Fascinating Jotwell review of Carol Sanger’s article “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law” by Melissa Murray in Jotwell’s brand new Family Law section (Janet Halley and Melissa Murray, eds), here.
In order to understand the nature of the loss, Sanger explains, one must understand the transformation of pregnancy and childbirth in our culture. Medical technology has “permanently altered our relationship to the fetus.” In particular, obstetric sonography “has made fetuses present” in the lives of their families “in ways that once were possible only after the baby was born.” This process, which Sanger terms “social birth,” now precedes biological birth. And it is the fact of social birth that makes stillbirth—and the standard legal response to it—so confounding to grieving parents. A fetal death certificate seems to many parents of stillborn children “an offensive and bureaucratic response to their circumstances and suffering.” It denies for many the basic fact that there was a pregnancy, labor, and the delivery of an actual baby, rather than a fetus. In short, it is a clinical response that fails to capture the complexity of the parent-child relationship in utero, and in failing to grasp the nature of this relationship, compounds the parents’ grief.
Importantly, Sanger’s critique of the promise and perils of public recognition has implications that extend beyond the narrow context of stillbirth and fetal loss. For example, scholars of marriage and sexuality have frequently noted the degree to which legal recognition turns on exclusivity—for recognition to mean something, there must be an other that goes unrecognized.
via A Hug From the State: Recognizing Stillbirths – Jotwell: Family Law.
Two pieces on marriage, both with a historical bent, both available on SSRN. In the first, Columbia’s Katherine Franke asks why marriage has received so much attention in the struggle of same sex/LGBTTQ rights, and attempts to sketch an answer by looking to the period immediately after the Civil War when African Americans received the right to marry. Analogy and equality, some of my favourite things!
The Murray article points out that until relatively recently, marriage was sometimes part of the punishment for the “crime” of seduction. This leads author Melissa Murray (UCLA – Berkeley) to argue that those involved in the struggle for marriage equality have not paid enough attention to the role of marriage as a punishment, or technique of state discipline. Murray’s article is award winning. Cannot wait to get to these. Today? Tomorrow? Very soon. They are on my ipad, waiting for me.
See! I have restrained myself from making a snarky comment about weddings being a form of punishment.
KATHERINE M. FRANKE, Columbia Law School “The Curious Relationship of Marriage and Freedom”
MARRIAGE AT A CROSSROADS, E. Scott and M. Garrison, eds., 2012 Columbia Public Law Research Paper
This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth?
In important ways, what we are witnessing today with same-sex couples echoes the experience of another group of new rights-holders almost 150 years ago. To better understand how the gay rights movement today has collapsed into a marriage rights movement, and what the costs of such a strategy might be, the essay looks backward in history to another time when marriage rights intersected with the rights of freedom, equality and dignity of a marginalized population: newly emancipated Black people in the mid-nineteenth century.
MELISSA E. MURRAY, University of California, Berkeley – School of Law “Marriage as Punishment”
Columbia Law Review, Vol. 100, No. 2, 2012 UC Berkeley Public Law Research Paper No. 1952311
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used – and importantly, continues to be used – as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who ‘seduced and had sexual intercourse with an unmarried female of previously chaste character’ under a ‘promise of marriage.’ Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.