Relationality, Deviance, Privacy:Martha Albertson Fineman's "Mother-Child" Proposition

What constitutes a deviant family? The political right and the worlds of public policy and normative cultural discourse that it subtends view single mother-headed families and families headed by lesbians and gay men to be deviant. The actual deviance of these families is less a matter for debate as it is an assignment. In this manner, "deviance" is a discursive mode that understands and figures such families in deficient relation to the nuclear, heterosexual, normative family. Whatever the degree of "deviance" such families maintain from a familial norm—be that norm fictive/ideal or otherwise—the immediate questions for feminist or queer inquiry are practical: what are the sources of this assignment of "deviance"? How do they operate? What do they foreclose? How does the link between marriage and deviance manifest itself? What does this link texture and how does it affect public policy, social judgment and the (re)production of culture? These questions frame the following exegesis and critique of feminist legal theorist Martha Fineman's theoretical/legal propositions regarding the family in her The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies. [2] In this article, I examine Fineman's proposed model for the reconstruction of family law in light of considerations of deviance, privacy and underlying terms of "relationality," allowing the above questions to frame my analysis.

It is an interesting feature of familial discourses that what is inscribed as cultural deviance in terms of familial arrangement and sexual practice is not necessarily actually deviant. This dissonance may hold the key to the function of the assignment of "deviance." In turn, this dissonance indexes how familial arrangements and circumscribed sexual practices can establish themselves as benchmarks for the measurement and assignment of deviance despite inhabiting positions inapplicable to the entire range of cultural life. [3] Martha Fineman's theories form such an impressive counterdiscourse in reaction to the ideologies that position single motherhood as deviant, because they disregard the existing socio-political calculus entirely, proposing in its place a way to make motherhood (and other forms of care-taking) visible as labor and occupation. Such a move also appraises the right to privacy as a desired end, in turn politicizing the legal function of privacy itself in the existence and reproduction of familial normativity and deviance. More practically vis-à-vis feminist and queer concerns with single mothers and other dissident relational structures, Fineman's isolation of privacy and strike against companionism proposes opening up a legal-cultural space for alternative parenting beyond the imperatives of the nuclear (companionate and heterosexual) family. The applicability of Fineman's theoretical apparatus is thus teeming with feminist and queer political implications.

Fineman's abstraction removes privacy from its naturalized encasement in heterosexual marriage. In marking privacy as a legal/cultural value unto itself, and by advocating its prospective utility in a manner that runs counter to its prevailing orientations, Fineman challenges the very establishment of the category of "deviance" in legal constructions of the family. This politicization of privacy is a primary feature of Fineman's interrogation of marriage in The Neutered Mother.

Feminist Critiques of Marriage

Fineman's mode of critique of the family bears greater similarity to early second-wave feminist critiques of the family than it resembles contemporary approaches. A major feature of Fineman's mode of critique is her attention to the continued father-centeredness of family law and policy. It is in response to the inadequacy of father-centered family policy and law that Fineman provides a blueprint for a realignment of the "family" and with it a reconstruction of terms of primary relationality of enormous value for contemporary feminist and queer cultural politics.

Feminist perspectives unequivocal in their negative regard of marriage and the family were plentiful in the 1970s. Observe Kate Millett's wording in her "sociological" account of sexual politics in Sexual Politics:

The family in Millett is a site of regulation of roles. Behavior and expressions of difference are disciplined in the family. The family functions as a microcosm of the saturating inequality beyond it. Marriage is the unspoken adhesive for the family, that which makes it legitimate. Marriage also serves as a relational model of inequality within the family for the divisions of labor and sociality outside of it.

A year after the publication of Millett's Sexual Politics, Sheila Cronan issued a principled attack on marriage, later published in the anthology Radical Feminism. In her article "Marriage," Cronan walks through several objections with marriage: the husband's legal right to sex from his wife; the sexual disadvantaging of women in marriage; the adhesion of gender roles to the expected duties of wives; and the encouragement of career abandonment for many women entering marriage. Though less ideological than Millett's account, Cronan's article suggests a durable feminist opposition to marriage in the 1970s.

The marriage-critical perspectives in these and other feminist scholarly works of this period are addressed by Barbara Easton in a synthesizing essay from 1978. Therein, Easton argues that the second wave feminist microcosm theory of marriage confuses cause and effect in its analysis of marriage and the family:

Easton singles out Millett and Shulamith Firestone for arguing that the oppression of women in social domains beyond the family, "had its origins in women's role in the family." [6] Easton's interesting essay also argues that radical feminism's focus on familial dynamics, gender roles, emotional states and interpersonal relations is a reaction to the end of literal patriarchal power in intimate spheres and the rise of a new, post-patriarchal form of male dominance. Easton argues that a gender polity characterized by the most basic form of formal legal equality demands a feminism that penetrates liberal ideologies of equivalence. This assertion suggests that second-wave radical and liberal feminisms alike moved into domains previously viewed as beyond politics, demonstrating that the privatized spheres of family, intimacy and emotion are in fact tremendously political zones of interaction, that they are often, in fact, sites where sexual politics are violently, hyperactively condensed. What happens when patriarchal assumptions—founded on ideas formed around the desideratum of father-rule—continue to regulate the legally abstract, equivalence-oriented post-patriarchal terrain? It is this clash between patriarchal and post-patriarchal organization of social life and the law that Martha Fineman addresses.

Fineman against the Feminist Grain

Marriage itself has declined as a subject of feminist investigation since the 1970s. [7] The brief flaring-up of direct feminist opposition to marriage in the early 1970s has not gone without commentary. In her overview of writings "against" marriage, Chrys Ingraham notes that marriage laws in general seldom come under feminist criticism:

Martha Fineman's Neutered Mother may be a bit old-fashioned, then, in its pursuance of an anti-marriage angle close to these early 1970s second-wave feminist perspectives. Its old-fashioned approach to marriage is nonetheless extremely relevant to contemporary concerns about family construction. By centering on privacy and suggesting its separation from heterosexual companionate marriage, Fineman's opposition is supple and broadly applicable.

The Neutered Mother proceeds with the formulation that the interpersonal, intimate sphere must be reconstructed in a radical manner in order for it to work beneficially for women. Fineman advances a unique feminist argument for a new legal reconfiguration of interpersonal relations. Her proposal seeks to overturn marriage as the dominant definition of the family, a dyad centered on the couple form. Her critique and vision depart from feminist legal scholarship's unwillingness to engage with domestic sphere politics as a central theoretical preoccupation. Fineman opposes the use of privacy for its reification of what she terms the "natural-sexual family," but, importantly, seeks to retain its legal-political reach for her new relational form. Fineman's theoretical vision calls for the dissolution of marriage as a legal category and the replacement of marriage by a definition and construction of the family centered on the mother-child relation.

In the following pages I will isolate several pillars of Fineman's argument: the existence of what she calls the "natural-sexual" family; some characteristics of the alternative "mother-child" relationality she proposes; and the role of privacy as the legal-symbolic cornerstone of family in statist terms. After developing a critique of some elements of Fineman's proposition, I return to an exploration of some of its implications in closing.

Fineman's argument critically prefers the terms of sexual difference over objectives of equality or gender-blindness. This preference underscores the originality of Fineman's position in the context of contemporary American feminist legal theory. Feminist legal studies in the United States tend to adhere to a model of equality over a model of sexual difference. Legal research synthesizing scholarship of the last decades of feminist jurisprudence supports this assertion. Leslie Friedman Goldstein argues that by the end of the 1970s, "the norm that law must treat males and females alike in the sense of abstract formal equality appeared to have become increasingly reified among feminist jurists." [9] This theoretical tendency directs feminist emphasis on equality into an emphasis on sameness. Equality, of course, need not be yoked to "sameness," yet it is this conflation that seems to prevail in an American legal context. Fineman argues that the

This position (that equality is a misguided goal or philosophy for feminist cultural/political ends) is the animating aegis of Fineman's project.

Many of the clear differences between Fineman's project in The Neutered Mother and the mainstream direction of feminist legal theory in the United States return to a difference/sameness distinction. Fineman's interest in maintaining a notion of sexual difference in cultural interpretation and policy comes into conflict with mainstream legal feminism's maintenance that feminist goals are well served by an emphasis upon equality as a political end. Contra postmodern feminism's extreme discomfort with the biological-cultural associations called into consideration by any centering of women's identities on motherhood, Fineman does not hesitate to explore linkages between "women" as a class and the position of "mother." [11] The Neutered Mother declines to embrace the equality discourses of feminist legal theory and the anti-essentialist imperatives of gender-oriented feminist theory. Neither of these general positions serves Fineman's purpose, which is to chart a different theoretical path against the limitations of equality and those of anti-essentialism. Fineman's unwillingness to choose either of these positions renders her theoretical insights valuable, for different yet overlapping reasons, to feminists and sexual dissidents of varying kinds.

The Natural-Sexual Family: Fineman's Exposition

Fineman develops the term "natural-sexual" to identify the family as it is currently organized by marriage. Following Fineman's reasoning, the "natural-sexual" family organizes intimacy in a horizontal manner, with a heterosexual adult couple providing the axis of intimate relationality. [12] The "natural-sexual" family cannot be reformed substantively, in Fineman's analysis, because its division of labor along gendered lines is a socio-material fact as well as a deeply symbolic one. The symbolic dimensions of the "natural-sexual" family rely on roles explained by historical, psychoanalytical and cultural terms that justify domestic inequality. [13] The symbolic force of psychoanalysis comes under Fineman's scrutiny, in particular the Oedipal contextualization of attachment to the mother as a pre-social stage. The Oedipal arena establishes certain limits and meanings for marriage in Fineman's reading. A mere reform of marriage, maintaining the relational terms that marriage deploys, cannot adequately correct for the massive series of inequalities that couple-based definitions of the family enact. In order to overturn these inequalities and simultaneously strengthen the integrity of motherhood, Fineman seeks to replace the "natural-sexual" family with a non-sexual scheme of affiliation. While Fineman's mother-child model is dyadic like the husband-wife model, it is not similarly exclusionary; it is not "monogamous." A "mother" can have more than one "child" to whom she is legally bound, while, in contrast, a "wife" can legally have only one "husband" and vice-versa.

The extant "natural-sexual" family in Fineman's analysis centers on the sexual relation between husbands and wives. Sexual and erotic relations are understood as a subset of intimate relations of care. Fineman is critical of the power that sexual/erotic relations have, once institutionalized, to organize the entire realm of intimacy and care. She is similarly critical of the cultural jurisdiction that relationships formed around sex and desire have for organizing kinship relations. Fineman views sex as both reproduction and as intimacy. This interpretation fails to address forms of and meanings for sex outside of imperatives of reproduction and intimacy. Fineman's identification of sexual affiliations as the binding agent in the marriage relations is problematic once brought to the scrutiny of queer critiques of the social. Attention to queer theories of sexual politics elicits a view of the functions of marriage as either opposed or irrelevant to sex. Sex transforms into privacy the moment it is located within marriage, the moment it crosses the line from the public to the private sphere. Privacy displaces sex from its sexualness; it displaces sex from "sexuality." If, in this reading, sex is rendered invisible (naturalized into conjugal intimacy) by the sanctioned intimacies of heterosexual marriage, then the assertion that a "sexual" affiliation exists at the core of the contemporary construction of marriage and the family is untenable.

What Fineman calls the "natural-sexual family" might be better comprehended as the "natural-private family," buttressed by narratives of romance, companionate relationality and the expectation that proper adult intimacy transpires within marriages and between the married. Marriage, binding the "natural-sexual family," is neither crucially nor primarily a sexual relation. Marriage is virtually devoid of sex. Sex can only transpire outside of the bounds of privacy that marriage secures because sex transpiring within marriage is shielded by privacy. [14] Within marriage, sex ceases to be sex, or, phrased differently, marriage transforms sex acts into acts of marriage. This criticism is a significant one, engaging more than a semantic difference, though it does not discount the substance or vitality of Fineman's schematic argument. Fineman's criticisms of the "natural-sexual" family as the solely legitimate kernel of the nexus between intimacy and law are forceful, and I do not challenge the strength of their exposition. The argument of my critique here turns on what is recognizable as sex.

The Mother-Child Relationship: Against the Heteronormative Logic of Ascendance

"Mother" and "Child" are metaphors in Fineman's theory, metaphors with a significance that transcends racial, class, and cultural divisions. The relationality Fineman proposes in place of existing marriage, the Mother-Child relationship, is less fixed than it is descriptive. Fineman envisions it as capacious enough to include other caretaker-dependent relations, however it explicitly references the actual mother-child relationship as the basis of its model. Two "caveats" to Fineman's articulation of the Mother-Child dyad are that "men can and should be Mothers" [15] and that, at its core, the dyad can be distilled to "all forms of inevitable dependency." [16] On this count, one primary dependency is old age.

Like "Mother," "Child" "is an embodied concept, exemplifying the need for physical caretaking." [17] The possibility of men being recognized as "mothers" in Fineman's scheme acknowledges the gendered nature of the main work of parenting while it abandons a strict cultural essentialism that suggests that only women can "mother" children. This move thereby suggests an open identity for "mothers," offering a challenge to the cultural definition of mothers as women. It centers dependency and caretaking as fundamental primary relationship acts.

The notion of the Mother-Child partnership is antithetical to the symbolic domains ensnared by and in marriage. In an earlier essay, "Intimacy Outside of the Natural Family," clearly a formative piece of research for The Neutered Mother, Fineman is resolute about this incompatibility:

One key symbolic domain is the Oedipus complex. Whether or not the Oedipal model actually structures widely shared understandings of personality development and gender attainment, this model is a part of larger narratives of stage-based sexual and social development that position heterosexuality as an essential marker of the achievement of adulthood. The Oedipal scheme imposes upon children particular routes to the achievement of adulthood that assume heterosexual patterns of development. In a broadened reading, single mothers also fail to perform normative heterosexuality by existing outside of the nuclear family. As a symbolic blueprint, the Oedipal scheme fails to describe the lives of queers and the lives of single mothers affirmatively or adequately. In Fineman's alternate scheme as it relates to matters of individual character development, one need not "become" a mother to exist within the proposed Mother-Child coupling. One might remain a "child" for the entirety of a life; alternately, one might become the "mother" of one's mother; one might be a multiple "mother," as well, to "children" of different ages and stations of life. Here, the evolutionary underpinnings of oedipality are expunged from primary relationality. Fineman's reconstruction of relationality concerns the structuring of the family and the development patterns and behavioral expectations of its progeny.

In Fineman's proposed scheme, the logic of ascendance is removed from socio-sexual development, and heterosexuality is withdrawn entirely from a place of privilege. The removal of heteronormative definitions and descriptions of the family in Fineman's vision of primary relationality yields a configuration of the family whose successful existence is not predicated on its adult members' normative achievements of proper genders. Fineman theorizes independent and varied relations of care and dependence, unbinding them from the cultural matrix of gender achievement. Being a "mother" in Fineman's scheme may entail the establishment of a different model for the achievement of adulthood, though it is not proscriptive on this point. No concrete model is specified.

Repositioning Privacy

Though the above quotation suggests an overriding critique of the privatized family, Fineman is less interested in rendering familial privacy problematic than she is in outlining means to redistribute the benefits of privacy as secured by the privatization of the family. Fineman approaches the ideal of familial privacy from two positions. One argues against the individualistic enshrinement of privacy; the other diagnoses the state's differing receptions of "private" families against "public" families.

Fineman's dissatisfaction with the legal objective of privacy has largely to do with the individuating effects of the privacy objective. The individualizing legal goal of feminist jurisprudence as far as privacy is concerned aims to extract various rights for individuals from the dominion of the paternal family. The paternal family, in turn, is one major—if not the most significant—core of legal power in the field of intimate relations. In opposition to this theoretical inclination, Fineman seeks to idealize and protect a reification of collective privacy for her projected mother-child family, and not for "individuals."

Fineman's other main concern with the edifice of legal privacy has to do with the realm of family law. The nuclear family, as Fineman stresses repeatedly in The Neutered Mother, is a thoroughly interdependent entity. Benefiting from overlapping state-provided benefits in the form of tax advantages, inheritance laws and insurance provisions as well as other benefits, the private nuclear family clearly receives enormous assistance from the state and corporations alike. [19] "Public" families, by way of contrast, directly dependent on the state for support, encounter the state's invasive scrutiny and intrusive mediations. [20] The dramatic differences in reception of these two family "types" (the "private" nuclear bourgeois family against the "public" mother-headed poor family) provides the crucial evidence for Fineman that the benefits of privacy need to be realigned in the first place. Media constructions of the welfare queen and the poor black family are analogues of the state's construction of the "public" family. These media constructions are notable for their racist symbolic reductions. They provide another example of the vulnerability of "public" families, suggesting that existing intrusive governmental mediation is appropriately justified. In these "public" families, it must be emphasized, parenting is intelligible as an act. Here, parenting is not permitted to disappear into marriage; it is not allowed to become invisible. Queer social and sexual practices are also policed and punished over their heterosexual and married equivalents in decency statutes and sodomy laws. [21]

A new idealization of familial privacy amounts to a transfer of privacy from what Fineman calls the "natural-sexual" family to a mother-child family. Here, as we have seen, the key concept for Fineman is an explicit embrace of dependency: "The new family line, drawn around dependency, would mark the boundaries of the concept of family privacy." [22] The "mother-child" family is, in Fineman's reckoning, a more desirable place than the existing family for privacy to operate as a legally proscriptive concept. Such a transfer of the centrality of privacy as a legal principle undermines the integrity of a number of dominant masculinist characteristics of the natural family. For example, it offers direct challenge to the current appraisal of single mothers as inappropriate household heads. This challenge is probably Fineman's highest priority. [23]

For single mothers and their families, privacy is not secure. It is in no small part with an eye to the particular scrutiny under which single mothers are placed that Fineman seeks to retain the residue of "family" privacy for mother-child relations. Mother-child relations are clearly within the domain of intimate relations but outside of the bailiwick of sexuality and the erotic. By maintaining a familial form of privacy for the proposed mother-child relation, Fineman hopes to render motherhood "unsubjugated," with a necessary condition for the reversal of subjugation being the release of single motherhood from regularized interventions on the part of the state. Fineman's projected transformation of familial privacy into a mother-child framework also indirectly mitigates the over-association of sexual dissidents with queer (and thus, from a normative perspective, suspect) sexual practices. By rendering no one relation worthy of state protection, and by focusing on the caretaker/dependent dynamic over peer-like relations, the appraisal of queer sexual practices as deviant and as thereby providing a justification for the exclusion of sexual dissidents from consideration as legitimate parents is weakened.

Fineman phrases her argument in favor of the transfer of "privacy" from the "natural-sexual" to the "mother-child" family in regard to the legal protection accruing to private entities against state intervention and "the right to make demands upon the larger society for certain kinds of accommodation and support" (177). Privileges associated with privacy do not vaporize in Fineman's proposal. They relocate. The "certain kinds" of support Fineman touches on might involve, on a pragmatic level, tax benefits or reductions, and the funding of particular services from the state, like childcare provisions. While these demands are certainly made today by feminists, they do not tend to be made in the name of the "family." Fineman's scheme would reposition such claims from extra-familial feminism to the core of the familial, no doubt granting them a cultural legitimacy in the transfer.

Part of Fineman's opposition to the extant legal form of marriage is that it performs a neutering of practices of motherhood, forsaking motherhood's material histories for the construction of a gender-nonspecific parenthood in which mothers and fathers are legally equivalent. The dream of gender-nonspecific parenthood ignores the anecdotal and historical evidence that suggests that women as mothers take disproportionate care of children in relation to men as fathers. [24] A form of social dissonance like this one is part of what Fineman terms a "linguistic-structural" shift toward egalitarianism as cultural ideal. [25] In this idealization of gender-nonspecificity, the "old common-law hulk has been refashioned into the 'egalitarian family.'" [26] The most pronounced internal contradictions gathering around the egalitarian ideal stem from the undue "burdens and costs associated with family operations," which accrue disproportionately to women. [27] The cultural acceptance of the terms of what Barbara Easton might call "post-patriarchal" gender arrangements—one axiomatic outgrowth of a feminist focus on formal legal equality—has led to a realignment of the interpretive field. The desired end of feminist cultural politics becomes the form of feminist cultural politics, superimposing in turn cultural ideal on top of cultural reality.

Katharine Bartlett's evaluation of the partial legal embeddedness of "parenthood" and "parental exclusivity" in the tradition of natural law adds another dimension to Fineman's critique. Parental rights in a natural law tradition assert parental rights to raise children irrespective of parents' actions:

Though natural law is often politically opposed to gender- neutral egalitarianism, in the application of law they inevitably mesh. Natural law sanctifies the nuclear family as the "private" family over other relational arrangements, and effectively renders children agencyless in the process. "Children" are not significant subjects in the natural law conception of the family, and natural law is not merely an historical detail. Bartlett argues that a natural law conception of the family has strongly influenced the history of family law to the point that it "has made the law of parenthood decidedly unresponsive to changes in social behaviors and norms." [29] Bartlett's account helps to explain the pronounced hesitation in American law to move toward a more culturally attuned jurisprudence of "family" law. It traces another means through which the nuclear family achieves its privatized legal dominance over other relational arrangements, quasi-familial and otherwise. Though in necessary theoretical contest with Fineman in The Neutered Mother over the directions and forms that alternative family constructions might take legally, Bartlett contributes to a strong critique of the nuclear family, sharing ground on this subject with Fineman.

Some Critiques

Fineman's powerfully original theorizations beg a number of questions about historical-cultural constructions of women, namely the over-association of women with mothering, and the projection of gender roles into behavioral expectations. Fineman glosses over the politically charged distance between biology and social roles in her crafting of a metaphorical reliance on the figure of "Mother." This might be the most immediately objectionable feature of the broader argument in The Neutered Mother. Its obvious danger lies in its seemingly effortless cultural construction of women as natural mothers, a construction identical to sociobiological arguments about the place of women (and, in an opposed sense, about the place of men) in culture.

The specter of sociobiological interpretations aside, the figure of "Mother" itself as political cornerstone is clearly problematic for other reasons. Fineman acknowledges that there are risks inherent in any rhetorical reliance on the figure of the mother. [30] For potential, and obviously unintended, unanimity between Fineman and anti-feminist cultural ends, one need look no further than Linda Kintz's recent examination of the rhetorical and symbolic strategies of contemporary right-wing American politics. Kintz recognizes a "very particular form of familiarity" as the key rhetorical adhesive linking a number of powerful symbolic domains: "mother," "family," "property," "nation," and "God." [31] Kintz interprets "the belief that the fundamental definition of a woman is her identity as a nurturant mother" [32] as the singularly most crucial foundational element of this resonating "familiarity." Kintz examines a number of right-wing cultural publications authored by women writing against feminism in which "motherhood" is not merely transposed against the energies and interests of feminism, but further gets cast as the primary and affirmative task for women. Clearly this cultural link is a strong one, and whether redefinition or attack is a more appropriate strategy for feminism is obviously a matter for debate.

In insisting upon the need to recast the gender-neutral "parenting" as "mothering," and in reiterating the particular relationship that (female) mothers typically have with children in comparison to those relationships forged by fathers, what room exists for addressing the conservative-normative assumptions regarding women's essential role vis-à-vis childbearing and mothering? Does Fineman not delimit the possibility for such critique in her exalting inscriptions of motherhood? An institutionalization of the mother-child relation might legally reify quite conservative expectations regarding women's cultural roles. These concerns are taken seriously by Fineman, who stresses the importance of a feminist "redefinition" of motherhood. Nonetheless, a future state-institutionalized feminist redefinition of motherhood in Fineman's mold will probably have difficulty resisting a strong rhetorical association of women with motherhood.

The crafting of a distance between women as a class and reproduction as an activity has been a significant goal for feminist movements. Fineman's model reverses course, embracing this symbolic unity, conceivably triggering an unfortunate over-association of women's social roles with motherhood. How might such an over-association texture public perceptions of women who do not choose to procreate? How might it increase the social pressure on women to procreate? Will men choose to become "mothers" in a culture structured in part by a fear and rejection of the feminine on the part of so many men? [33] In what numbers and with what frequency would men choose to legally become "mothers"? Might a new relationality centered on the mother-child model establish or sanction normative expectations of its own, and what forms might these normative expectations take under the aegis of the mother-child model? These are the most immediate questions that come to mind in considering the ramifications of Fineman's suggestive mother-child model.

A further angle of criticism emerges in a consideration of the dimensions of relationality between those inside relationships organized along the lines of Fineman's mother-child model. Fineman stresses carefully that the mother-child relationship she advocates is at its base one in which a provider cares for a dependent. Given increasing social atomization and the growing cultural expectations for companionate relationships to favor peerlike, shared status over differentiated roles, how might a caretaker/dependent dyad become normative? [34] This question means to ask how social atomization and a "plastic" democratization of relations (as in Anthony Giddens) would culturally accommodate Fineman's model given Fineman's model's projections against some of the more forceful cultural tendencies at work today. The point here is not to apply undue statist scrutiny to a utopian proposal, although in adequately considering Fineman's model—a model that presupposes the desirability of its eventual implementation—the question of its ability to mesh with contemporary cultural politics emerges as a matter for critical consideration.

Fineman, significantly, views "law" as just one prism through which society is regulated. The family, in Fineman's view, "is given social content and definition by systems of belief or knowledge more significant than, and with coercive potential far exceeding, that of law." [35] From this perspective, the "law" as a complex of prohibitions and benefits is not a causal force in cultural life but rather a reactive entity. By Fineman's own estimation, then, the realigned recognition that she advocates for marriage and the family, though honed in The Neutered Mother in the pragmatic context of existing family law, will encounter difficulties and challenges beyond the law.

Clarifying "Mother-Child" Relationality: Ethics against Companionism

These critiques notwithstanding, Fineman's model launches a significant assault on dominant characteristics of modern companionate marriage. Fineman's model relocates relationality away from the exclusive domain of romantic love. By positioning its primary relation as neither necessarily dyadic nor exclusive, it dispenses with the modern position of marriage as an emblem of psychological maturity and a sign of heterosexual gender attainment while collectivizing relationality as potentially compound and multiple. Though the effects of Fineman's scheme might, as my criticisms suggest, have the unintended effect of re-eulogizing motherhood as an essential experience for women, it certainly projects differing routes of affiliation and recognition by the state and culture.

Companionism, another primary element of modern marriage, is dependent on the idealization of shared peerlike status between two adults. It is typically encased in a narrative of romance and equality. Fineman's model opposes this dimension of modern marriage, proposing the centering of a nonpeerlike relation. I discuss possible problems with this model in the preceding section. Aside from that critique, Fineman's model's opposition to the companionism of primary relationality is interesting for its strike against spectacularized romance.

Both the couple model and companionism, then, come under attack via the articulation of Fineman's model. But oppositionality is not the only way to describe Fineman's model. "Mother-child" relationality is designed by Fineman to function, optimally, as no less privatized and no less protected by the state as contemporary marriage. Fineman declines to focus on the public/private divide as a problematic unto itself. She prefers to direct her critical attention to the legal ramifications of this divide instead of crafting a generalized critique of it. Ironically, Fineman's critique of privacy is so thorough that if anything it weakens—if only ideologically—her continued investment in and appeals to familial privacy. To emphasize: Fineman is not interested in imploding the "natural" family. Rather, her interest is in utilizing the family's symbolic access to privacy to radically rearrange it.

Fineman's legal pragmatism fleshes out a prospective reworking of the zone of the private rather than dismissing it. Fineman's "mother-child" relationality turns on practices of caretaking and dependence. It positions peerlike adult social and sexual relations outside of the functions and machinations of the state, as strictly interpersonal matters. Fineman's model thus coheres around a relation of entrustment that does not equalize its parts but is rather based on difference and never romanticized as peerlike or dissoluble into narratives of romance. [36] It is devoid of romantic or sexual love.

Another distinctive piece of Fineman's version of relationality emerges in the conscious and ethical manner in which she suggests relationality be accepted and engaged. In this guise, the act of caretaking known as mothering "should be thought of as an ethical practice, as embodying an ideal of social 'goodness.'" [37] The "family," in Fineman's "ethical" proposition, does not take a certain, pre-established shape. Policy and public sentiment in Fineman's scheme would need to recognize "the family" as "an explicitly self-conscious, constantly reconsidered configuration that reflects both existing reality and collective responsibility." [38] Fineman opposes bonds of relationality formulated as natural, emphasizing favorably the role of individual and collective agency to assume the caretaking burdens of primary relationality.

Broader Considerations

This short investigation has traced some dimensions of Fineman's very unusual approach to the project of a feminist reconstruction of the family. Fineman offers a model for parenting that declines to value egalitarianism over materialism, a model that works through pragmatic concerns of intimate life while remaining faithful to an idea of sexual difference. The value of Fineman's model to feminist and queer theories of the family and cultural reproduction is broad, and remains largely unexplored. For feminist and queer engagements—theoretical, political, and hybrid—Fineman offers a model of social roles that does not cleave to heterosexuality's ongoing comprehension of itself as intrinsic to the reproduction of culture. Fineman offers a model that strikingly refuses to respect companionate life as an exalted, idealized form of relationality over other kinds of relationships. Fineman's model also contests what is visible as mothering, suggesting that mothering be placed into a cultural position that requires that it be recognized by the form and force of its labor. [39] Finally, Fineman is not very interested in deviance in her consideration of the "family," either in its androcentric exercise or her feminist reconstructions. Her interest is in reducing the sting of deviance as an assignment and also as a means of forbidding access to the key sphere of privacy.

In this negative form—as the guarded means of access to privacy—deviance is no neutral sheathing of differentiation, no benignly treated variation, but rather the power to organize culture. [40] This is, after all, the political substance of debates over family structure. Fineman's model is so threatening because it proposes a leapfrogging over current, right-leaning debates that reiterate the centrality of the father, the inadequacy of single mother-headed households and the heterosexual encasement of marriage. Fineman's model denaturalizes the long-disintegrating fiction that continues, as President Bush's February 2002 welfare proposal shows, to justify the continued preeminence of normative marriage and family structure. [41] For its original, far-reaching critiques, Fineman's model deserves far wider dissemination in both feminist and queer political/theoretical contexts.

University of Michigan

Ann Arbor, Michigan

1. I appreciate Holly Dugan's critical editorial guidance. Thanks also to Nick Syrett for introducing me to Martha Fineman's oeuvre.

2. Martha Albertson Fineman, The Neutered Mother, the Sexual Family and other Twentieth Century Tragedies, (New York: Routledge, 1995).

3. Between 1980 and 1999, the percentage of Americans never married increased from 20.3% to 23.9% and the percentage of married Americans fell from 65.5% to 59.5%. United States Census Bureau, Statistical Abstract of the United States: Section 1. Population (Washington, D.C.: United States Census Bureau, 2000): Table 53. In 1980, 20% of children under 18 were being raised in single-parent families; in 1998 the comparable figure was 27%; during this same period, the percentage of children under 18 being raised in a two-parent family fell from 77% to 68%. Ibid., Table 69. These statistics confirm that two-parent married couples are rapidly becoming less and less broadly descriptive of any average. See also Piet van den Akker, Loek Halman and Ruud de Moor, "Primary Relations in Western Societies," The Individualizing Society: Value Change in Europe and North America, eds. Peter Ester, Loek Halman and Ruud de Moor (Tilburg: Tilburg UP, 1994): 97-127, and Anthony Giddens, The Transformation of Intimacy: Sexuality, Love & Eroticism in Modern Societies (Stanford: Stanford UP, 1992).

4. Kate Millett, Sexual Politics (New York: Doubleday, 1969): 3.

5. Barbara Easton, "Feminism and the Contemporary Family." Socialist Review 8.3 (1978): 11-36, 22.

6. Ibid., 23 (italics added).

7. This is not to suggest that feminist research on kinship or the family has not been undertaken since the 1970s. See Stacey Rapp and Yanagisako for readings of kinship and the family.

8. Chrys Ingraham, "The Heterosexual Imaginary: Feminist Sociology and Theories of Gender," in Queer Theory/Sociology, ed. Steven Seidman (Cambridge: Blackwell, 1996): 168-93, 180.

9. Leslie Friedman Goldstein, "Can This Marriage Be Saved? Feminist Public Policy and Feminist Jurisprudence," in Feminist Jurisprudence: The Difference Debate, ed. Leslie Friedman Goldstein (Lanham: Rowman and Littlefield, 1992): 11-40, 22. Fineman notes that this model has come to be questioned in feminist legal theory in the last twenty years. Fineman, The Neutered Mother, 40. See Leslie Friedman Goldstein's "Can This Marriage Be Saved?" for a discussion of "disagreement among feminist jurists across a wide range of policy questions and underlying theoretical issues. " Goldstein observes that the 1970s feminist agenda in favor of formal legal equality had been "enormously successful" and that its successes in part demonstrated the limits of formal equality as a legal goal for feminism. Ibid. Interestingly, the theoretical confrontation between "equality" and "sexual difference" is structured by different dynamics in literary and cultural studies, where the essentialism associated with sexual difference is strenuously avoided while the effects of a discourse of equality or equivalence are also viewed with skepticism. In the context of American feminist literary and cultural studies, principles of sexual difference are not quite as anathema. One American feminist legal/cultural theorist who takes the symbolic bailiwick of sexual difference very seriously is Drucilla Cornell, whose The Imaginary Domain provides a kind of companion-text to The Neutered Mother. See Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (New York: Routledge, 1995). The Imaginary Domain focuses on feminist-appropriate theoretical contextualizations of pornography, abortion rights and violence against women, noting how each of these subjects forms a sex/gender-specific domain of cultural life. Cornell's handling of these subjects provides a counter-gauge to the focus on "motherhood" in Fineman's book.

10. Fineman, Neutered Mother, 41.

11. Fineman's selective deployment of "traditional" aspects of motherhood is tempered, no doubt in acknowledgment of the risk that such framing involves. "Traditional" aspects of motherhood come under scrutiny by Fineman. Further, Fineman is not keen on "biological" reduction: "Fatherhood, like motherhood, should be more than a biological connection that carries with it all sorts of abstract legal rights." Fineman, Neutered Mother, 206.

12. Fineman's choice of the term "horizontal" to characterize the "natural-sexual" family is interesting for its direct contrast with other configurations of this term in relation to social and sexual spheres. In Fineman, "horizontally organized intimacy is a crucial component of contemporary patriarchal ideology in that it ensures that men are perceived as central to the family." Fineman, Neutered Mother, 146. A vertical familial organization, in Fineman's analysis, is better suited to the "mother-child" relationality she develops. In the work of gay theorist Guy Hocquenghem, the bourgeois Oedipal family is organized "vertically" while the friendship-centered socialities of gay men are understood as "horizontal" in organization. Guy Hocquenghem, Homosexual Desire, trans. Daniella Dangoor (London: Allison & Busby, 1978). Anthropologist Greg Urban sketches two formations for the "social transmission or circulation" of culture: "vertical (across generations)" and "lateral (within a generation across boundaries)." Greg Urban, "Culture's Public Face," in Public Culture 5, no. 2 (1993): 213-38, 228. Interestingly, in Urban, a "vertical" organization of cultural transmission designates local manifestations of culture, while a "lateral" organization of cultural transmission refers to culture as a global project. Ibid., 216.

13. Risman and Danette Johnson-Sumerford, for instance, argue that the family is a "gender factory" where "gender is still seen even ideologically as a reasonable and legitimate basis for the distribution of rights, power, privilege, and responsibilities." Barbara J. Risman and Danette Johnson-Sumerford, "Doing It Fairly: A Study of Postgender Marriages," in Journal of Marriage and the Family 60, no.1 (1998): 23-40, 23. Risman and Johnson-Sumerford note that "the power of gender in shaping the household division of labor is apparent in ... typical families." Ibid., 24. This arc of Fineman's framework (namely, a turn toward the symbolic) shares philosophical bearings with Rosi Braidotti's synthesis of sexual difference feminism. See Rosi Braidotti, Patterns of Dissonance: A Study of Women in Contemporary Philosophy, trans. Elizabeth Guild (New York: Routledge, 1991): 210-18 and "Feminism by Any Other Name" in differences 6, no.2 (1994): 27-61, 39-43, 46-49.

14. I am not claiming here that actual physical sex does not transpire between married couples. Clearly, it does. But in any significant analysis of how sex achieves intelligibility as sex, that is, how sex becomes coherently "sexual" as a series of acts that cannot be assimilated to reproduction, sex is extramarital, premarital and nonmarital. This helps to explain the cultural overdetermination of homosexuality as graphically sexual and even obscene. See Lauren Berlant and Michael Warner, "Sex in Public," in Critical Inquiry 24 (1998): 547-66, 552-57. Consider also the history of the marital rape exception. Until 1976, a wife could not charge a husband with rape in a single U.S. state. A husband's sexual right to his wife—a vestige of coverture—was seen under the law as precluding the possibility of forced nonconsensual sexual contact. For a discussion of the history of marital rape exemption, see Rebecca M. Ryan, "The Sex Right: A Legal History of the Marital Rape Exemption," in Law and Social Inquiry 20, no.4 (1995): 941-99. On the marital rape exemption in the context of coverture, see Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard UP, 2000): 210-12.

15. Fineman, Neutered Mother, 234.

16. Ibid., 235.

17. Ibid.

18. Martha Albertson Fineman, "Intimacy Outside of the Natural Family: The Limits of Privacy," Connecticut Law Review 23, no. 4 (1991): 955-72, 957.

19. Fineman, Neutered Mother, 226-7.

20. Fineman stresses the mid-1990s rise in "welfare reform" measures, which directly targeted poor single mothers as irresponsible, as severely damaging the viability of single mother-headed households (213-24).

21. For an overview of sodomy laws and the challenges to them in U.S. state courts, see Jeremy Quittner, "Are You Breaking the Law?" in The Advocate (August 20, 2002): 52-53. Currently, 15 U.S. states have sodomy laws on the books, and four of these states apply sodomy laws to homosexuality exclusively.

22. Fineman, Neutered Mother, 231.

23. On the effects of state regulation and management of "welfare" on mother-child relations, see Fineman, Neutered Mother, 110-18 and 213-17. On the exclusion of women as mothers from the domain of the private family, see Ibid., 75-89.

24. See, for instance, Irwin Garfinkel, Jennifer L. Hochschild and Sara S. McLanahan, eds. Social Policies for Children (Washington, D.C.: Brookings Institute, 1996).

25. Fineman, Neutered Mother, 157-8.

26. Ibid., 158.

27. Ibid., 164.

28. Katharine T. Bartlett, "Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives when the Premise of the Nuclear Family Has Failed," in Virginia Law Review 70, no. 5 (1984): 879-963, 889.

29. Ibid., 890. Bartlett goes on to specify the antipathy within natural law to changes in social patterns. "This unresponsiveness works to the detriment of children who develop bonds outside the nuclear unit; these children are powerless to change the social patterns of which they are a part, and they cannot respond meaningfully to legal or social sanctions intended to promote the nuclear family." Ibid. Natural law is one component of family law in Bartlett's analysis. Legal instrumentalism, which prioritizes certain pre-determined goals within the field of family law, is the other. See Ibid., 890-93.

30. Fineman, Neutered Mother, 234. Fineman writes: "I realize that affirmatively introducing Mother into a feminist debate will be considered by many to be too dangerous, but I believe that it is essential that we reclaim this term. Motherhood has unrealized power—the power to challenge the hold of sexuality on our thinking about intimacy; the power to redefine our concept of the family, which may be why men have tried for so long to control its meaning" (234). In some fairly recent work on the rhetorical implications of the figure of mother or motherhood, different assessments of the symbolic dimensions of the "mother" are made. In an essay by Julia Creet, for example, an Oedipal relation is sketched between the "mother" of lesbian-feminism and the defiant s/m "daughter of the movement" in a psychodynamic analysis. In Creet's essay, the figure of the mother is rejected symbolically, negated via political attachments and idioms. On another point, Fineman's quotation over-associates reproduction with sex, essentially casting motherhood as essential to sex. This reliance is critiqued elsewhere in this article.

31. Linda Kintz, Between Jesus and the Market: The Emotions That Matter in Right-Wing America (Durham: Duke UP, 1997).

32. Ibid., 17.

33. I certainly do not mean for this sentence to provide an apologia for misogyny. I am suggesting one of a number of ways that Fineman's model will have difficulties in application.

34. See Piet van den Akker et.al's "Primary Relations in Western Societies" for a discussion of the effects of individualization on attitudes toward marriage in highly industrialized societies. See also Anthony Giddens' The Transformation of Intimacy for a lengthy discussion of pleasure, intimacy and "plastic" relationships in postmodernity.

35. Fineman, Neutered Mother, 160.

36. Here Fineman's model bears similarity to the Italian feminist idiom of entrustment between women. Entrustment is a dialogical relation between women, prioritizing the sustenance of social relations between women in the face of disparities and differences between women in general and between the two women entrusting one another in particular. For an elaboration of the notion of entrustment in the presence of disparity, see the Milan Women's Bookstore Collective, Sexual Difference: A Theory of Social-Symbolic Practice, trans. Patricia Cicogna and Teresa de Lauretis (Bloomington: Indiana UP, 1990), 121-31. The commonalities between the Milan Women's Bookstore Collective and Fineman are productive outside of this surface comparison: the Collective cite the significance of the "relation of female entrustment" in the context of a "symbolic debt toward the mother." Ibid., 130. Comparing the model of feminist "entrustment" to existing relationship models, they write: "Among the productive models of disparity, the one between adult and child is the only one which can be cited as an example in our culture, but others exist or could exist. There are forms of disparity, in beauty or health, which often cannot be eliminated; it is senseless to call them unjust even if they unfortunately provide the occasion for some of the worst injustices—think of the condition of the sick or of the old who do not have the power of money." Ibid., 132. In this passage, a caretaking aspect of the relation of entrustment emerges, suggesting even greater parallel with Fineman's model.

37. Fineman, Neutered Mother, 235.

38. Ibid., 236.

39. In this manner, as Holly Dugan pointed out to me in her criticism of a draft of this article, Fineman's analysis parallels my arguments about queer theory and "sex" (namely, that "sex" is intelligible as "sex" only outside of marriage). In a roughly parallel fashion, "motherhood" is only recognized as "motherhood" outside of marriage, when it is enacted by "single" mothers and cannot be assimilated to acts of marriage.

40. Trinh T. Minh-ha offers an alternate, counterdiscursive reading of the value of deviance, cast as otherness: "Otherness becomes empowerment, critical difference when it is not given but recreated." Trinh T. Minh-ha, "Not You/Like You: Post-Colonial Women and the Interlocking Questions of Identity and Difference," in Inscriptions 3/4 (1988): 71-77, 75. For an articulation of the positive value of marginality to oppositional cultural politics, see bell hooks' "Choosing the Margin as a Space of Radical Openness" in Yearning: Race, Gender, and Cultural Politics (Boston: South End P, 1990): 145-53.

41. Bush's policy proposal would provide federal funds to programs that offer counseling to married couples and those couples contemplating marriage. It would compel states to include "'explicit descriptions of their family-formation and healthy-marriage efforts'" in the welfare plans they submit to the federal government. It would also institute a rhetorical shift, rewording the goal of welfare as the assistance and encouragement of "two-parent married" families over "two-parent" families. Bush's proposal would conceivably support the provision of increased cash benefits to married welfare recipients—a current practice in at least one state—and funnel federal money to faith-based organizations engaged in marriage encouragement/education programs. One significant net effect of this proposal is the further solidification of the normative cultural function of marriage. In the adhesion of marriage to the receipt of welfare, the axiomatic implication of Bush's proposal is that "single" motherhood should be discouraged. This recent policy development is instructive in light of this investigation of Fineman's model because it illustrates the degree to which the assumption of the positive value of the presence of the father is made in advance and in a generalized manner. Bush's proposal shows how marriage embodies a cluster of ideas about heterosexuality, companionism, childhood and gender roles and is understood as the self-evidently most appropriate behavioral form. Certain, graphically intelligible subjects ("man," "woman" and "child") negate the presence of other, in some cases unintelligible, subjects ("queer," "feminist" "single parent" and "unpartnered" among others.) In so doing, this proposal reduces the range of ways that governmental services might respond to the needs of its citizens to one proposed solution: the intensified prioritization of marriage. Single mothers and queer parents are completely excluded from Bush's version of normative child-rearing practices.