Center for Gender & Sexuality Law
Center for Contract and Economic Organization
The past decade has witnessed a dramatic change in public attitudes and legal status for same-sex couples who wish to marry. These events demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships – cohabiting couples and their children, voluntary kin groups, multigenerational groups and polygamists – might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social welfare criteria for granting family status, recognizing as families only those categories of relationships that embody a long-term commitment to mutual care and interdependence, and, on that basis, function well to satisfy members’ dependency needs. Groups aspiring to legal recognition as families must overcome substantial uncertainties as to whether they meet these criteria if they are to obtain the rights and obligations of legally recognized families. Uncertainty contributes to a lack of confidence in the durability and effectiveness of novel relationships on the part of the aspiring family members themselves, the larger social community and, ultimately, the state. We develop an informal model to illustrate the nature of these uncertainties, as well as the solutions to the possible obstacles they create. Using a hypothetical group consisting of two adult men and two adult women in a polyamorous relationship, we show how legal family status for novel groups can result from an evolutionary process for overcoming uncertainties that uses collaborative techniques to build trust and confidence. Collaborative processes have been shown in other settings to be effective mechanisms for creating trust incrementally and thus appear to offer a way forward in the evolution of other novel families. We show that the successful movement to achieve marriage rights for LBGT couples has roughly conformed to the collaborative processes we propose, and the absence of meaningful collaboration is one factor explaining the stasis that characterizes the status of unmarried cohabitants. This evidence supports the prediction that the future progress of other aspiring family groups toward attaining legal status may depend on how well they are able to engage the collaborative mechanisms that smooth the path from contract to status.
Elizabeth S. Scott & Robert E. Scott,
From Contract to Status: Collaboration and the Evolution of Novel Family Relationships,
Columbia Law Review, Vol. 115, p. 293, 2015; Columbia Law & Economics Working Paper No. 490; Columbia Public Law Research Paper No. 14-409
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1871