Lovers, Legal Strangers, and Parents: Negotiating Parental and Sexual Identity in Family Law

Article excerpt

This is a study of meaning making and identity construction in child custody cases involving gay or lesbian parents. In it, I investigate the language of all such recorded decisions over the past 50 years, focusing on how judges-in interaction with the litigants before them-construct, negotiate, deny, and confirm the sexual and familial identities of the parents and would-be parents involved in these custody contests. Employing a constitutive framework and drawing on the social, scientific, and feminist literatures on sexuality, family, and law, I find that through multiple discursive processes, from self-representation to imposition to negotiation of new spaces of compromise, family law actors bring together sexual and familial statuses often treated as exclusive of each other.

[T]he concepts of homosexuality and adoption are so inherently mutually exclusive and inconsistent, if not hostile, that the legislature never considered it necessary to enact an express ineligibility provision .... Homosexuality negates procreation. Announced homosexuality defeats the goals of adoption.

-In the Matter of Adoption of Charles B., 1988

To suggest that adoption petitions may not be filed by unmarried partners of the same or opposite sex because the legislature has only expressed a desire for these adoptions to occur in the traditional nuclear family constellation of the 1930's ignores the reality of what is happening in the population.

-Matter of Adoption of Camilla, 1994

Although Domestic Relations Law does not explicitly define the term "parent," we are of the view. that the petitioner does not come within the meaning of that term.

-Alison D. v Virginia M., 1990

An oft-citied theme in law and society research is the interplay between the social world and everyday life, on the one hand, and the law and its institutions, on the other, in reciprocally constructing meaning (Ewick & Silbey 1998; McCann 1994; Phillips & Grattet 2000; Sarat & Kearns 1993; Yngvesson 1993).Just as the social world necessarily influences the making and interpretation of law, the law has the ability to influence, whether coercively or subtly, our social existence. One particularly potent way in which this happens is through the power of the law to create and shape meanings, definitions, and identities in ways that are consequential for the everyday lives of citizens. Many researchers have discussed, for example, the highly consequential and potentially devastating personal impact of being labeled as a "criminal" by the legal system (Becker 1963; Braithwaite 1989; Goffman 1963; Lemert 1951). The effects of acquiring such an identity come not only in the form of structural limitations (such as the inability to vote) and institutional requirements (such as requiring one to "register" or stay in contact with a parole officer) but also in more subtle and personal forms-what has alternatively been called "labeling" (Lemert 1951) or "shaming" (Braithwaite 1989). The process of being cast as a "criminal" and inheriting that identity is an extreme and quite visible example of how the law may shape and impose identities.

This process also happens in more subtle ways, under other conditions and in other legal forums. Feminist scholars have noted repeatedly the power of legal institutions to define, delimit, and constrain women's activities and identities in both the public and the private spheres.1 Groups seeking assistance from the law in asserting their political and legal rights have also been subject to the law's definitional powers (see Espeland 1994; Merry 1990). Espeland (1994) notes, for example, how the law can simultaneously represent a group's interest (in her case, the Yavapai community of Native Americans) and impose on the group an identity that differs from the group's self-constructed identity.

In many cases, judges are in the position to decide who are legitimate legal actors and who are not-thus, defining some people or groups as appropriate legal subjects and imposing on others a status of legal nonexistence (those who are deemed to have "no standing" or whose problems are deemed to be outside the realm of the legal authority) (see, e. …