure of the sexual family. Finally, Daniel Monk’s chapter challenges the prevalent separation in the literature between questions of gay sex and gay parenting, inviting us to consider the discursive and political salience of ‘the child’. He studies two sites of queer kinship involving children: the difficulties encountered in the fostering process by a male couple who admitted that their relationship was nonmonogamous and, based on interviews with solicitors, gay men and lesbians’ treatment of ‘godchildren’ in their wills. Monk subtly invites us to question the opposition between ‘queer’ and ‘gay’ and to reflect on the place of sex ‘after legal equality’. 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