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Dowd, Nancy --- "Equality and families" [1997] NZYbkNZJur 6; (1997) 1 Yearbook of New Zealand Jurisprudence 81

Last Updated: 16 April 2015

Nancy Dowd


Single-parent families have become the focus of renewed stigma and stereotype in the war to reform social welfare systems.' Blamed as the cause of their family's poverty, criticised for the absence of two parents, condemned for their sexuality, single-parents - usually single mothers - are viewed largely in negative terms. Those negatives are used to justify policies of deterrence and punishment, and the consequences are often visited upon children who have the misfortune of being born into or becoming part of a single-parent family. The focus of this article is the role of law in stigmatising single parents in the United States. Particular legal regimes vary between the US and New Zealand, but the overall patterns and justifications are remarkably similar. Indeed, the marked constriction of the welfare state in New Zealand has erased the sharp difference in public support of single parents between New Zealand and the US.

The negative view of single parents is particularly strong for non-marital single parents, although this is not the largest group of single parents in the United States. Separation and divorce create most single-parent families (60% of the total), while the failure to marry is the origin of half as many single-parent families (30%).2 The death of a parent creates less than 10% of single-parent families.3 The negative image of single parents is strongly tied to single mothers. On the one hand, this image accurately reflects the primary caregivers of children in single-parent families: almost 90% of children raised

* Nancy Dowd is a Professor of Law at the University of Florida College of Law.

See generally Nancy E Dowd, In Defense of Single Parent Families (1997); Jane Kelsey,

The New Zealand Experiment (1995).

  1. John Ermisch, "Demographic Aspects of the Growing Number of Lone-Parent Families" in Elizabeth Duskin (ed) Lone-Parent Families: The Economic Challenge (1990) OECD Social Policy Studies No. 8, 27, 29.
  2. Ibid. Single-parent families in the United States constitute 30% of families with dependent children. The rise in single-parent families is a pattern that dominates the post-industrial countries, with the proportion of single-parent families averaging 10-15% of families with dependent children, and therefore the U.S. proportion of nearly 30% represents one of the highest proportions. Ibid, 29. This proportion represents more than a doubling of single-parent families in the United States.

in single-parent households are raised by mothers.4 On the other hand, this image renders nearly invisible fathers who provide primary care as well as fathers who are legal parents but provide little caregiving and begrudge financial support. Single fathers are often visible only through the negative image of the "deadbeat dad" who fails to pay child support.

As I have argued at length elsewhere, the justifications for negative policies towards single-parent families are largely based on myths and unsubstantiated stereotypes.5 The poverty of single-parent families is made, not chosen. It is connected not to family form, but to the consequences of entrenched gender roles, failure to acknowledge and deal with dependency, and the consequences of ongoing racism. Poverty is not a choice; it is a punishment. Similarly, the structure of single-parent families does not cause psychological harm. Father absence is not significantly different from marginal father presence in two-parent families. But even more fundamentally, the view that fathers are unique caregivers, distinctive and different in what they offer children, is simply unsupported by what we actually know about what fathers do in families. When fathers nurture children, they do so like mothers. More often, however, fathers support mothers in their nurturing, and thereby indirectly care for their children, rather than directly caring for their children. Furthermore, justifying stigma on the basis of moral condemnation of single parents is, like poverty, a constructed, not an inherent; judgment. This stigma is strikingly anachronistic and contradictory given our sanction of no-fault divorce and our retreat from treating children born out of wedlock, or their parents, as outcasts. Moreover, sacrificing children's welfare for the perceived moral lapses of their parents should raise moral objections. Finally, the explicit justifications for stigma hide implicit racial and gender stereotypes that are simply that, unsubstantiated generalisations that support racial and gender hierarchy.6

Nevertheless, law, like other disciplines and much of popular culture, operates in a variety of ways to reinforce and construct negative outcomes for single-parent families. First, legal rhetoric contributes to the ideology and mythology of stigma by continuing to name children born outside of marriage illegitimate, which literally means unlawful. Even if those children are legally protected against discrimination of the basis of that status, the name itself powerfully connotes a disfavoured status. Stigma is also apparent in the structure of paternity determinations, which remain designed more to protect fathers rather than to connect them to, or require them to support, their children. Second,

  1. Steve W Rawlings, Household and Family Characteristics (U.S. Department of Commerce, Series P-20, No. 477, March 1993) xv:xviii.
  2. Dowd, supra n 1; Nancy Dowd, "Stigmatising Single Parents" (1995)18 Harvard Women's Law Journal 19.

6 Dowd, supra n 1 at chapter 1.

the law permits, and even arguably constructs, negative outcomes for single parents in the legal regimes that most frequently impact on their lives: divorce and welfare. The level of economic support under both of these regimes, alone or in tandem, is inadequate to support most single-parent families. The law incorporates negative stereotypes as the premise for denial or limitation of benefits or rights. The constriction of welfare is the prime example of this. The amount of welfare support has never permitted recipients in any state to live above the poverty line. Recent welfare reform has eliminated support as an entitlement, and imposes significant limitations, including lifetime limits, on receipt of benefits. Finally, the law fiercely protects the privileged status of the patriarchal marital nuclear family even to the detriment of children.

Many of these negative legal outcomes are hidden behind the relationship between the concepts of equality and families. Concepts of equality operate in strange ways to hide real barriers to the success of single-parent families, as well as failing miserably to ensure minimal standards of support for children. In this essay I focus first on the interlocking work and family paradigms that hide inequality and foster the notion that individual choices, bad choices, are the cause of bad outcomes. Second, I also describe how equality concepts, when applied to families, have failed to include respect for diversity and support for equal opportunity for children. Equality concepts operate quite differently in these two respects. In one instance equality obscures reality; in the other, achieving real equality in the context of inequality requires affirmative policies of support. In order to reorient our concepts of equality and families, we require a notion of fundamental rights for children that includes real equality of opportunity, as well as fundamental rights for families that limit the state's ability to disadvantage particular families on irrational grounds.


Concepts of equality in work and family law explain the negative circumstances of single-parent families as the consequence of individual choice rather than as the result of structural inequality. Equality thereby hides inequality. Legal definitions of equality ignore social inequality tied to structural and cultural discrimination. By emphasising guarantees of equal access to existing structures, law perpetuates those structures, regardless of whether they are inherently or historically discriminatory. Both family and work have been sites of inequality, as has the relationship between family and work. The impact of inadequate equality concepts affects all families; the results are simply more apparent and dramatic in single-parent families. But equality does more than shield structural inequality from view; it also constructs, and perpetuates, that inequality. Legal concepts of equality

contribute significantly to the poverty of single-parent families, which has so much to do with the negative outcomes experienced by these families.

The principle of equality in family law describes families as composed of equal partners who equally share the responsibilities of family.? Any allocation to the contrary is read as the product of choice, and any unequal or differential allocation of familial responsibilities is understood as capable of being readily changed. Difference and inequality can simply and easily be replaced by the paradigmatic equality pattern of gender-neutral parental sameness. At divorce, equal parents share parenting responsibility. To the extent that financial resources and capabilities are unequal, the law engages in limited redistribution of income, but with respect to caregiving it presumes equal capability and responsibility, again changed or reconfigured by choice.

Gender neutrality is integral to the family law equality principle.8 Because men and women are equal, without any significant gender differences, each can play the gender-neutral role of parent. This is reflected in custody rules that no longer incorporate nineteenth century paternal preference or twentieth century maternal preference, but rather assign custody based on the best interests of the child. In its strongest model, equality and gender neutrality underlie the joint physical custody model of post-divorce childrearing, a model whereby each parent plays an equal role and children physically spend half their time in the home of each parent. Even under a primary caretaker model, equality ensures that both parents have equal rights to serve as the primary parent.9

Racial colour-blindness is also integral to the family law equality principle. Indeed, constitutional norms reject colour-conscious discriminatory laws or their application with respect to marriage and child custody.1° On its face, family law doctrine does not differentiate on the basis of race, in contrast to a history of legal disruption and undermining of African-American families. II

The family law model of equality operates upon a context of work-family relationships and structures that are highly unequal, strongly gendered, and

  1. See eg, Martha Fineman, The Illusion of Equality: the Rhetoric and Reality of Divorce Reform (1991); Ann Estin, "Maintenance, Alimony, and the Rehabilitation of Family Care" (1993) 71 NC LR 721; Jana Singer, "The Privatisation of Family Law" [1992] Wisconsin LR 1443.

8 Ibid.

9 Ibid.

to Loving v Virginia, [1967] USSC 168; 388 U.S. 1 (1967); Palmore v Sidoti, [1984] USSC 86; 466 U.S. 429 (1984).

  1. Dorothy Roberts, "The Value of Black Mothers' Work" (1994) 26 Connecticut LR 871; Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and The Family from Slavery to the Present (1985). It is beyond the scope of this paper to compare the history of race, and the legal treatment of race, in the United States and New Zealand.

racially stratified. The preferred two parent equality model of family reflects the dominant family form of white families, but not the dominant family form of African American or Hispanic communities. Single-parent families are the dominant family form in African-American families, roughly 60% of families.12 The structure of single-parent families has deep historical roots in the rending apart of slave families, the economic pressures of Reconstruction and post-Reconstruction, and the impact more recently of welfare policies and continued lack of economic opportunity.13 The dominant origin of single-parent families in the African-American community are couples who do not marry rather than couples who divorce." Least numerous are those single-parent families created by the death of a spouse.

The existing structures of family law, however, are most generous to the children of widows and widowers, providing benefits nearly twice those provided to children whose parents are on welfare.15 Children who receive both survivors' benefits and welfare benefits are overwhelmingly white; Black children are disproportionately represented as recipients of welfare benefits only, rather than survivors' benefits or both survivors' and welfare benefits. Divorce law, the next best legal structure, (at least from the perspective of benefits to children) also predominantly serves white families. Although the custody and child support structures of divorce are theoretically available to non-marital children, they are functionally unavailable to many non-marital children because they can be triggered only by establishment of paternity. The rate of paternity establishment for non-marital children is an alarmingly low 30%. 16 For 70% of non-marital children, there is no access to the preferred structure because of inability or failure to establish paternity. The "neutral" structure of family law, then, in the context of the form and structure of Black families, provides the most minimal, most stigmatising level of support. Finally, that structure also largely fails to recognise the role of extended family structures more prevalent among African-American families.

Family law also operates upon a strongly gendered family structure.17 Historically, gender divisions in the workforce and gendered roles in the family were accepted as a given. Ideally, men engaged in wage work to support their families; women raised children and performed the household work. The pattern of a sole male breadwinner and a stay-at-home wife raising children

12 Rawlings, supra n 4.

13 Supra n 11.

14 Rawlings, supra n 4.

15 Dowd, supra n 1 at chapter 2.

16 Ibid, chapter 4.

17 Nancy Dowd, "Work and Family: The Gender Paradox and the Limitations of Discrimination Analysis in Restructuring the Workplace" (1989)24 Harvard Civil Rights-Civil Liberties LR 79.

has become the exception rather than the norm. Under 10% of American families with children under the age of 18 conform to the traditional pattern.I8 In two-parent households, both parents are in the workforce. This shift in work-family patterns is evidence to some of the adoption of gender-neutral, equal work and family roles. However, gender patterns in both work and family persist despite the abandonment of the traditional pattern. In effect, that model has been modified but not discarded.

The traditional gender pattern persists in the work patterns of women with children under the age of four: of those women, nearly half are at home.° Once women enter the wage workforce, furthermore, they are more likely to accommodate work to family responsibilities, as reflected in their choice of work and their greater likelihood of working part-time. At the same time, their choices are constrained by the limited employment opportunities for women. To the extent the work structure remains hostile to parenting, women are disproportionately disadvantaged. Ongoing barriers of sex segregation that relegate a significant portion of women to "women's work" also limit women's choices. Employers' expectations about women's family responsibilities are strong, so strong that they affect the opportunities for all women, not simply women with children.20

Women's predominant, even sole, role in caring for children persists despite women's increased participation in wage work. Men have not significantly expanded their household or child care responsibilities. Instead, women do a double shift.21 Thus, amidst an enormous shift in the work-family balance for women, there is this remarkable persistence of traditional roles, albeit significantly reconfigured. The reconfigured work-family roles persist across class and race lines, and along the life course of employment for women. If traditional and reconfigured families are compared, women's roles are remarkably similar. The work patterns of women in married and single-parent households also are remarkably similar. In fact, women spend less time working on home-related responsibilities in single-parent households. The two family types do not significantly differ in areas of job-family management, role strain, or degree of problems with children. Household work in two-parent families is still women's work: women perform 2 to 3 times more tasks than do men.22

The impact of women's real and perceived family responsibilities in

18 Ibid.

19 Ibid.

20 Ibid. See also Vicki Schultz, "Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument" (1990) 103 Harvard LR 1749; Dowd, supra n 5 (1995).

21 Arlie Hochschild, The Second Shift (1989).

22 Dowd, supra n 1.

combination with the very real difficulties they face in the wage labour market means that women are both economically and socially unequal. That inequality, and in particular women's economic impoverishment, is largely hidden within marriage. Women are poor, or become poor, within marriage particularly once children are added to the family. Their poverty is linked to the impact of children upon their opportunities in the wage labour market, the lack of value attached to the unwaged work done in the household, and their consequent dependency on another wage earner. Their poverty becomes starkly apparent at divorce, when women are expected by the equality doctrines of family law to maintain their familial responsibilities while shouldering greater (more equal) economic responsibility. Their inability to do so is caused not by lone parenthood; its roots are in the sexual division of labour in the family and continuing sexual discrimination in the workplace.

Placed in the social context of work and family, the typical single-parent family develops within the marital family. In that sense, every parent is a single-parent. Mothers' parenting includes all or the vast majority of unwaged household work and caretaking, combined with wage work. Fathers' parenting, in contrast, is predominantly focused on economic caretaking, combined with minimal social caretaking and household work.

The legal rhetoric of equality, however, hides this unequal context especially well with respect to two-parent marital families. It thereby hides the inequalities within families that often are the result of the interaction of this unequal context with a "neutral" equality principle for families. However, inequalities are apparent at divorce.

At divorce the legal system reconstitutes the single-parent family structure within marriage as a devalued post-divorce family form. The creation and perpetuation of poverty is the price the law imposes upon post-divorce single-parent families through an inadequate economic support structure. Furthermore, the law permits fathers' abandonment of their children by allowing fathers to lessen or even ignore their psychological and social commitments to their children, as well as their financial support of their children. In addition, at divorce the ideology of choice justifies disparate roles. The myth of equal job opportunity theoretically provides a cure for any past or present familial inequality. Equal availability of jobs, it is presumed, will permit ongoing support as well as a chance to reconstruct, albeit outside the vows of marriage, two co-equal parents. These are widespread patterns which the law does little or nothing to correct.

The stigmatisation of single parents is accomplished at divorce by the operation of a system premised on equality laid upon a work-family context of inequality. Certain principles inform the current divorce structure. They include the following: no party should be held at fault; each party should leave the marriage with roughly half the property created or acquired during the marriage; neither

party should bear long-term obligations to the other spouse; parenting and financial responsibility for children should be shared after divorce; and all allocations of property and childrearing responsibilities should be done on gender-neutral principles. Marriage is viewed as a partnership of equals who share work and family responsibilities equally, and who have equal opportunities to structure their private as well as work lives. It is assumed that post-divorce each spouse can function independently on the same terms as he or she did during marriage, limited only by individual accomplishment and effort. Any interruption of wage work or modification of work behaviour in response to family responsibilities is presumed remediable.23

Although employment law is clearly separate from family law, assumptions about the wage labour market and the protections afforded by employment law pervade divorce law. The economic structure of divorce presumes the ability of single parents to support themselves and the children of the marriage on one salary. Divorce law also presumes that parents either remain in the wage labour market during the marriage, or that the market permits short-term withdrawal, accommodates children's needs, and welcomes workers who wish to resume full-time wage work. If family law fails to achieve shared child support and parenting, family law relies on an assumption that the labour market is flexible and permits time to parent or to generate sufficient income to buy parenting or household services. The presumptions about the wage labour market are grounded in the operation of the non-discrimination principle of employment law that ensures equality of opportunity and treatment.24

The realities of divorced single-parent families are starkly at odds with these presumptions of family and work law. Economically, men's position improves, while that of women and children markedly declines. The inequalities of the wage labour market frustrate women's attempts to close the gap. A substantial proportion of jobs do not provide sufficient income to support a family. Women's mere presence in the workforce, and working full time, does not ensure the same rate of return in income as that of men. Withdrawal from the labour market, even for a short term, has significant consequences which are disproportionately felt by women. Part-time work is not a viable alternative either. Overall, the labour market has shifted only slightly to accommodate the combination of work and parenting. The accommodations tend more toward the episodic and temporary rather than a reorienting of the structure of the workplace.25 At the same time, post-divorce caretaking patterns are remarkably gendered. Women retain primary or sole custody in roughly 90%

23 Ibid.

24 Ibid.

25 Nancy Dowd, "Work and Family: Restructuring the Workplace" (1990) 32 Arizona LR 431; Nancy Dowd, "Family Values and Valuing Family: a Blueprint for Family Leave" (1993) 30 Harvard Legislation 335.

of divorces. Men not only do not share caretaking, they frequently abandon their relationships with their children within 2 years of divorce. A significant portion also abandon their financial responsibilities as wel1.26

Rather than supporting equality, the structure of divorce law seems designed to create stigma or to do nothing to prevent it. Under the guise of equality and choice, divorce law has recreated, or even worsened, the explicit gender hierarchy of earlier legal regimes. Divorce law penalises single custodial parents, predominantly women, by creating their poverty. In turn, they are blamed for the consequences of the poverty of their children. At the same time, until recently, the legal system has largely permitted non-custodial parents, who are mostly fathers, to escape financial responsibility without consequence, blame, or stigma. Half of the children raised by single mothers are below the poverty line.27 Single fathers, whether with or without their children in their household, do not share this high poverty rate. The poverty of single mothers is directly tied to their limited opportunities in the wage labour market, the inadequacy of child support and the frequency with which it is still not paid, and the lack of any state support to either replace lost child support or supplement the gap created by labour market discrimination and current parental responsibilities. The consequences of poverty are well known and tragic. Seventy percent of children will spend some time in a single-parent household before reaching the age of majority; the consequences of poverty for single parents are therefore profound.28

The economic status of women and men after divorce is remarkably different, and that difference is accepted within the equality regime. Both the role of unwaged work in the family economy and the consequences of children's dependency are missing from the current legal regimes structuring family and work. Work and family have not been reconceptualised to reflect the necessity of more than one income for most families. In addition, we lack a vision of gender equality based upon non-subordinating gender roles.

Amidst the context of ongoing inequalities in both families and work, law takes equality as its goal but fails to provide the structures to ensure equality or to address issues of dependency. When a marriage dissolves, family law revives the myth of work equality of opportunity and connects it to the family law goals of gender neutrality, gender equality, and self-sufficiency. Divorce, however, exposes the hidden construction of impoverished single parenting within the marital family, which is the consequence of the combined equality regimes of family and work law. Family law conceptualises employment patterns and family responsibilities as private. Employment law conceives

26 Dowd, supra n 1.

27 Ibid.

  1. Arthur J Norton and Paul C Glick, "One Parent Families: A Social and Economic Profile" (1986) 35 Family Relations 9.

workforce positions and income as matters of choice.

By ignoring the context of inequality as well as the consequences of legal structures, law is an active creator of stigma. Law ignores unequal gender roles and the perpetuation of a highly gendered work-family structure. Law also ignores dependency. Previous legal models of family presumed dependency; the current equality model rests on a presumption of independence. We ignore dependency created within marriage by walling it off as private. By ignoring gender roles and dependency, it is easy to undervalue or disregard entirely unwaged work.

If we were to face squarely the equality issues that family and work law ignores, we would have to consider a number of troubling, difficult issues. First, we would have to decide whether equality should be based on a single-parent or dual parent model. Our current model of parenting is a single-parent model. We presume that one parent will be the sole or primary parent, while the second parent, whether within or without the household, will be far secondary. To the extent that we continue that model, we have to think through what that means in equality terms. It might mean that the single-parent should as often be the father as the mother. It might also mean that a single-parent model creates dependency for the caregiver that must be taken into account. We can support all single parents, whether within dual parent households or single-parent households, to ensure equal opportunities for children. On the other hand, if we base equality on at least two parents for each child, then we need to envision what that might mean. If it means two parents equally involved in caregiving all the time (not seriatim), then we must foster the structural change to permit, or even mandate, that to happen. We have functioned from a notion of presumed gender neutrality for a long time. That presumption has only provided the opportunity for actions contrary to traditional gender roles; it has not undermined the gendered allocation of familial roles in the vast bulk of families.

Second, dealing with the particular problems of single-parent families requires us to be very gender-specific in addressing the problems of mothers and fathers. The agenda for single mothers most immediately is economic: ensuring sufficient income while not denigrating their caretaking role. The agenda for fathers most immediately is reconstructing fatherhood into a non-dominating, caregiving role. Gender distinctions relate to differences constructed within marriage and in the relationship between work and family, therefore the issues of single parents are inevitably the issues of all parents.

Finally, a different understanding of equality must incorporate race differences as well as gender differences. For example, the economic disadvantage experienced by African-American men as compared to white men confounds the assumptions about the gender differential and shifts the agenda of what needs are most urgent for single parents. It requires attention to race differences

to avoid further marginalising Black men. In addition, the bulk of single-parent Black families are the result of parents never marrying rather than the result of divorce. Attention to the interlocking equality paradigms of divorce and employment law should not be used to separate or segregate single-parent families, particularly when the result is a racial separation.

What we now have is a single-parent model that is supported to some extent within marriage, but is wholly unsupported and discouraged outside of marriage. This harms two-parent families and it is devastating to divorced and never-married single parents. It is an irrational distinction for children. If we truly envision equality to mean a dual parent family where children have the benefit of twice as much parenting, or even of parenting equally divided among mothers and fathers, then we must construct a system with that set of assumptions. In particular, we have to think through how to reorient fatherhood to create a different norm of parenting within and outside of marriage or shared households.


The equality principle operates in a different way when the perspective from which you view single-parent families is the perspective of the children in those families. Rather than legitimating and obscuring the context in which these families operate, and functioning as an active creator of the poverty and stigma that single-parent families face, from the perspective of children, the equality principle is instead silent, seemingly inoperative. Theoretically, children have a strong claim to an equality principle that would ensure rough equality of opportunity as a fundamental entitlement in a democratic society. Since so much of children's future livelihood is connected to the family context in which they are raised, and because all the evidence on family form and structure indicates it is irrelevant to family success, it would further seem that children could argue that equal treatment of various forms of family is fundamental. These arguments would prohibit, then, differential family treatment based on form to the detriment of children's opportunities. However, we recognise the state's interest in promoting family by permitting certain family forms to be valued over others. Challenging the state's ability to value certain families and stigmatise others pits equal protection against the state's ability to make moral and/or social judgments.

The second way in which equality principles might operate to the benefit of children is not only to value all their families, but rather to ensure resources that ensure opportunity. This is a harder equality argument to make because it requires affirmative support rather than simply prohibiting negative action. Yet without a concept of equality that encompasses affirmative support, equal acceptance of various forms of families ensures little more than ideological

support for single-parent families. In order to expand substantive support and to mandate a minimum threshold of support, equality principles must encompass a reconception of the relationships of families to community and to the state. The justification would be to ensure equal opportunity for children, as well as making real a social commitment to, and taking responsibility for, children.

The affirmative valuing of single-parent families, indeed of all families, is rationally premised on the evidence that structure or form does not dictate the success or value of particular families. When socio-economic status is held constant, children succeed just as well in single-parent families as they do in two-parent families. Form does not dictate whether a family is functional or dysfunctional. It may simply mean that families are different. Indeed, single-parent families have their own dynamics, including some benefits as compared to two-parent families. These families are models of networking and extended family systems. The children are more likely to be more independent, self-reliant, and more committed to gender equality.

The value of family differences is not limited to single-parent families. There are other forms of family that do not conform to a two-parent, heterosexual, marital norm that work for children. Relatives other than parents, non-relatives with close relationships, multiple parents exceeding the two-parent norm—all the myriad variations of family succeed or fail for reasons other than structure. Most notably, the argument that a rational basis does not exist to exclude gays and lesbians as parents, as families, and as married couples, is implicated here.29

Focusing on the definition of "family," the goal is to entitle single-parent families to the same or similar benefits as those afforded to two-parent marital families, or at a minimum, equal respect. While there is no doubt that single-parent families are families, constitutionally it has nevertheless seemed permissible to elevate two-parent marital families and stigmatise single parents.3° One strategy would be to attack that favouritism and include single-parent families within the circle of preferred families. A more radical strategy would be to attack the state's entitlement to prefer a particular form of family at all. A more inclusive understanding of family then might be a basis to remove stigma, for example by eliminating entirely the legal concept of illegitimacy, or might be the basis for providing equal benefits to single-parent families as those enjoyed by two-parent marital families. A middle ground

29 Barbara Bennett Woodhouse, "It All Depends on What You Mean By Home" (unpublished

manuscript on file with author); Ruthann Robson, "Resisting the Family: Repositioning Lesbians in Legal Theory" (1994) 19 Signs 975.

30 See Martha Minow, "The Free Exercise of Families" [1991] University of Illinois LR 925.

strategy between these two would allow the state to show a preference for particular structure of family, but not to stigmatise all others.

In order to provide real change in the material circumstances of single-parent families, however, we must reconceptualise the relationship between family and community. Our individualistic, privatised view of family precludes a collective, communal responsibility for children. A reoriented relationship between state and families must be grounded in principles of equality and children's rights.3I

The basis for that reorientation is in thinking about families, and children, from gender and race perspectives. Privileging one family form and stigmatising others, resulting in disproportionately valuing the majority family structure of white Americans over the majority family structure of African-Americans and other people of colour, constitutes discrimination. Similarly, stigmatising a family form overwhelmingly headed by women, particularly on the basis of the absence of an opposite-sex partner, also constitutes discrimination. If families are critical to individual growth and development, as well as benefiting social interests, then families must be supported in order to afford every child this primary, critical social structure and in order to maximise individual opportunity as well as social benefit. If equality principles require that gender and race not be determinants of individual accomplishment, then providing support for the most immediate and influential of social structures in order to ensure individual development should be required. The role of the state is to ensure that equality of opportunity by ensuring that sufficient resources are present for every child to maximise her potential.

Our concept of children's rights will define the substance of the opportunities to be provided to all children. From what we know about single-parent families, the needs of the children in those families most clearly are for economic support, nurturing support, and access to society's opportunity structure, especially education. Providing for economic needs requires redistribution of wealth and recognition of social as well as individual responsibility for, and benefit from, children. There may be debate over defining the outer limit of economic needs, the extent to which adult inadequacies should be compensated for, and what level of opportunity constitutes equality. However, there is a large gap of basic need to be closed; surely that can be a floor from which to start. From that base, we can argue about when we have reached a ceiling that ensures equal opportunity.

It is also critical that equality encompasses non-economic support. Dependency is not simply economic; it is social as well. As Martha Fineman

31 Barbara Bennett Woodhouse, "Hatching the Egg: a Child-Centred Perspective on Parents'

Rights" (1993) 14 Cardozo LR 1746; Wendy A Fitzgerald, "Maturity, Difference, and Mystery: Children's Perspectives and the Law" (1994) 36 Arizona LR 11.

has pointed out, there are two dependencies with which we must grapple: the "inevitable dependency" of children (and others), and the "derivative dependency" created by the caretakers giving care.32 Law's withdrawal from overt support of caregiving and caretakers has contributed to rendering dependency invisible and therefore unsupported, to the significant detriment of children.

A constitutional basis for ideological and practical support for single-parent families rests on principles of pluralism, freedom, and social responsibility, as well as equality. Principles of pluralism and support for difference and diversity are the basis to reject a privileging of any particular family form. Freedom to choose one's family and to make choices about family have been the justifications for considerable privacy accorded to families. Instead of ensuring that family privacy is respected, however, what is needed is the assurance of support for family. As Dorothy Roberts has argued, a purely negative right precludes meaningful autonomy for many families. An affirmative right, in her view, would ensure that hierarchies of race, gender and class would not impact on free choice-making.33 It is clearly important for single-parent families that the conventional role of privacy doctrine should be retained, in order to limit the reach of state regulation and intrusion. But that need not be the sole understanding of privacy. The protection of diversity because of the valuing of what families do can best be accomplished by ensuring a threshold of economic and non-economic support. This threshold is consistent with, and perhaps even mandated by, a different understanding of privacy. The protection of diversity and its support would encompass an affirmative vision of equality for children.


The rhetoric of support and respect for family is sharply at odds with the realities of the difference in the ways families, and particularly the children within those families, are treated. Nowhere is this more evident than in the rate of child poverty: in 1995 three out of every ten children were poor; by the end of the century it is estimated that four out of ten children will be poor.34 Equality concepts are used in some strange ways in this area. Mostly they are used to hide inequalities in existing contexts that lead to outcomes that perpetuate or aggravate those in equalities, while remaining strangely silent when it comes to ensuring equal opportunity. If law fails to acknowledge

  1. Martha Fineman, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies (1995).

33 Dorothy Roberts, "The Value of Black Mothers' Work" (1991) 26 Conn LR 871.

34 Braveman, "Child Poverty and State Constitutions" (1988) 38 Emory Law Journal 577.

context, and refuses to measure by outcome, then promises of equality are hollow. More meaningful equality that would guarantee that men and women be equally committed to children is essential.

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