Friends with benefits?

• Author: Rosenbury, Laura A.
• Position: Family law doctrine

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 f or family. Despite calls for increased legal recognition of diverse families, few scholars have considered whether family law should recognize care provided outside oft he home, and no scholar has considered whether family law should recognize the care provided and received by 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 caregiving 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.

TABLE OF CONTENTS INTRODUCTION I. PAST AND CURRENT CONSTRUCTIONS OF FAMILY LAW A. Eliminating Official Gender Roles B. Recognizing the Power of Boundaries C. Continuing to Privilege Comprehensive Domestic Relationships II. THE PLACE OF FRIENDSHIP A. The Law's Role in Defining Friendship 1. The Limits of Friendship's "Out-Law" Status 2. Consequences of the Law's Role B. The Functions of Friendship C. The Role of Marriage and Domesticity 1. The Gendered History of Marriage and the Home. 2. Maintaining the Divide Between Marriage and Friendship III. THE POTENTIAL OF NEW CONSTRUCTIONS A. Changing the Content of Family or Friendship 1. Friends as Family 2. Family as Friends B. Recognizing Pluralistic Personal Relationships and Conceptions of Care 1. The Power of Recognition 2. Guiding Principles C. Transforming Gendered Relationships 1. Relationships Between Women 2. Relationships Between Men 3. Relationships Between Women and Men CONCLUSION INTRODUCTION

Family law has long ignored friendship. Even recent attempts to expand traditional notions of the family have failed to consider whether friends might serve many of the functions that the law reserves for family. This silence may or may not be good for friendship, which is often thought to thrive outside of the law. But the silence frustrates the accomplishment of one of the goals embraced by most family law scholars: the achievement of full gender equality, within the family and without.

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 nonspousal 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 caregiving 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 nonconjugal 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. Instead, family law scholars assume that if individuals do not have a family based in the home, they are essentially alone and have no caregiving 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.

This Article then explores what it would mean to change the current construction of family law by bringing friendship into the law's accounting. Whether legal recognition of friendship could disrupt the privileging of comprehensive domestic caregiving relationships depends on one's view of the interplay between law and society in the construction of family law. Many legal theorists argue that the law can never produce social change but rather can only follow and reflect such change. Pursuant to such a view, family law's focus on domesticity within the home reflects the social practices of most individuals. This Article takes a different view, highlighting the ways that the social practices of both friendship and family are already consequences of the law. Changing the law's focus can therefore change understandings of both family and friendship, potentially leading to greater opportunities to structure life free from state-supported gender role expectations.

Part I of the Article briefly reviews family law's commitment to gender equality, beginning in the 1970s, and various scholars' critiques about the limits of that commitment given states' resistance to recognizing same-sex marriage and other nontraditional living arrangements. These critiques have been confined, however, to the question of whether people in certain sexual relationships or cohabitation relationships--or both--are deserving of family law recognition. None of the critiques explores the consequences of family law's failure to consider relationships between friends who do not live together or who do not hold themselves out as sharing a sexual commitment.

Part II turns to friendship, first examining the ways the law already shapes friendship by defining it against state-recognized familial relationships. It then analyzes the functions often performed by people who self-identity as friends, specifically friends who do not live together or who do not define their relationship by reference to a sexual commitment. By comparing these functions to the functions generally assumed to be performed by spouses and other family members, Part II considers and critiques the values privileged by the law's recognition of family and corresponding silence with respect to friendship.

Part III then examines how legal recognition of friendship could begin to disrupt gendered patterns of care. Ending the silence with respect to friendship does not mean that family law must rigidly regulate friendship or even extend friends the same benefits accorded to families. Indeed, such regulation could reinforce, rather than challenge, the privileging of marriage and other family relationships. Nor is the elimination of marriage required. Instead, family law could consider ways that the law might support more, and multiple, forms of personal relationships between adults, thereby acknowledging diverse conceptions of care and reinventing individuals' options with respect to both marriage and friendship.

1. PAST AND CURRENT CONSTRUCTIONS OF FAMILY LAW

   Family law is a state construction, subject to change and reinvention. (1) The states determine who may constitute families recognized by the state, and the states delineate the responsibilities and privileges of those family members. Indeed, the content of family law has changed dramatically over time in the United States. Initially called "domestic relations," family law at the time of the nation's founding encompassed all of a household's internal relationships, including master-servant, master-slave, husband-wife, and parent-child. (2)...