Engendering Democracy through Understanding Federal Family Law

When a spouse is old and ill and in need of living in an institutional setting, who should pay for the costs of such housing? Ought the spouse who can continue to live outside an institution have to spend potentially all of the family resources on the sick partner? More generally, which persons have obligations to support others, whether sick or well, old or young? Ought the fact of employment or retirement alter those obligations? And who has rights of physical access to another person, including the chance to visit, to play, and to share (or to demand) intimate physical contact?

All of these questions evoke images of small groups of people living in arrangements styled families. Idyllic accounts might thus conclude that individuals, caring for each other and working cooperatively, would supply answers to these (and to a host of other) questions about the ordering of the obligations that flow from familial relations. Such questions often are answered through personal, loving agreements among participants. But individuals and families fashion their responses within the template of a polity full of normative expectations of the roles that family members ought to play.

Such questions also have legal answers, which come into play either in the absence of accord among participants or in the presence of third parties, such as hospitals, competing family members, and governments. Through law, decisional rules are imposed. And, to provide such answers, law (framed by the culture of which it is a part and to which it contributes) relies on a vision of what individuals properly constitute groups called families and of what rights and obligations flow within family circles.

Moreover, although I proffered questions in terms that are not sex-specific, neither the personal nor the legal responses have been gender-neutral. Rather, both in personal and legal decisionmaking, answers differ depending upon the sex, age, and sometimes class and race of a family member. In the United States (as in most countries), the laws of family life have been organized around a male head of household, having control over and obligations toward female and children dependents. Indeed, through such gender-role specificity, the law of the family not only relied on gender for its organization but also served as a significant source of the production and the meaning of gender.

Knowing that law plays a role in determining interpersonal relationships does not, however, tell us how to find answers to the questions outlined above within the federation called the United States. Another step is required. We need to understand which government's rules—state, federal, or both—apply. A commonplace assumption in the United States is that state law supplies the governing legal regime when one is needed for family life. Indeed, time and again, the claim is reiterated that family law belongs to and is constitutive of state law.

But, as will come as no surprise to readers of Nancy Cott's recent book, Public Vows: A History of Marriage and the Nation, state law does not stand alone when family governance is in issue. ² Rather, federal law sometimes supplies the rule. At other times federal law supplements, and in some instances trumps, whatever state-based solutions are in place.

To illustrate, return to the questions posed at the outset. Under federal statutes, as recently interpreted by the United States Supreme Court, a spouse living in the community need not exhaust all assets before her or his institutionalized partner becomes eligible for Medicaid. ³ In terms of other support obligations, both state and federal law work in concert to enforce requirements that adults support their minor children but not their aging parents. ⁴ Parents also have dominion and control over who visits their children; federal constitutional law forbids states from permitting rights of access to grandparents over a custodial parent's veto. ⁵

Thus, as Cott so ably instructs, marriage and family life are not only matters of private agreement but are also institutions framed by government...