SEPTEMBER 26, 2015
PERHAPS BY NOW you’ve heard the news: #LoveWon. The gift of marriage has been given to the gays, and in return, we allowed everyone to turn their Facebook profiles rainbow for an afternoon. (An afternoon, y’all. ONE.)
Snark aside, this is an incredible milestone, but I hope it is mile one of a much longer trip. Because marriage, it turns out, is not in fact, synonymous with love. Marriage can be many things: a support structure or a cage, a lifelong dream, an efficient machine for raising children, or a confusing morass of tax breaks, immigration allowances, and inheritance laws. It is not, however, that intangible welling that slams the rest of the world out to the margins of your consciousness. But I guess
#TheHeteronormativeStateWon(AndLoveBenefittedSomeToo)doesn’t make as good a hashtag.
But if same-sex marriage is the first step on this journey, where are we headed, and how do we go the rest of the way? Two books published this summer — Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, by Martha Ertman, and How We Live Now: Redefining Home and Family in the 21st Century, by Bella DePaulo — come at these questions from cockeyed angles, addressing love and life through law and contracts, real estate and urban planning. Though very different in style, tone, and subject, both seek to expand the landscape of accepted family–life configurations available to us.
All the peoples of the world can be divided into two grammatical camps: the prescriptivists and the descriptivists. (Well, and the vast majority who just don’t give a fuck, but they’re immaterial to this metaphor.)
For prescriptivists, the elements of style are the standard to which our language is held, a set of stone tablets filled with inviolable rules handed down to us by Strunk & White (or whoever your personal linguistic prophets may be). For descriptivists, grammar is a snapshot of a beast in motion, a catalog of observations about the ways in which we use our language. Prescriptivism prescribes what we should do; descriptivism describes what we do.
In Love’s Promises, legal scholar Martha Ertman isolates a similar tension that lies at the heart of family law: is it meant to promote a certain kind of ideal family structure, or does it exist as a field guide to families as they function in the wild? Ertman sees the last few hundred years of evolution in family law as moving from prescriptivism to descriptivism, or as she puts it:
Instead of talking about “the” family as one kind of relationship honored above all others by Nature or God — marriage, heterosexuality, genetic kinship — law and society can update that black-and-white two-dimensionality to acknowledge the colorful, 3-D variety of life as it’s actually lived.
Love’s Promises mingles short personal essay snippets with detailed examinations of case law. Ertman was compelled to write the book because of her own unique family structure: after breaking up with a long-term partner, Ertman decided to have a child with a friend named Viktor, another attorney. In true lawyerly fashion, they drew up a “four-page contract that covers finances, the name of the baby (Walter), and even emotional stuff like our promise to support each other’s romantic relationships.” As both she and Viktor proceed to enter into exactly those kinds of romantic relationships, this initial contract is altered and expanded to allow for new roles and obligations. She estimates that it makes her “around 70 percent parent and Victor 30 percent.” She refers to their situation, and the other unusual family structures she mentions throughout the book, as “Plan B families.”
This may sound unromantic to some, or worse, anti-romantic, a clinical approach to family making that smacks of Aldous Huxley’s dystopian reproductive bureaucracy in Brave New World. Indeed, there is a coolness to Ertman’s prose, even in the memoir sections, though that distance was perhaps necessary for her to be able to write the book at all. In Love’s Promises, Ertman takes pains to expose the contractual nature of all familial relationships, and especially of marriage. She demonstrates that her own approach to family is no more or less contractual than any other; it simply lacks the centuries of ritual, pomp, and illusion with which we have cloaked traditional marriage. For instance, she explains at one point, the vows to have and to hold might sound romantic, but “they reference property rights, as in both owning (‘having’) and possessing (‘holding’) real estate.”
Ertman’s aim is not to strip marriage down to some brutalist skeleton that shows its inherently cold core. Rather, she believes it is an underrecognized truth that marriage’s legal essence is what makes it work: “Many people believe in love,” she writes, “[b]ut too few worship at the altar of contracts.” Contracts (and their less enforceable cousins, deals) are the bedrock of all familial relationships. Words like “dependence,” “support,” and “care” mean something because at their heart is a contract that we understand will be upheld when we need it. By going through years of cases to demystify the ways in which traditional families are already governed and supported by contract law, Ertman hopes to empower readers to craft family contracts that work for them, rather than trying to force themselves into a prescriptivist legal idea of what their families should look like.
Underlying this shift in family law is nothing less important than the concept of universal human rights. Ertman quotes legal scholar Sir Henry Maine in saying “the movement of the progressive societies has hitherto been a movement from Status to Contract.” Status, in this sense, means either a protected legal class that does not need to enter into a contract, or a subjugated legal class that is not allowed to enter into a contract. For instance, the status “husband” once granted a man absolute control over his wife’s finances, regardless of either of their wishes in the matter, while the status “slave” once prevented black people from entering into legally enforceable contracts at all. The Supreme Court marriage decision in June 2015 moved family law another step in this direction, by offering the possibility of contractual marriage to same-sex couples. Over the course of the book, Ertman walks through dozens of similar cases, showing the ways in which they either unfairly privilege certain kinds of family status or justly expand the reach of family contracts.
Ertman believes that giving more people more say about the terms of the contracts they enter into,
benefits both individuals and the larger society. Individuals get the freedom to choose and tailor their families to match their situation, while communities and society benefit from more people coming to work, school, and the supermarket with the vital social, financial, and emotional support that comes with being an “us.”
What we do with this freedom to choose is, in part, the focus of Bella DePaulo’s How We Live Now. DePaulo’s name may be familiar to those interested in “family structure” (more on that term in a moment), as she’s written extensively on the lives of single adults (including her previous book, Singled Out), and on “innovative ways of living” (as she terms it on her website).
Early on in How We Live Now, DePaulo introduces readers to a useful term for the subject matter she covers — “lifespace literature” — which she defines as writing about “the lives we envision and then build around our places, our spaces, and our people.” This opens up the subject of her examination to ways of living that are not family-based. In fact, one of her perennial themes is that family isn’t necessary — caring is. Her approach to family life seems much like the faux-pagan rede all my Wiccan friends quoted in the 1990s: An it harm none, do what ye will. Her book is an exuberant exploration of what is possible, divided into chapters based around different kinds of non–nuclear-family lifespaces: intergenerational families, friend-based groups, intentional communities, married couples who live apart, etc.
DePaulo comes from a social science and journalism background, and her book is like a series of short profiles on lifespace pioneers, studded with fascinating facts and statistics like “[a] twenty-year-old in 2000 was more likely to have a living grandmother than a twenty-year-old in 1900 was to have a living mother.” Where Ertman focuses on our legal past to help develop a framework for the future, DePaulo is firmly focused on the here and now. Her aim is to help us see the ways in which we are already living the future that Ertman is trying to enshrine in the law. Her engaging, positive tone makes you root for her subjects. While lacking the drama or heartbreak necessary to bring about tears, her book is infused with a warmth that colors each lifespace she examines like an Instagram filter, bringing out its best look.
It’s telling that both DePaulo and Ertman found it necessary to come up with new terms in order to explore these topics. We rarely have agreed upon words for ideas that have yet to be fully embraced by the mainstream (cf. the last few decades of wrangling over what to officially call gay people). The very liminality of these families is evidenced by the fact that no generally accepted term exists to describe them (though terms such as blended families, rainbow families, chosen families, and alternative families have all been nominated as contenders). “Plan B families” and “lifespace literature” may sound like completely different topics, but they’re both ways of trying to denaturalize the links between heterosexuality, the nuclear family, childrearing, and adulthood. They mean to hack away at our notions of what should be in order to expose what is. They are an attempt to let go of prescriptions in order to have more accurate descriptions.
In essence, both DePaulo and Ertman are engaged in a kind of mapping project. Maps both figuratively chart out the paths we take and reify their existence in the real world. Maps transform trails, which are informal and unmarked, into roads, which are labeled, named, and (most importantly) visible and available for others to walk down. Taken together, these books are a primer ready-made for a society that is heavily invested in personal freedom and embracing one’s own life choices.
As a gay man who has lived with two partners for more than five years, and who recently purchased a shared home with a group of six friends, Ertman and DePaulo’s books strongly resonated with me. However, after finishing both, I came to a realization: for all that I identify with their mission to expand the definition of family in America, I didn’t see myself in their pages. Love’s Promises doesn’t touch on polygamy or polyamory, and while How We Live Now mentions a polyamorous relationship, it is heterosexual, over by the time the book begins, and limited. (One woman with two men, who are not themselves sexually or romantically connected.)
In fact, the longer I considered these books, the more I realized just how patchy our family map still is. There’s still so much territory to explore. What about polygamy? While it’s generally treated like a joke in ankle-length gingham, it’s no more or less valid a family structure than any other. And thanks to Brown v. Buhman, a 2011 District Court case from Utah that struck down the state ban on “multiple cohabitation,” the legal landscape for polygamists has recently become just slightly less terrible. I may find common cause with few things of interest to fundamental Mormon sects, but on this point, we see eye to eye.
And what about the concept of third-parent adoption, which is still so radical it has no case law behind it? If a family can have more than two adults, why can’t a child have more than two parents?
Or how about the even more radical idea of separating government benefits from romantic relationships entirely, as it was at one point contemplated that the PACS system in France would do? If care — not a certain kind of ideal family — is what benefits the individual and their society, why shouldn’t our government assist three siblings who live together and support one another (for instance)?
One could argue that none of the protections above are necessary for loving relationships to flourish, but they’ve certainly helped the nuclear family to persist and thrive for centuries. (In this regard, it’s telling that we said #LoveWon when same-sex couples gained the legal benefits of heterosexuals.) To make Ertman and DePaulo’s expanded life options truly available to everyone, they must be similarly encouraged and supported by government; otherwise, they will be available only to those who already have the most options, the privileged minority whose lives do not hinge on gaining immigration status, or on tax breaks to help them afford to raise their children, or on hospital visitation rights for a sick partner.
It’s my hope, therefore, that Love’s Promises and How We Live Now will be followed by more books and studies, which will explore and validate still more ways for us to build rewarding lives together (or alone). In a few years, it may be rare to hear someone say the terms “lifespace literature” or “Plan B families,” but I suspect the ideas behind both of these books will have gained much greater traction than their individual phrases. In mapping new terrain, Ertman and DePaulo have exposed vistas that reveal we still have a long way to go.