Papers by Gregg Strauss
Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supr... more Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court’s glorification of marriage created widespread anxiety among progressive family law scholars. Yet, the critics have still not explained why this marriage rhetoric arouses such moral indignation. Some critics predict Obergefell’s rhetoric will shape family and constitutional law in ways that harm nonmarital families, but these forecasts rely on weak doctrinal arguments and cynical speculation about judicial behavior. Others argue Obergefell’s rhetoric was gratuitously insulting. Is that as deep as the objection goes? Obergefell’s glorification of marriage is wrong, not because it was harmful or hurtful, but because its rhetoric denies the equal dignity of citizens in nonmarital families. For a state to treat all citizens as equals, officials must justify the law with reasons that all can accept as reasonable, even if mistaken. That is why Obergefell could justifiably ignore reli...
Bookmarks Related papers MentionsView impact
Ethics, 2012
Bookmarks Related papers MentionsView impact
SSRN Electronic Journal, 2016
Bookmarks Related papers MentionsView impact
Indiana Law Journal, 2014
Does a liberal state have a legitimate interest in defining the terms of intimate relationships? ... more Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Prominent theorists have answered this question “no” and concluded that the state should abolish legal marriage, along with all categories of intimate status. Using this proposal as a foil, I argue that the state cannot avoid status-based norms and has legitimate reasons to retain marriage. The argument has three parts. First, even if the law abolished licensed status categories, ordinary doctrines in tort, contract and equity would still tailor rights to the nature of intimate relationships. The law cannot avoid intimate status norms. Second, private law cannot avoid status because intimate relationships involve “imperfect duties.” Imperfect duties may be fulfilled in many ways, which gives intimates discretion to decide how, when and to what extent to act, constrained by subjective commitment to the relationship. Private law can enforce intimate duties only if it replaces the couples’ ...
Bookmarks Related papers MentionsView impact
Florida State University Law Review, 2019
Imagine you and your two-year old child move in with your parents, and you rely on them to care f... more Imagine you and your two-year old child move in with your parents, and you rely on them to care for her while you work several jobs at odd hours. After several years, you get into a fight about parenting, move out, and limit their time with your child. Should the law treat them as equal legal parents and allow a judge to decide how much grandparent visitation will benefit your child? Legal doctrines with this effect now appear in the Uniform Parentage Act (2017), the Uniform Nonparent Custody and Visitation Act, and the Restatement of Children and the Law. Under these de facto parenthood provisions, a nonparent can become a legal parent if the existing parent allows her to reside with, care for, and develop a relationship pa-rental in nature.
De facto parenthood is either unnecessary, unwise, or unconstitutional. Many courts adopted it to protect same-sex parents from discriminatory parentage statutes, but the new parentage presumptions and assisted reproduction provisions apply irrespective of gender or sexual orientation. De facto parenthood is often duplicative of rules about abandonment, guardianship, de facto custody, and stepparent adoption, except its broad parentage standard sometimes undermines their well-established formal limits. The doctrine’s only distinctive contribution concerns for-mer co-residential caregivers. It empowers judges to decide whether it is best for a child to maintain ongoing relationships with a relative, cohabitant, or stepparent who helped care for the child alongside her parent. In these cases, de facto parenthood violates parents’ constitutional rights. These parents consented to help, not to transfer their parental rights. Little evidence suggests that limiting a child’s ongoing relationships with secondary caretakers is harmful. Although de facto parenthood was an essential bridge to protect children and parents from discriminatory parentage laws, the doctrine should have no ongoing role in contemporary parentage law.
Bookmarks Related papers MentionsView impact
Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supr... more Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court's glorification of marriage created widespread anxiety among progressive family law scholars. Yet, the critics have still not explained why this marriage rhetoric arouses such moral indignation. Some critics predict Obergefell's rhetoric will shape family and constitutional law in ways that harm nonmarital families, but these forecasts rely on weak doctrinal arguments and cynical speculation about judicial behavior. Others argue Obergefell's rhetoric was gratuitously insulting. Is that as deep as the objection goes? Obergefell's glorification of marriage is wrong, not because it was harmful or hurtful, but because its rhetoric denies the equal dignity of citizens in nonmarital families. For a state to treat all citizens as equals, officials must justify the law with reasons that all can accept as reasonable, even if mistaken. That is why Obergefell could justifiably ignore religious objections to same-sex marriage. If marriage law rests on the idea that different-sex relationships are more valuable, then it treats gay and lesbian persons as second-class citizens who enjoy full legal rights only if they adopt someone else's vision of the good life. Unfortunately, Obergefell commits a similar sin. The Court glorifies marriage as a secular ideal for family life and authorizes states to encourage marriage as an ideal family form. People in nonmarital families cannot accept this as a reasonable basis for law. Obergefell's glorification of marriage violates the ideal of public reason in a way that denigrates nonmarital families and contradicts the opinion's own legal commitment to equal dignity.
Bookmarks Related papers MentionsView impact
Obergefell v. Hodges held same-sex couples have a right to legal marriage. As the dissenters emph... more Obergefell v. Hodges held same-sex couples have a right to legal marriage. As the dissenters emphasized, this right to marry is anomalous, doctrinally and normatively. Most rights in the United States Constitution are negative liberty rights. For example, the states may not interfere with procreative choices, but individuals have no right to public funds for contraception. Moreover, if children have no right to public funds for education, it seems morally dubious to claim a right to public support for adult marriages. What is this positive right to marry and what justifies it? This Article reconstructs a conceptual and normative foundation for the positive right to marry. Previous theories of the right to marry as a negative liberty right or an equali-ty right are unsatisfactory, because they fail to justify the connection between intimate liberty and marriage law. The right to marry is a positive right, but one of a specific kind. Unlike the right to educa-tion, it is not a claim to public benefits. It is a “power right,” a right to create legal duties for intimate relationships. This right is not simply a means to promote valuable relationships; it is necessary to ensure equal liberty. Relationships carry open-ended commitments that threaten to subordinate the partners to one an-other. A right to legal marriage is necessary to reconcile intimate liberty with equality.
Bookmarks Related papers MentionsView impact
Bookmarks Related papers MentionsView impact
Does a liberal state have a legitimate interest in defining the terms of intimate relationships? ... more Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Prominent theorists have answered this question “no” and concluded that the state should abolish legal marriage, along with all categories of intimate status. Using this proposal as a foil, I argue that the state cannot avoid status-based norms and has legitimate reasons to retain marriage.
The argument has three parts. First, even if the law abolished licensed status categories, ordinary doctrines in tort, contract and equity would still tailor rights to the nature of intimate relationships. The law cannot avoid intimate status norms. Second, private law cannot avoid status because intimate relationships involve “imperfect duties.” Imperfect duties may be fulfilled in many ways, which gives intimates discretion to decide how, when and to what extent to act. Private law can enforce intimate duties only if it replaces the couples’ discretion with status norms. Last, I argue that marital status offers a way to manage the tension created by imperfect intimate rights, permitting couples to retain discretion without abandoning protection. Spouses retain discretion during marriage because the law defers protection of marital rights until divorce, when it can uses equitable divorce rules to protect marital rights and ensure neither spouse benefits unfairly from the suspension of ordinary private law
Bookmarks Related papers MentionsView impact
Ethics, Apr 2012
Bookmarks Related papers MentionsView impact
Thesis Chapters by Gregg Strauss
Bookmarks Related papers MentionsView impact
Uploads
Papers by Gregg Strauss
De facto parenthood is either unnecessary, unwise, or unconstitutional. Many courts adopted it to protect same-sex parents from discriminatory parentage statutes, but the new parentage presumptions and assisted reproduction provisions apply irrespective of gender or sexual orientation. De facto parenthood is often duplicative of rules about abandonment, guardianship, de facto custody, and stepparent adoption, except its broad parentage standard sometimes undermines their well-established formal limits. The doctrine’s only distinctive contribution concerns for-mer co-residential caregivers. It empowers judges to decide whether it is best for a child to maintain ongoing relationships with a relative, cohabitant, or stepparent who helped care for the child alongside her parent. In these cases, de facto parenthood violates parents’ constitutional rights. These parents consented to help, not to transfer their parental rights. Little evidence suggests that limiting a child’s ongoing relationships with secondary caretakers is harmful. Although de facto parenthood was an essential bridge to protect children and parents from discriminatory parentage laws, the doctrine should have no ongoing role in contemporary parentage law.
The argument has three parts. First, even if the law abolished licensed status categories, ordinary doctrines in tort, contract and equity would still tailor rights to the nature of intimate relationships. The law cannot avoid intimate status norms. Second, private law cannot avoid status because intimate relationships involve “imperfect duties.” Imperfect duties may be fulfilled in many ways, which gives intimates discretion to decide how, when and to what extent to act. Private law can enforce intimate duties only if it replaces the couples’ discretion with status norms. Last, I argue that marital status offers a way to manage the tension created by imperfect intimate rights, permitting couples to retain discretion without abandoning protection. Spouses retain discretion during marriage because the law defers protection of marital rights until divorce, when it can uses equitable divorce rules to protect marital rights and ensure neither spouse benefits unfairly from the suspension of ordinary private law
Thesis Chapters by Gregg Strauss
De facto parenthood is either unnecessary, unwise, or unconstitutional. Many courts adopted it to protect same-sex parents from discriminatory parentage statutes, but the new parentage presumptions and assisted reproduction provisions apply irrespective of gender or sexual orientation. De facto parenthood is often duplicative of rules about abandonment, guardianship, de facto custody, and stepparent adoption, except its broad parentage standard sometimes undermines their well-established formal limits. The doctrine’s only distinctive contribution concerns for-mer co-residential caregivers. It empowers judges to decide whether it is best for a child to maintain ongoing relationships with a relative, cohabitant, or stepparent who helped care for the child alongside her parent. In these cases, de facto parenthood violates parents’ constitutional rights. These parents consented to help, not to transfer their parental rights. Little evidence suggests that limiting a child’s ongoing relationships with secondary caretakers is harmful. Although de facto parenthood was an essential bridge to protect children and parents from discriminatory parentage laws, the doctrine should have no ongoing role in contemporary parentage law.
The argument has three parts. First, even if the law abolished licensed status categories, ordinary doctrines in tort, contract and equity would still tailor rights to the nature of intimate relationships. The law cannot avoid intimate status norms. Second, private law cannot avoid status because intimate relationships involve “imperfect duties.” Imperfect duties may be fulfilled in many ways, which gives intimates discretion to decide how, when and to what extent to act. Private law can enforce intimate duties only if it replaces the couples’ discretion with status norms. Last, I argue that marital status offers a way to manage the tension created by imperfect intimate rights, permitting couples to retain discretion without abandoning protection. Spouses retain discretion during marriage because the law defers protection of marital rights until divorce, when it can uses equitable divorce rules to protect marital rights and ensure neither spouse benefits unfairly from the suspension of ordinary private law