Deconstructing Family: A Critique of the American Law Institute's "Domestic Partners" Proposal

Deconstructing Family: A Critique of the American Law Institute's "Domestic Partners" Proposal* I. INTRODUCTION In promulgating the Principles of the Law of Family Dissolution: Analysis and Recommendations (hereinafter "Family Dissolution Principles" or "Principles"),1 the American Law Institute (ALI) proposes an extensive set of new rules to apply in proceedings relating to family dissolution. Among the subjects covered by the ALI Principles are child custody (chapter 2), child support (chapter 3), property division (chapter 4), alimony (chapter 5), domestic partnership (chapter 6), and antenuptial and pre-cohabitation agreements (chapter 7). As the first proposal of any national legal institution for general reforms of family dissolution law since the Uniform Marriage and Divorce Act ("UMDA"), which was proposed more than thirty years ago,2 the Family Dissolution Principles are both very timely and significant. The ALI is a prestigious law reform organization that has sponsored many successful law reform proposals during the past seventy-eight years.3 The Principles are the product of eleven years of labor by respected law professor Reporters,4 who were advised by three dozen very influential members of the legal profession, including a dozen highly respected state court judges,5 and attended by several dozen other knowledgeable and important lawyers, law professors, and judges.6 Thus, the Family Dissolution Principles has an impeccable pedigree, and because many influential jurists, law professors, and bar leaders helped to create it, it is certain to find a receptive audience in at least some lawmaking, legal, and academic circles. Clearly, the ALI Family Dissolution Principles must be taken very seriously as a significant law reform proposal that could have a major impact upon family law in America. A. The ALI Proposal to Expand the Categories of Relationships Accorded "Family" Legal Status and Benefits While some of the principles incorporated in the Family Dissolution Principles are quite familiar to practitioners and scholars of family law, many of the proposals go far beyond existing law and recommend radical changes in family laws and policies. Perhaps the most revolutionary proposals would expand the types of relationships that receive privileged "family" status and benefits. Most of the chapters of the Family Dissolution Principles contain provisions that deconstruct, level, or redefine "family" relationships. For example, many of the sections of chapter 2 (custody), chapter 5 (compensatory payments), chapter 6 (domestic partners), and chapter 7 (agreements) contain provisions that either significantly redefine currently protected family relations or radically alter existing family law doctrines. Among the most disturbing of the proposed leveling reforms are those in chapter 6 (domestic partners), where the ALI proposes to significantly expand the types of relationships that may claim the full economic protections and privileges of marital status upon dissolution. This article focuses on chapter 6 to demonstrate the family-- deconstruction-and-relational-equalization theme of the ALI Family Dissolution Principles and to show that the ALI Principles radically redefine family by substantially expanding the categories of persons and relationships that are given legal preference as "family" relationships. Chapter 6 is predicated upon some erroneous assumptions about the characteristics of same-sex and heterosexual nonmarital cohabitation (as well as the nature and qualities of marriage in general) and about the sameness of the economic expectations and interdependence of nonmarital cohabitants and marital couples. By broadly defining domestic partners, liberally providing for how that status may be established, and proposing to extend identical (full marital) economic benefits to domestic partners upon dissolution, the ALI moves toward equalizing the legal status of all adult domestic relationships and the economic consequences of their dissolution. …