Academic journal article Emory Law Journal

Notes on the Neutered Mother, or toward a Queer Socialist Matriarchy

Academic journal article Emory Law Journal

Notes on the Neutered Mother, or toward a Queer Socialist Matriarchy

Article excerpt

This tribute to Martha Fineman focuses on a key work that, to me, occupies one of the highest points in the intellectual arc of her career, namely her pathbreaking 1995 book, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies. Below, I read it from the perspective of queer theory.1 I first consider its unqualified demand for the abolition of marriage, and then turn to its commitment to refocusing family law on the figure of the Mother-a predecessor of the vulnerable subject, a theoretical construct that has come to dominate Fineman's more recent work.2

Before proceeding, let me comment briefly on Martha Fineman's status as a theorist-a qualification that is necessary, in the first place, even to consider her status as a queer theorist. In The Neutered Mother, Fineman builds her argument from an examination of law, history, and politics, yet the book soars far above and beyond the usual policy prescriptions that accompany works of legal scholarship. To be sure, her call for the abolition of marriage, for example, could be considered a policy recommendation. Yet Fineman is not naïve: she knows that the idea has zero likelihood of success in the current political climate. Significantly, though, she believes that envisioning what the world would look like sans state-sanctioned marriage is a vitally important intellectual project. She states the task of what she calls "utopian theory" with characteristic simplicity and clarity:

The production of practical suggestions is not the only justification for theory . . . . Sometimes re-visioning, even if utopian, is valuable simply because it forces us to look at old relationships in new lights and thereby understand some things about how we perceive the natural or normal, as well as how we create the deviant.3

Methodologically, Fineman's The Neutered Mother and queer theory share a commitment to utopian theorizing and the deconstruction of norms.4


The most obvious way to read The Neutered Mother as a contribution to queer theory is to focus on its unequivocal and unqualified call for the abolition of marriage-a cause once embraced by queer politics, albeit in the last millennium.5 Although she does not state her case in quite these terms, Fineman objects to marriage essentially as a form of state-sponsored discrimination against single people-an institutionalized social structure that delivers ideological and material subsidies, through law and culture, to men and women who choose to marry.6

More specifically, Fineman objects to the fact that the privileged status of our contemporary conception of marriage is premised on the notion that romantic sexual affiliation between a man and a woman provides the essential foundation for family. She aptly calls this notion "the sexual family," an understanding that excludes other forms of intimacy as less deserving of state protection and support.7 (After Obergefell v. Hodges, the right to marry has of course been extended to same-sex couples, but that has not altered the basic logic of marriage as a privileged sexual coupling.8) Although Fineman's critique of the sexual family might be read as anti-sex-or at least not affirmatively "sexpositive"- her position is very clear.9 By telling the state to get out of the business of marriage, Fineman wants to level the playing field for all manner of sexual affiliations, regardless of the gender or the number of parties, for example, that such arrangements may entail. As she observes emphatically, in a post-marriage world all voluntary adult sexual interactions "would be permitted-nothing prohibited, nothing privileged."10 Fineman's argument against marriage and the sexual family it grounds is, in short, anti-state-not anti-sex. In fact, it is explicitly in favor of sex and its deregulation: to liberate sex, we must untie it from wedlock. "Instead, the interactions of female and male sexual affiliates would be governed by the same rules that regulate other interactions in our society-specifically those of contract and property, as well as tort and criminal law. …

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