WHAT IS A FAMILY?
Competing definitons of the term have vast policy implications
The formal definition of family is “blood, marriage, or adoption,” but that leaves out many possible arrangements, including families of unmarried people, foster children, co-ops, and, until 2015, gay partnerships. In the 1970s, family law became more open to “functional families” outside the formal definition, while zoning law kept to the strictly formal. Legal historian KATE REDBURN writes, “These contradictions leave critical family law doctrines unstable in thirty-two states.”
In a recent working paper, Redburn examines how these changes came to be, and looks more generally at how legal regimes exist within connected networks and influence each other despite traditional boundaries of scale (local, state, etc.) and subject (family law, zoning law):
“Viewed through a broader lens, this story might suggest lessons for law and social movements. While progressives oriented their campaigns at the state level, homeowners imbued local governance with conservative social politics in defense of their prejudices and property values. Neither movement, nor the judges adjudicating their case, nor the legislators revising state and local statutes, paid adequate attention to the interlocking nature of legal doctrines, rendering their movements less successful than they have previously appeared. Though we tend to think of legal fields as distinct regimes, ignoring the multifaceted ways that doctrines overlap, connect, and contradict each other can have perilous consequences. Their blind spot has has grown to encompass millions of Americans.”
Redburn’s case study provides ample evidence that micro-level legal conflicts can uphold and alter legal understandings:
“Motivated constituencies of voters and their elected representatives can produce legal change quite out of sync with social trends. Such was the case in the zoning definition of family in the late 1960s and early 1970s. Despite social change resulting in more functional families, protective homeowners and the conservative movement successfully shifted zoning law away from the functional family approach.”