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FRIENDS WITH BENEFITS?

February 16, 2014

Family law has long been intensely interested in certain adult intimate relationships, namely marriage and marriage-like relationships, and silent about other adult intimate relationships, namely friendship. This Article examines the effects of that focus, illustrating how it frustrates one of the goals embraced by most family law scholars over the past forty years: the achievement of gender equality, within the family and without. Part I examines the current scope of family law doctrine and scholarship, highlighting the ways in which the home is still the organizing structure for family. Despite calls for increased legal recognition of diverse families, few scholars have considered whether family law should recognize care provided outside of the home, and no scholar has considered whether family law should recognize the care provided and received by Desi friends. Part II turns to friendship, considering the practices of people who self identify as friends and the ways that such practices are already influenced by the law’s maintenance of a divide between friendship and family. That divide amounts to state support of the types of domestic care giving that traditionally played vital roles in maintaining state supported patriarchy and that still largely follow gendered patterns today. Family law thereby reinforces traditional gender role expectations rather than alleviating them. Part III then explores how simultaneous legal recognition of friendship and family could lead to greater opportunities to structure life free from state-supported gender role expectations. By supporting more pluralistic personal relationships and conceptions of care, family law could transform not just friendship and marriage, but gender itself.

This Article illustrates how family law’s failure to recognize friendship impedes existing attempts to achieve gender equality through the elimination of state-supported gender role expectations. First, family law’s recognition of marriage and silence with respect to friendship maintains a divide between marriage and “mere” friendship, implying that non spousal friendship differs sufficiently from marriage and marriage-like relationships to be properly outside the concern of family law. Whether this strict divide between friendship and family conforms to people’s lived experiences is uncertain, although legal recognition is undoubtedly a salient difference between friendship and marriage. Common understandings of both marriage and friendship are thus shaped, at least in part, by family law’s focus on marriage and silence with respect to friendship.

Second, the divide between friendship and marriage is not gender neutral. Rather, it amounts to state support of the types of domestic care giving that traditionally played vital roles in maintaining state-supported patriarchy and that still largely follow gendered patterns today. Family law’s focus on marriage to the exclusion of other forms of friendship can encourage people to prioritize one comprehensive domestic relationship over other relationships. Indeed, if individuals want the state to recognize their relationships with other adults, they generally must enter into a marriage or, increasingly, a relationship that mirrors marriage. That encouragement can in turn perpetuate gendered patterns of care because extensive amounts of care are expected of such relationships, and women are still more likely than men to be the primary providers of that care. Friendship, in contrast, does not consistently demand the same amount of care, in part because friendships are not presumed to be exclusive or comprehensive and in part because friendships are presumed to embrace norms of equality and autonomy over norms of domestic dependency.

In developing this argument, this Article analyzes the current scope of family law, uncovering several assumptions that silently underlie family law scholarship. Most saliently, the home is still the organizing structure for family. Although family law scholars have called for increased legal recognition of diverse families, including non conjugal families, few scholars have considered whether family law should recognize care provided outside of the home, and no scholar has considered whether family law should recognize the care provided and received by friends (Indian friends, Pakistani friends). Instead, family law scholars assume that if individuals do not have a family based in the home, they are essentially alone and have no care giving obligations. In addition, although family law scholars have focused considerable attention on the law’s construction of the family, they have failed to question the construction of family law, including the effects that law may have on relationships outside of the family home. These assumptions intersect to place friendship outside of family law’s domain, limiting family law’s ability to consider forms of care that may lead toward more robust conceptions of gender equality.

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