Transgressive Caregiving
Laura T. Kessler

[Note: This essay is part of a book project exploring the positive, political, and progressive potential of nontraditional family care practices and their implications for law. It represents the theoretical core of the book, and a highly condensed version of what will be Parts I & II. At the workshop, I will likely share a draft chapter from Part III, which aims to apply the theoretical groundwork set out here to a set of concrete contemporary debates about families and family care work. An abstract of the book precedes the essay. Thank you for taking the time to read and comment on my work—LTK.]

Abstract

	Can unpaid family caregiving be a form of political resistance or expression? I argue that it can, especially when done by people ordinarily denied the privilege of family privacy by the state. Unlike feminists from other disciplines, feminist and queer theorists within law have largely overlooked this aspect of caregiving, regarding unpaid family labor as a source of gender-based oppression or as an undervalued public good. Consequently, prominent feminist and queer theorists within law have set their sights on employment or sexual freedom as more promising sources of emancipation for women. 
	This book examines a less well-explored conception of family caregiving within law, revealing the way that family caregiving can be a liberating practice for caregivers. Specifically, sex, reproduction, parenting, and housework can constitute affirmative political practices of resistance to a host of discriminatory institutions and ideologies, including the family, workplace, and state, as well as patriarchy, racism, and homophobia.  I label such political work “transgressive caregiving” and locate it most centrally—although not exclusively—in the care work of ethnic and racial minorities, gays and lesbians, and heterosexual men, whose family caregiving practices are the focus of the book.
	The first chapter, “Is There Agency in Dependency?,” introduces the major themes in the book. Chapter two summarizes conventional feminist and queer legal theory positions on family caregiving. These two chapters constitute Part I.
	Part II investigates the family caregiving work of African-American, gay and lesbian, and heterosexual male caregivers. Chapter two argues that caregiving work within black families and communities is imbued with significant positive political meaning that derives from blacks’ historical experience of discrimination with regard to family life. It supports this assertion through an analysis of materials documenting black women’s activism against the sexual economy of slavery, the eugenics movement, and contemporary welfare policies aimed at influencing black women’s reproductive decisions; with social science research on the positive meaning of motherhood for black women; and through a discussion of the contribution of “othermothering” by extended kin in black communities to black survival and power. 
	Chapter three demonstrates how gay men and lesbians have long suffered state-sponsored discrimination with regard to their reproduction, sexuality, and family life. This is achieved through an analysis of statutes and cases denying gays and lesbians sexual privacy, marriage, adoption, and custody rights. The chapter shows how, within the context of this history of discrimination, family caregiving may constitute a positive, political practice of resistance. This chapter also reviews anthropological research on the value of “families of choice” to lesbians and gay men, which also often consist of extended social kinship networks. 
	Chapter four investigates the devaluation of heterosexual men’s family caregiving work in the law, focusing in particular on hostility toward caregiving men in the employment law and family law contexts. This is achieved through an analysis of reported employment discrimination and divorce cases demonstrating the persistence of the male-breadwinner ideal. This chapter also surveys sociological and historical materials on the meaning of masculinity in the modern era and its inconsistency with caregiving labor.
	Part III applies the core theoretical insight of the book in the context of five contemporary debates about the legal regulation of families and family care work:  same-sex marriage, “de facto” or “psychological” parenthood, the right not to be a parent, work/family conflict, and welfare reform.  In each of these contexts, I demonstrate how reframing family care work as a practice with political significance may justify the fundamental reformation of institutions such as the family, workplace, and social welfare system.
	In addition to its substantive contributions, this book stakes implicit methodological claims for the importance of interdisciplinary research in legal scholarship and for the benefits of theorizing from minority perspectives. Drawing equally on legal, historical, anthropological, and sociological materials, and examining care from minority perspectives, the book calls into question the neatness of some of feminist and queer legal theories’ most accepted generalizations about the nature of family caregiving work and the reasons it should be valued by the law. 
	Beyond feminist and queer legal theory, this book represents an important challenge to the traditional notion within liberalism that politics is effected primarily through public institutions and the public sphere—for example, through voting, speaking, organizing, and protesting. This prevailing focus on public, official, and visible political activity misunderstands the way in which politics is often manifested in many individuals’ lives. Unofficial, private, and seemingly invisible spheres of social life and organization often are equally important. 

Draft: Please do not cite, quote, or circulate without written permission.

TRANSGRESSIVE CAREGIVING

I. INTRODUCTION
	Can family caregiving be a form of political resistance or expression? It can, especially when done by people ordinarily denied the privilege of family privacy by the state.
	Feminist and queer theorists within law have, for the most part, overlooked this aspect of caregiving, regarding unpaid family labor as a source of gender-based oppression or as an undervalued public commodity. Consequently, prominent feminist and queer legal theorists have set their sights on wage work (Schultz 2000) or sexual liberation (Franke 2001a) as more promising sources of emancipation for women. Although other legal feminists continue to focus on the problem of devalued family labor, these theorists tend to justify increased support for care work primarily on the benefits it confers on children and society, on liberal theories of societal obligation, on ending gender oppression, or on simple human needs (Alstott 2004; Becker 2002; Fineman 2001, 2003; McClain 2006; Williams 2000).
	This book examines a less well-explored conception of family caregiving within the feminist and queer legal theory literature, revealing the way that family caregiving can be a liberating practice for caregivers qua caregivers. Specifically, care work can constitute an affirmative political practice of resistance to a host of discriminatory institutions and ideologies, including the family, workplace, and state, as well as patriarchy, racism, and homophobia. I label such political work “transgressive caregiving” and locate it most centrally—although not exclusively—in the care work of ethnic and racial minorities, gays and lesbians, and heterosexual men.
	Adopting this methodology of thinking from multiple lives leads, at least tentatively, to a new insight about care within feminist and queer legal theory: Although family caregiving may simply seem to support patriarchy, closer examination reveals that it can also be a deeply and complexly subversive practice. Specifically, when practiced by individuals whom the state has historically denied the privilege of family privacy, caregiving work may constitute a positive political practice of resistance to oppression.
	
II. TRANSGRESSIVE CAREGIVING AS POLITICS
A. African-American Care Practices
	The state has heavily regulated black women’s sexuality, reproduction, and family caregiving work from slavery to the present. Black women resisted and sought refuge from this discrimination in part through family and community relationships. Caregiving work within black families and communities is thus imbued with significant political meaning that derives from blacks’ historical experience of oppression. This pattern is borne out by historical materials tracing black women’s activism, as well as by contemporary social science research.
	Controlling black women’s reproduction was central to slavery (Bridgewater 2001; Jones 1985; White 1985). Slave owners owned black women’s labor and commodified their biological reproduction. This was enforced through the Roman property doctrine of partus sequitur ventrem, establishing that the issue of a female slave is born in the condition of the mother (Burnham 1987). Put simply, black women’s fertility produced their owners’ labor force. In addition, enslaved people could not form legally recognized marriages; intimate partnerships were regularly disrupted by sale, hiring out, and apprenticeships; and children were regularly and permanently separated from their mothers, often without notice (P. Davis 1997).
	Although a comprehensive review of black women’s resistance to their unique place within slavery is not possible here, one helpful example pertains to black feminist abolitionist ideology. Black feminist abolitionists identified the commodification of enslaved women’s reproduction as central to the system of slavery (A. D. Davis 1999; Stanley 1998). This vision was an alternative to mainstream abolitionist movements which defined the sine qua non of freedom as the right to sell one’s labor in the free market and which aimed to emancipate black women from their slave masters so they could come under the aegis of black patriarchs (Stanley 1998). In contrast, black women equated freedom primarily with the right to own their bodies unqualified by gender relations or capitalist exploitation.
	This “recessive” strain of abolitionism developed by black women activists is evident, for example, in a lecture delivered by free black abolitionist Sarah Parker Remond. On a speaking tour of England for the American Antislavery Society in 1859, Remond defined property in the sexual body, as opposed to the laboring body, as the essential difference between slavery and freedom. Similarly, reflecting on her newly emancipated status, ex-slave Bethany Veney stated, “A new life had come to me. I was in a land where, by its laws, I had the same right to myself that any other woman had . . . . My boy was my own, and no one could take him from me.” (1889). This conception of freedom demonstrates the way in which black women transformed intimacy, reproduction, and mothering into practices of political resistance by reclaiming them for themselves in the face of oppression by white slave masters and more tangentially by black men.
	The historical control of black women’s reproduction— and black women’s resistance through family and community relations—continues to the present. In the last century, with the end of the economic system of slavery, the regulation of black women’s sexuality and reproduction has manifested primarily through state-sponsored efforts to limit their childbearing. This more recent history includes the role of the eugenics movement in our country’s early birth control policy, sterilization abuse of black women during the 1960s and 70s, recent campaigns to encourage the use of long-term birth control methods such as Norplant and Depo-Provera among black teenagers and welfare mothers, and welfare reforms aimed at eliminating supposed financial incentives to poor, black women’s childbearing (Kessler 1995; Roberts 1999).
	In the modern era, black women have been accused of failing to discipline their children, of abusing their children, of retarding their children’s academic achievement, and of emasculating their sons and husbands (Moynihan, 1965). The alleged failure of black women’s caregiving and the expectation that black women should work were central themes in the major welfare reforms of the last decade (Fineman 1991; Kessler 1995). The construction of black women’s mothering as deviant has similarly been the basis for the heavy involvement of the state in black families through the child welfare system. Today, forty-two percent of all children in foster care nationwide are black, even though black children constitute only seventeen percent of the nation’s youth (Roberts 2002).
	In response, black women activists, beginning in the 1960s, focused considerable energy on defending black motherhood and the black family. The Negro Family: The Case for National Action (“The Moynihan Report”), published in 1965, served as a catalyst for this defense (Moynihan 1965). In the report, Assistant Secretary of Labor Daniel Patrick Moynihan drew heavily from the work of black sociologist Edward Franklin Frazier (1939) to depict the black family as a “tangle of pathology” (Moynihan 1965, p. 75), an intergenerational morass of welfare dependency, criminality, and illegitimacy. Moynihan held the uniquely matriarchal structure of the black family responsible for this pathology. According to the report, “matriarchal” (p. 70) upbringing left boys morally weakened and lacking the strong work ethic that would enable them to succeed in American society. It also reasoned that black boys needed strong male role models, and that if the black family did not provide them, the military would; there, they would be properly socialized by male authority figures.
	Black women’s resistance to such depictions was complicated by their allegiance with black men in the black liberation struggle (Umansky 1994). The black community saw the report as an example of a covert governmental policy of genocide against African-American people, along with sterilization abuse and black men’s disproportionate representation in the war against Vietnam. This perception moved certain segments of the civil rights movement toward a nationalist and pronatalist perspective. As explained by historian Lauri Umansky:
[M]any black nationalists asserted that the black nation needed to fortify itself with numbers. On the most basic level this meant that blacks must have more babies. . . . [B]lacks were enjoined to resist by drawing themselves into father-dominated families and having many babies, for “procreation is beautiful, especially if we are devoted to the Revolution” (pp. 21-22).

Consistent with this ideology, black male activists urged black women to stop using birth control. (Black Unity Party, 1968).
	Thus, black feminists’ efforts to reclaim the black family and black motherhood occurred against the backdrop of both racist, antinatalist policies of the white majority and sexist, pronatalist ideology within the black nationalist movement. In response, black activists and feminist writers reconceptualized black motherhood as a positive politics of resistance to both racial and gender oppression. For example, black feminist writers recast the black matriarch as a symbol not of emasculation but of “maternal fortitude” (Umansky 1994, pp. 27-28). Distinct from black matriarchy, which wrongly conceptualized black women as having actual material power to govern the family or society, maternal fortitude reversed the logic of the castrating black matriarch, but it retained an emphasis on the family as the key to liberation. For example, black feminist writers such as Toni Cade Bambara (1970) pointed out that women’s strength had benefited entire African societies without emasculating their men. This focus on the strong African mother challenged Moynihan’s claim about black women’s emasculation of black men.
	Angela Davis, in a famous essay she wrote from prison, refuted the notion of black matriarchy through a detailed historical analysis of slavery that demonstrated how society had misinterpreted as female dominance the “deformed equality of equal oppression” (1971, p. 8). Like black men, black women were expected to bear the burdens of slavery and the lash. As such, their “virtue” as women was never protected. Even motherhood did not improve their position. Yet, Davis argued, as mothers and nurturers inside slave quarters, enslaved black women enabled enslaved people to endure materially and spiritually. Significantly, “[i]n the infinite anguish of ministering to the needs of the men and children around her (who were not necessarily members of her immediate family), she was performing the only labor of the slave community which could not be directly and immediately claimed by the oppressor” (p. 7). Thus, the slave woman and black women more generally were not to be faulted for their power, which never really existed in the sense implied by Moynihan’s “black matriarchy,” but were to be recognized as revolutionaries (A. Davis 1971; White 1985).
	This black feminist ideology recognizing the central role of black motherhood to racial resistance was distinguished from the pronatalist cultural position of black nationalism. It was achieved through a simultaneous assertion of the right of black women to control their fertility and to control their vision and practice of motherhood (Harden et al. 1968). In sum, although the tension between antiracism and pronatalism was present within black feminist ideology, it represented an acknowledgment of the agentic potential of black motherhood. 
	Resistance to dominant conceptions of black motherhood can also be found in the practice of “othermothering” in the black community (Collins 1987, pp. 4-5; Troester 1984, p. 13). Othermothers are women who assist blood mothers by sharing mothering responsibilities. They can be but are not confined to such blood relatives as grandmothers, sisters, aunts, cousins, or supportive fictive kin. Historically, othermothering has operated not only informally, but also through well-developed institutions and movements such as black churches (Gilkes 1986), black women’s clubs (Lerner 1974; Shaw 1991), black community service organizations (Edwards 2000; McDonald 1997; Naples 1992), and the black civil rights movement (Edwards 2000). According to black feminist writers, othermothers have formed one of the important bases of power within black civil society (Collins 2000).	
	Othermothering is credited with contributing to black survival, but its significance for women’s liberation is just as great. As a practice, othermothering threatens both patriarchal and capitalist norms. Most obviously, to the extent that othermothering is defined by women-centered, fluid, family-like networks that have different purposes—for example, socialization, reproduction, consumption, emotional support, economic cooperation, and sexuality, which may overlap but are not coterminous (Mullings 1997)—othermothering undermines the patriarchal family, the male-breadwinner ideal, and the notion of biological motherhood. Perhaps less obviously, it also threatens capitalist norms, for it moves away from the concept of children as the private property of individual parents (Collins 2000).
	On an individual level, the experience of unconditional love has been especially important in the black parenting experience. Black children affirm their mothers; this affirmation is important in a society plagued by racism and the politics of black womanhood. As legal feminist Dorothy Roberts explains, “The mother-child relationship continues to have a political significance for Black women. Black women historically have experienced motherhood as an empowering denial of the dominant society’s denigration of their humanity” (2002, pp. 238). Alice Walker offers a glimpse of the positive liberatory potential of the black mother-child relationship:
	[I]t is not my child who tells me: I have no femaleness white women must affirm. Not my child who says: I have no rights black men must respect.
		It is not my child who has purged my face from history and herstory and left mystory just that, a mystery; my child loves my face and would have it on every page, if she could, as I have loved my own parents’ faces above all others . . . . 
		. . . . 
		We are together, my child and I. Mother and child, yes, but sisters really, against whatever denies us all that we are (1979, pp. 8, 42-50, 72-75).

	In sum, black women activists and feminist writers have long recognized the potentially positive political power of family and community caregiving. This recognition flows not so much from material accounts of black women’s role in biological reproduction as from a conception of black women’s oppositional moral agency. Black women have expressed this moral agency not by rejecting care work—an untenable strategy given the importance of caregiving and the family to combating racial and economic oppression—but by practicing care consistent with antiracist, antisexist ideology.
B. Gay/Lesbian Care Practices
	Gay men and lesbians also have long suffered state-sponsored discrimination with regard to their reproduction, sexuality, and family life (D’Emilio and Freedman, 1988; Eskridge 1999; Foucault 1978; Hunter and Polikoff 1976; Polikoff 1990). As in the race context, the state has effected this discrimination through the denial of substantial rights and benefits of citizenship. Gay men and lesbians have challenged this discrimination in part through their intimate relationships, not solely outside of them as traditional liberal theory would suggest. Given the possibility of a radical alternative to the hetero-patriarchal family presented by same-sex intimacy, the potential for political emancipation (as well as oppression) through family and intimate life is well understood by gay men and lesbians and by the larger society. 
	In the realm of family and intimate life, the state has relied on sexual orientation to deny gay and lesbian individuals sexual privacy, marriage and its benefits, child custody, alternative reproduction services, and adoption rights. Indeed, a core historical purpose of family law has been the promotion of heterosexual, monogamous marriage and patriarchal gender relations. For example, coverture, adultery, legitimacy, and other pre-1970s family regulations instituted procreative, heterosexual, patriarchal marriage as the American norm. Although constitutional litigation has resulted in the elimination of most de jure preferences for the patriarchal family (Lawrence v. Texas; Clark v. Jeter; Moore v. City of East Cleveland; Orr v. Orr; Eisenstadt v. Baird), it continues a robust de facto existence in the law. For example, family law, income security law, and tax law all privilege heterosexual, married individuals, especially men within heterosexual marital relationships (Fineman 1995; McCluskey 2003; Williams 1994). The marginalization and elimination of nonheterosexual, nonpatriarchal intimacy has been an essential corollary to this normalization project.
	Certain themes emerge from this history that shed light on my central claim that transgressive caregiving may constitute a form of political resistance or expression. First, the state has sought to enforce compulsory heterosexuality through family law, rendering the family a key site of emancipatory struggle for gender and sexual nonconformists (Eskridge 1999; Polikoff 1990, 2000). The legal regulation of the family, through rules that seek to control the sexuality, reproduction, and parenting of gay men and lesbians, represents a central component of the state’s heteronormalization effort. 
	Second, the protection of children from “oversexed,” “predatory” gay men has been a recurring theme in the history of state regulation of same-sex intimacy and family life. (D’Emilio and Freedman 1988; Eskridge 1999). Indeed, social historians attribute the development of the concept of the “homosexual” in America around the turn of the twentieth century in part to cultural anxieties about the protection of the sexual innocence of children (Jenkins 1998). These anxieties translated into legal rules with both benign and harmful effects. Under the auspices of child protection, states adopted increasingly strict laws prohibiting child molestation and rape, but they also used child protection as a pretext for the widespread criminalization of adult, consensual, same-sex intimacy and the civil regulation of gay reproduction, adoption, and parenting (Eskridge 1999; Jenkins 1998). For example, until relatively recently, some states criminalized same-sex sexuality (Bowers v. Hardwick), no state recognized same-sex marriage (Baker v. Nelson), and express presumptions existed against child custody for gay or lesbian parents, particularly when a heterosexual parent sought custody (Roe v. Roe).
	To be sure, there has been enormous progress in all of these areas in the past two decades (Kessler 2005, pp. 30-32). At the same time, it would be a mistake to conclude that gay men and lesbians have achieved full freedom or equality with regard to the law of domestic relations. The state continues to exercise significant regulatory control over same-sex intimacy and family life. For example, in custody disputes states now generally follow the “nexus” doctrine, which makes the sexual orientation of a parent irrelevant unless there is evidence that it will negatively impact the best interests of the child. However, courts still commonly deny gay and lesbian parents custody or visitation for other seemingly insufficient reasons, suggesting that there is still bias operating in custody disputes. For example, courts applying the nexus test commonly find a gay parent’s “lifestyle” sufficiently harmful to limit custody or visitation, especially if the parent resides with an intimate partner. And some states still explicitly retain a presumption against custody by an openly gay or lesbian parent or retain it as a factor in the best interest determination. Such rules and decisions effectively operate as a “don’t ask, don’t tell” policy in the context of custody law.
 	Although relatively early and widespread acceptance of second-parent adoption for gays and lesbians is a hallmark of the American gay rights movement (Polikoff 2000), increasing anxieties over same-sex marriage beginning in the 1990s fueled renewed attention on preventing lesbians and gay men from adopting. From 1994 to 1999, four states enacted prohibitions on second-parent adoption by same-sex couples; four additional states embraced similar prohibitions in the early part of this decade. For example, in 2002 a Nebraska court denied a petition by two mothers to have the nonbiological mother adopt their son, even though she had helped to raise him from birth, was his primary caretaker, and demonstrated “remarkable parenting skills.” (In re Adoption of Luke, p. 378). In 2000, the Utah legislature passed a law restricting adoption to married couples and unmarried individuals not cohabiting in a sexual relationship (Utah Code Ann. § 78-30-1). Although not formally stated, its purpose was widely perceived as the exclusion of gay men and lesbians from adoption in a manner that would withstand constitutional attack (Romer v. Evans). In contrast, every state in the country except Florida permits gay, lesbian, and bisexual persons to petition individually to adopt children (Lambda Legal, 2005), evidencing the existence of a “don’t ask, don’t tell” policy in the context of adoption as well as custody.
	The Supreme Court’s recent decision in Lawrence v. Texas decriminalizing private, consensual sodomy on substantive due process (constitutional privacy) grounds has thus far had little impact on state-sponsored discrimination against gay men and lesbians in the area of parental rights. For example, in 2004 gay foster parents Steven Lofton and Roger Croteau failed in their constitutional attack of Florida’s statutory ban on adoption by gay people (Lofton v. DCFS). The court upheld the law, even though Lofton and Croteau were the only parents of their foster child, Bert, since he was an infant. Similarly, an Alabama court held in 2004 that Lawrence did nothing to disrupt that state’s presumption against child custody for gay parents, transferring custody from a lesbian mother to a heterosexual father (L.A.M. v. B.M.). 
	And, of course, same-sex marriage is still illegal in all but one American state (Goodridge v. Department of Public Health), with an enormous backlash developing in the wake of the Massachusetts decision, America’s 2004 “winter of love,” and earlier victories (Baehr v. Lewin; Baker v. State). For example, in 1996, Congress passed the Defense of Marriage Act, defining marriage as a union between a man and a woman for federal purposes (e.g., Family and Medical Leave Act leave, federal taxes, Social Security benefits) and relieving states of any obligation to recognize, under the Full Faith and Credit Clause, a same-sex marriage validly entered into in another state. Along the same lines, after the Massachusetts decision legalizing same-sex marriage, the 2004 election season saw thirteen states newly amend their constitutions to define marriage as a union between one man and one woman (Kessler 2005, p. 36).
	Within the context of this history, the meaning of sexual intimacy, parenting, and family life to gay men and lesbians takes on particularly acute political meaning. Sex, reproduction, and parenting—realms traditionally associated with the private family sphere within traditional liberal discourse—may constitute practices of conscious, political resistance to subjugating legal (and other) narratives. This account is in tension with some feminist and queer legal discourse, which has framed an individual’s decision to remain partner- or child-free as an important form of resistance to the patriarchal family. But a categorical rejection of the transformative potential of care work and parenting does not sufficiently recognize the history of state-sponsored discrimination in the realm of gay family life or the radical challenge to heterosexual reproduction and family relations posed by same-sex intimacy.
	The notion that gay care practices may constitute a positive, political practice of resistance is supported by a significant body of social science research. To paraphrase anthropologist Kath Weston, “gay families we choose,” including families in which children are present, represent opportunities for a radical departure from conventional understandings of kinship (1991, p. 2). A gay family of choice may include lovers, ex-lovers, friends, co-parents, and children brought into the family through adoption, foster care, prior heterosexual relationships, and alternative reproduction (Weston 1991).	
	The AIDS epidemic provides a specific example of how chosen families and gay communities are co-constitutive. John-Manuel Andriote, in his exploration of how gay culture was reshaped by the disease, notes that “[w]hen AIDS first struck gay men, in 1981, activists quickly rallied to share information, provide services, raise money, prevent new infections, and demand assistance from a skittish federal government” (1999, p. 1). Support groups and “buddy programs” were organized throughout the country (p. 109). Volunteer “buddies” helped out with grocery shopping, cleaning, cooking, and emotional support. This impressive generosity and volunteerism served to sustain many men whose families had alienated them and friends had stopped calling.
	The AIDS epidemic also opened new possibilities for imagining lesbians and gay men as members of a unified community. In the words of one lesbian activist, “People used to say to me all the time, ‘Why do you work with AIDS and GMHC [Gay Men’s Health Crisis]? They wouldn’t work for breast cancer.’ . . . That’s partly true—but what did it have to do with the fact that all my friends were dying?” (p. 117).
	Like the tradition of othermothering within the black community, gay families of choice are made up of fluid networks that have different purposes—including emotional support, economic cooperation, socialization, reproduction, consumption, and sexuality—which may overlap but are not necessarily coterminous (Weston 1991). The willingness of gay men and lesbians to care for each other in sickness and in health has been central to the success of their bids over the last quarter century to recognition and dignity as a community and as couples. Such families of choice also undermine the defining features of the hetero-patriarchal family: heterosexual sexual relations, the male breadwinner ideal (and the sexual division of family labor on which it rests), and biological reproduction.
	The addition of children to gay families of choice does not necessarily diminish their transformative potential. Although viewing childlessness as form of resistance to patriarchy is a strong theme within certain strands of feminist and queer theory inside of law (Case 2001; Franke 2001a; Quinn 2002; Schultz 2000), researchers of gay and lesbian families within the social sciences have demonstrated how lesbian parenting may also “represent[] a radical and radicalizing challenge to heterosexual norms that govern parenting roles and identities” (Dunne 2000, p. 11)
	For example, according to sociological studies, lesbian parenting is characterized by a more egalitarian division of household labor than heterosexual families (Blumstein and Schwartz 1983; Dunne 2000; Mitchell 1995; Reimann 1998; Sullivan 1996, 2004; Weston 1991); the detachment of motherhood from its biological roots through social motherhood (Dalton and Bielby 2000; Dunne 2000; Sullivan 2004); the inclusion of known sperm donors in some cases who actively co-parent, becoming a “junior partner in the parenting team” (Dunne 2000, p. 25); and the involvement of social kin in children’s lives (Dunne 2000; Nelson 1999). As one mother stated, “Our close friends really drew in and became aunties. It’s like it created an extended sort of family with a lot of our friends. Astrid [our daughter] has many aunties” (Nelson 1999, p. 39). Psychologists have observed the potentially restorative, affirming effect of parenthood for gay men and lesbians. Children affirm their gay and lesbian parents; this affirmation is important in a society plagued by homophobia (Glazer 2001).
	Finally, gay and lesbian care practices may have powerful political effects irrespective of individual political consciousness. This is because identical symbols can carry very different meanings in different contexts. (Butler 1990, 2000). By disconnecting family formation and reproduction from heterosexual relations, extended gay kin networks and gay parenthood reveal heterosexuality and biology to be mere symbols of a privileged relationship. To the extent that these symbols still constitute the central organizing principles of family law, then, same-sex intimacy serves as a powerful destabilizing force against the law itself. As such, care can be deeply transgressive and possess significant political potential. This account of care as a positive politics contrasts with dominant accounts of care within certain strands of feminist and queer legal theory. This conception of political activism also varies from traditional liberal conceptions of politics because it transforms the private sphere of the family into a site of political resistance. This idea has much to offer to the discourse over care work within feminist and queer legal theory.
C. Care Practices of Men
	Workplace norms and the broader cultural “male breadwinner ideal” work in tandem to discourage many men from partaking in caregiving work. (Dowd 2000; Kimmel 1996; Malin 1994; Williams 2000). Although a comprehensive review of the law’s role in disciplining men out of caregiving roles is not possible here, a few contemporary examples from employment discrimination, family, and other areas of law are illustrative. 
	Significantly, the Supreme Court’s 2001 decision in Nevada Department of Human Resources v. Hibbs recognized our country’s history of employment discrimination against men with regard to family care work. The plaintiff sought leave under the FMLA to care for his ailing wife, who was recovering from a car accident, experiencing chronic pain and suicidal tendencies, and waiting to undergo neck surgery. His employer terminated him before he exhausted his leave. He lost at the trial level.
	Justice Rehnquist, in his decision reinstating Hibbs’ claim and upholding the FMLA, found that Congress’s passage of the FMLA was justified on the basis of our country’s long history of workplace discrimination against women, but he also emphasized the continued relevance of stereotypes against men: “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave.”
	The employment context nicely demonstrates society’s devaluation of men’s family care work, but perhaps the most compelling context in which to study this phenomenon is in the realm of family law. As Nancy Dowd’s (2000) research on the status of fathers within the law persuasively has shown, family law has largely conceived of fathers as the owners of children or as family breadwinners, but support for the nurturing aspect of fatherhood is very limited. For example, the law of paternity defines fatherhood “by the status it can confer upon children, rather than in terms of responsibilities, obligations, relationship, or nurturing” (Dowd 2000, p. 5). For most of the twentieth century, states presumed men unfit to serve as custodians of children in the absence of a child’s mother (Stanley v. Illinois; Ex parte Devine). Although the law has moved dramatically in the direction of shared parenting after divorce (ALI Principles 2002, § 2.08), joint physical custody is still quite rare and most custody and visitation schemes assume only a limited fathering role (Dowd 2000). After divorce, men are treated by the law primarily as economic providers, even though most men do not fulfill even that role.
	The welfare context, too, illustrates the law’s role in disciplining men out of family caregiving roles. Historically, the welfare system was intended to support the family caregiving of women. Men were presumed able to work, and the public welfare system for men was designed primarily around their links to the workforce in the form of unemployment, income security, and worker’s compensation insurance (Dowd 2000; Gordon 1994). Although these latter social insurance systems provide significantly greater benefits, come with fewer conditions, and are generally considered “entitlements” in our society, the gendered bifurcation of the public welfare state in America also evidences the disfavored status of caregiving men within the law.
	Two recent Supreme Court decisions further highlight the construction of men as inauthentic family caregivers within the law. In 2001, the Supreme Court upheld the constitutionality of a statute giving immigration preference to children born abroad to unmarried American mothers, but not to unmarried American fathers (Nguyen v. I.N.S.). The plaintiff was a nonmarital father who had raised a child abandoned by his foreign mother. The Court justified the sex-based rule—and the son’s deportation—because “[i]n the case of a citizen mother . . . the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth . . . . The same opportunity does not result from the event of birth . . . in the case of the unwed father.”
	In 2004, the Supreme Court rejected a father’s First Amendment challenge to the policy of his daughter’s public elementary school requiring teacher-led recitation of the Pledge of Allegiance (Elk Grove Unified School District v. Newdow). Demonstrating an astonishingly technical reading of custody law, the Court held that only the child’s mother had standing to challenge the policy, even though the parents shared joint legal custody and the father had a strong presence in his daughter’s life (Dowd 2005), because the family court order granting custody had stated that the mother “will continue to make the final decisions . . . if the two parties cannot mutually agree.” 
	In sum, when men engage in care work—even men in traditional marriages with relatively traditional gender patterns—they resist the male breadwinner ideal, the current structure of the workplace, and the continued construction of men as inauthentic caregivers within family and social welfare law. Thus, again, we see that family caregiving may be subversive of patriarchy when manifested in the form of transgressive care practices. This transgressive caregiving story is contrary to the dominant feminist accounts of care work, which will be discussed in Part III.

III. FEMINIST AND QUEER LEGAL THEORIES OF CARE
	This Part contrasts the positive political potential of care presented in Part II with the dominant accounts of care work within feminist and queer legal theory. Many such theorists explicitly or implicitly reject family caregiving as a potentially liberating practice for caregivers qua caregivers. For the most part, feminists and queer theorists engaged in the recent legal academic discourse over care work instead regard family labor as a source of gender-based oppression or as an undervalued public commodity at best. They have set their sights on wage work (Schultz 2000) or sexual liberation (Franke 2001a) as more promising sources of emancipation for women. Although some legal feminists continue to focus on the problem of devalued family labor, they have tended to justify societal support for care work primarily on the basis of the oppression it causes for women, the benefits it confers on children and society, or the material needs it creates for caregivers. (Becker 2002; Fineman 2001, 2003; McClain 2006; Williams 2000).
 A. Maternalist Conceptions of Care
	We start with maternalist conceptions of care because the recent controversy over care within legal feminism was sparked by this body of work, which has grown substantially in both its objects of critique and sophistication in the past decade. 
1. Care as a Source of Gender Oppression
	Nonmaternalists view care work as a form of gender oppression, but they do not have a monopoly on this perspective. Indeed, it can fairly be said that the foundation of maternalist legal feminism is a theory of women’s oppression stemming from the gendered division of family labor and the law’s role in instantiating it. 
	For example, Joan Williams has developed a theory of women’s gender oppression she calls “domesticity” (2000). Domesticity is an ideological system that organizes market work around the life experiences of men and marginalizes family caregivers. She argues that domesticity is a form of sex discrimination against women (and men) that feminists should work to eliminate through the reorganization of market and family work. Central to the concept of domesticity is the idea that family care work is compulsory and oppressive. Williams envisions a world in which care work is shared more equally between women and men, and in which the workplace is structured around the life patterns of people with family responsibilities.
	Martha Fineman (2003) is less concerned about the assignment of caretaking to women than Williams. Her focus is more narrowly on the inequities that flow from the assignment (a concern which Williams shares) and on obtaining support for caretakers in the form of state financial support and institutional accommodations. Other maternalist legal feminists, such as Mary Becker (2002), go as far as to suggest that care work may include an element of pleasure. Although Fineman and Becker are perhaps less focused than Williams on shifting the actual performance of domestic labor from women to men and the market, seeing care work as a form of gender oppression is central to their maternalist projects (Becker 2001; Fineman 2003).
	These examples demonstrate that, contrary to assertions by some nonmaternalist legal feminists (Case 2001; Franke 2001a; Quinn 2002; Schultz 2000), few maternalists embrace romanticized conceptions of the gratifications of domestic labor or biological explanations of women’s suitability for care work. For example, Fineman explicitly rejects the propositions that only women can or should be mothers and that children are the only legitimate subjects of care work (Fineman 1995). Rather, like nonmaternalist legal feminists, maternalists conceive family care work as a socially constructed, gendered practice that serves as a source of inequality for women. Indeed, a conception of care work as oppression is foundational to the maternalist project of increasing societal support for care work.
2. Care as a Subsidy, Public Good, or Public Value
	Recently, there has been a discernable shift in the rhetoric of legal maternalism from discrimination theory to the economic language of public goods and subsidy. For example, Fineman has employed the language of subsidy to expose the myths of individual independence, autonomy, and self sufficiency assumed by market ideology (2003). According to Fineman, society and all its public institutions are dependent on the uncompensated and unrecognized dependency work assigned to caretakers within the private family. Joan Williams has similarly employed the subsidy concept to critique autonomy as the organizing principle of the American workplace. According to Williams, the American “ideal worker” norm can exist only with the benefit of a “flow of household work from women” (1998, pp. 95-96). These analyses suggest that the family is subsidizing the workplace and society.
	Maternalists also have employed the idea of care as a “public good” in their arguments for increased legal and societal recognition for care work, an economic concept related to subsidy. Martha Fineman (2001) argues that the family is crucial to the reproduction of important public goods such as children, workers, consumers, and taxpayers. Mary Becker is also a proponent of the “children as public goods” theory (2002), which she traces to feminist economists Paula England and Nancy Folbre (England and Folbre, 1999; Folbre 1994). Drawing on political theory, Linda McClain (2006) makes a similar argument in her conceptualization of care work as constitutive of important public values, including caring, democracy, community, and civic participation. She argues that the government should provide support for care because it is part of its responsibility to foster individuals’ capacities for self-government. 
	All of these conceptions of care—as a subsidy, public good, or public value—are aimed at reconstructing care as a public responsibility, or at least at shifting part of that responsibility to public institutions such as employers and the state.
3. Care as a Source of Legitimate Needs
	A final conception of care work promoted by legal maternalists centers on the legitimate needs of caregivers and those who depend on them. Building on the concept of needs, Martha Fineman (1998) has developed a comprehensive theory of dependency relationships within families and between families and other societal institutions. Fineman questions how it is that only some members of society are assigned the status of dependent and asks us to consider “the conditions under which caretakers should be expected by the society to undertake responsibility for inevitable dependency” (Stake et al. 1998, p. 542 [Fineman presentation]). Because dependency negatively impacts participation in the paid labor force, caregivers need both monetary and material resources (Fineman 2003). She calls for a public response in the form of a robust social welfare state.
	Mary Becker also has taken this approach. Drawing on international human rights literature and the work of Amartya Sen (1993) and Martha Nussbaum (1999) in particular, Becker argues that a central goal of government should be to develop citizens’ autonomy, capabilities, and connections with others (2002). Poverty interferes with these basic human needs (and implicitly, rights) and highly correlates with being a woman and serving as a caretaker of children. Becker’s analysis suggests that the United States is violating the human rights of children and their caregivers by not meeting their basic human needs.
B. Nonmaternalist Conceptions of Care
	Legal maternalism has provoked a number of critical reactions by a group of legal feminists I will call nonmaternalists. Nonmaternalist legal feminists reject the inevitability of motherhood for women. They have set their sights on other aspects of women’s identity such as sexual liberation or wage work as more promising sources of emancipation for women. Central to the nonmaternalist critique of legal maternalism is the charge—reminiscent of the 1980s critique of cultural feminism—that maternalism essentializes women around gender roles.
1. The Charge of Essentialism
	Nonmaternalists charge maternalists with perpetuating an essentialist conception of women’s identity. This critique is aimed both at the narrow definition of valuable care work implicit in much maternalist work and at maternalists’ inattention to life endeavors other than care work.
	As to the first concern, Mary Anne Case (2001) suggests that many maternalists are inattentive to the circumstances of childless women and women with family commitments that do not revolve around children. She suggests that the workplace and society already are unfairly subsidizing certain preferred families with dependents. Case also raises the concern that legally mandated employment benefits for employees with children, which some maternalists have sought, will cause childless women workers to suffer increased discrimination and workload burdens.
	Although Case notes that many of her concerns would be addressed if workplace benefits were available regardless of parental status, her critique of legal maternalism is more fundamental: “The difficulty I have experienced goes beyond privileging certain kinds of family over others, and more broadly extends to a privileging of family matters over an employee’s other life concerns” (Case 2001, p. 1767).
	Katherine Franke takes up this point in an essay challenging legal feminists for insufficiently theorizing sexuality as a positive force in women’s lives. She asks:
Why do legal feminists frame questions of sexuality more narrowly than our colleagues in other fields? Is there something intrinsic to a legal approach to sexuality that deprives us of the tools, authority, or expertise to address desire head on? Can law protect pleasure? Should it? Or have legal feminists implicitly made the (I believe mistaken) strategic judgment that feminist legal theory cannot explore sexuality positively until danger and dependency are first eliminated? (2001a, pp. 182-83).

	Vicki Schultz (2001) makes a similar assertion with regard to the significance of paid work for women. In an essay that can be seen as a companion piece to Franke’s, she argues that legal maternalists have failed to take women seriously as wage workers. Paid work, according to Schultz, is the cornerstone of equal citizenship. From this proposition, Schultz questions feminist “family-based” strategies to value women’s domestic labor through divorce reform and welfare laws. Explicit in her analysis is the assertion that family care work is a less promising route to equal citizenship than wage work.
2. The Dangers of State Support for Care
	A second critique of legal maternalism concerns maternalists’ affinity for public, state-based solutions to the problem of devalued family labor. According to this critique, maternalists’ efforts to justify employer and state support for dependency based on the valuable role of the family in social reproduction carries serious risks of government intrusion into the family, risks that are more likely to be borne by nontraditional families. For example, Katherine Franke (2001) warns of the mixed blessing of state involvement for emancipatory movements, citing the devastating social and economic consequences for African Americans of Reconstruction-era state efforts to “civilize” emancipated slaves by disciplining their familial lives to conform to the gendered rules of marriage (pp. 1550-51).

IV. A SHARED POSITION: CARE IS NOT A POTENTIAL SOURCE OF LIBERATION
	The nonmaternalist account of legal maternalism suggests a large gap between the two camps. I think this is wrong for two reasons. First, legal maternalism is not the crude form of cultural feminism that the nonmaternalists have made it out to be. As this section will demonstrate, given a fair reading, legal maternalism is far more consistent with legal nonmaternalism than the nonmaternalist account suggests. Second, and perhaps less obvious, legal maternalists also view care as an oppressive practice that women should be cautious to define themselves around. Although maternalism does not explicitly adopt this position, it is apparent, however subtle, in maternalists’ reliance on antidiscrimination-, child-, or needs-focused justifications for the legal recognition of care work—all justifications that stop short of acknowledging the potentially positive meaning of the practice of care to individual caregivers. Thus, we see that despite their fundamental disagreements, both sides of the maternalist/nonmaternalist divide demonstrate an explicit or implicit discomfort with viewing care as a practice with liberatory potential.
A. How Legal Nonmaternalism Insufficiently Credits the Liberatory Potential of Care
	I will begin with legal nonmaternalism, because it presents the most explicit case against viewing care as a potentially liberating practice. It should be clear by now that legal nonmaternalists see caregiving primarily as a source of oppression for women. This characterization is misguided. As Part II demonstrates, when care is practiced outside the traditional family, it can be deeply subversive of gender, race, class, and sexuality norms. Nonmaternalists miss this aspect of care work; in doing so, they exclude a great many care practices and caregivers and thus perpetuate their own form of essentialism. Moreover, their antiessentialist critique rests in many regards on a caricaturization of legal maternalism as a crude form of cultural feminism. In this way, legal nonmaternalists insufficiently credit the radical potential of legal maternalism and caregiving more generally to subvert gender, race, class, and sexuality norms.
	Contrary to this caricature, legal maternalism draws on widely divergent legal feminist traditions. In its presentation of a comprehensive theory of rights, legal maternalism represents the best of the tradition of liberal feminism. In its disruption of the heterosexual marital family, it is deeply radical. In its highly sophisticated critique of neoliberalism, it represents a refreshing and sorely needed revival of socialist feminism. In its deconstruction of the public and private, its understanding of the role of law in women’s oppression, and its incorporation of axes of subordination other than gender (such as class), it is a postmodern feminism. And finally, in its strategic deployment of socially constructed gender differences to unsettle inequities between the sexes, legal maternalism is indeed consistent with cultural feminism.
	Further, the insistence by nonmaternalists that the law reforms proposed by legal maternalists merely serve to perpetuate gender ideology insufficiently credits the subversive potential of such reforms. Welfare- and family-based strategies to end the devaluation of family labor deeply threaten gender ideology by supporting families where men are not primary breadwinners and by enabling women to exit marriage. The welfare and divorce reforms proposed by maternalists also challenge our country’s class hierarchy, which systematically relegates women and racial minorities to a permanent underclass. To critique maternalism as uniformly gender-reinforcing is to miss the important lesson of antiessentialism that race, gender, and class are complex, interdependent systems of subordination. There is no single “right” place of entry to attack these systems because every move will be both potentially progressive and retrograde.
	For example, looking to wage work as a promising source of citizenship for women, as Schultz has done (2001), is a project worthy of feminist support; but to identify it as the preferred route to women’s emancipation both insufficiently credits the transformative power of legal maternalism and perpetuates a racist, classist, and heterosexist understanding of the meaning of wage work. Work has meant equal citizenship primarily for white, straight, economically privileged women and men; it has been a significant source of exploitation for women and men of color (Collins 2000; Glenn 1992; Palmer 1989; Roberts 2004), lower-class whites (Kessler-Harris 1982), and gay people (Eskridge 1999), many of whom have historically occupied the bottom rungs of our wage economy. To be fair, Schultz acknowledges the oppressive effects of modern capitalism. However, in the final analysis she maintains that wage work is a more viable source of women’s liberation than care, thereby diminishing the significance of her concession that there is nothing inherently democratizing or equalizing about the workplace.
	Similarly, although developing a liberationist theory of women’s sexuality is an important project, I question whether legal maternalism constitutes as significant a roadblock to such a project as Franke (2001a) suggests. Although many legal maternalists accept the inevitability of motherhood for women—indeed, this defines legal maternalism in part—perhaps this position should not be so facilely equated with repronormativity. “Repronormativity” does not describe all reproduction, as Franke’s argument suggests. Rather, it refers to women’s reproduction for men, particularly white, straight men. The transgressive parenthood that legal maternalism potentially supports may thus present a subversion of repronormativity, not a furtherance of it (Fineman 1995). As Part II explored, what of the reproduction and parenting of lesbians and gay men? Of racial minorities? Although the women at the center of a great deal of maternalist discourse are at least implicitly heterosexual (that is, women who are unmarried due to divorce or poverty), legal maternalism easily can accommodate women who do not seek to have sex with, reproduce with, or parent with men, as well as men who transgress traditional gender roles (Kessler 2005).
	Can we not work toward a vision in which women (and men) are fully, positively, freely sexual beings and parents or caregivers as well? Other than the fact that human beings should not have to choose among various potential sources of joy, is it even possible to single out for protection, as Franke seeks to, the “domain of sexuality that is the excess over reproduction” (2001a, p. 205)? Which potential allies and liberatory paths are cut off as well as enabled by such a dualistic notion? Aside from the fact that a great deal of heterosexual sex is always potentially about reproduction, reproduction is potentially about sexual pleasure. Consider these findings: Many women experience increased sexual response and achieve orgasm more easily during pregnancy (Murkoff et. al. 2002). Some women experience intense sexual pleasure or even orgasm during birth (Maso 2000; Murkoff et. al. 2002; Shanley 2005). Although the primary justification for breastfeeding is the health benefits afforded to infants, it also happens to be highly pleasurable for many mothers (Korte and Scaer 1992). A recent study suggests the pheromones produced by lactating women and their infants increased the sexual motivation of other women, measured as sexual desire and fantasies (Spencer et al. 2004). To the extent that Franke is correct that women’s sexuality has been conceptualized by legal feminists as little more than an object of biological or economic exploitation, something like a factory (Martin 1987), or as a means of giving pleasure to men, could not reclaiming the sexual pleasure involved in reproduction threaten these conceptualizations just as readily as (if not more directly than) the “sex for sex’s sake” approach?
	It is also worth considering the effect of women’s reproduction on traditional gender relationships. Women’s interest in sex with men decreases significantly in the postpartum period and marital satisfaction and stability decline with parenthood (Crohan 1996; Shapiro et al. 2000). In some instances, this decline in marital satisfaction after the birth of a first child is a significant contributing factor to divorce (Belsky and Pensky 1988; Hoge 2002). Perhaps reproduction is threatening to repronormativity and heteronormativity. Could we not just as easily be dusting off our Adrienne Rich (1976) as our Shulamith Firestone (1970)? Franke’s antiessentialist critique of maternalism unnecessarily slams the door on these promising lines of inquiry.
	However, my primary aim here is not simply defending legal maternalism. Rather, I wish to call attention to the ways in which both legal maternalism and legal nonmaternalism insufficiently credit the liberatory potential of family care work for caregivers. 

B. How Legal Maternalism Insufficiently Credits the Liberatory Potential of Care
	Legal maternalists have argued that caregivers should be supported and recognized through law because they are victims of gender oppression, because they are providing a valuable public service, and because they have material needs that cannot be ignored in a just society. Implicit in the choice of these justifications, however subtle, is the rejection of care work as a potential source of positive political transformation for caregivers themselves. This is problematic for at least two reasons. First, in its inattention to the positive political implications of care work, it does not fully internalize one of the purported premises of legal maternalism that care is a positive value worth mainstreaming throughout society. And second, to the extent that certain transgressive care practices may have positive political content, legal maternalism’s inattention to that meaning unnecessarily excludes a good number of women (and men).
	Why have legal maternalists, of all legal feminists, relied on justifications for supporting care that do not fully credit the liberatory potential of care for individual caregivers? The first reason is external to legal maternalism. Because legal maternalists are operating within the confines of the discipline of law, they must speak in its language. This has meant turning to justifications that may not sufficiently capture the positive potential of care for the individual. For example, legal maternalists’ construction of care as a matter of public responsibility is a direct response to the law’s definition of the private family as the proper societal institution for meeting the needs of dependents in our society. The argument that children are a public good represents an effort to counteract, on its own terms, neoliberal ideology, which increasingly dominates political and legal discourse. Theorizing the problem of devalued care as form of gender discrimination is consistent with the rights tradition that lies at the center of liberal legal theory and our law. These translation efforts mean that the battle is already half lost when it has begun (Brown and Halley 2002). This is inevitable for any liberatory movement that employs law; one cannot get completely outside the frame.
	The second reason for the legal maternalist reluctance to recognize that care may be political in a positive, subversive sense is primarily strategic. Although legal maternalists explicitly reject the notion that supporting individuals in traditional gender roles will necessarily perpetuate them, I think they implicitly harbor such a fear, as evidenced by their less than full exploration of the potentially positive meaning of caregiving for caregivers. As demonstrated by Part II, contrary to the nonmaternalist critique and the implicit position of legal maternalists, care can be radical, at least to the degree that any practice can be. As such, legal maternalists do not have to turn away from care in their efforts to subvert oppressive gender, race, class, and sexuality norms. Rather, such a project can be furthered through a fuller recognition of transgressive caregiving as politics.
	On the other hand, the nonmaternalist critique presents a series of legitimate concerns that should be addressed by maternalists—again, not by changing the subject as some nonmaternalists have suggested (Franke 2001a; Engle et al. 2003 [Halley presentation])—but by developing a thicker, more positive conception of care. Here it is worth asking: Do the justifications relied upon by legal maternalists tap into the full potential of legal maternalism to fashion a theory of justice that takes into account the broadest array of individuals who could be, and should be, benefited by our projects? Are there risks involved when we rely on justifications that construct the family essentially as a site of public reproduction? Who stands to benefit and who stands to lose from such a conception? Those individuals for whom the state has been most disciplinary—for example, women of color and gays and lesbians—are at serious risk from such a conception of care, however useful it may be to challenging the present shift to private ordering. Further, can appeals to justice and human needs succeed in a country so committed to individualism and to liberal conceptions of rights? Will our efforts require a further articulation of why human needs should be recognized as human rights in a language our legal and political systems are likely to understand? And finally, can we supplement the existing conceptions of care with accounts that reflect the full range of care’s meaning, including its positive potential? Here I am not arguing for a cheery story for its own sake or for appeasement of those tired of hearing about women as victims. Many are victims in many ways. But it is also true that caregiving constitutes a potentially empowering practice. Which additional important experiences are overlooked by these conceptions? I would suggest that it is the full range of experiences of those who engage in transgressive caregiving practices.

V. IMPLICATIONS FOR LAW
	What are the implications for law of recognizing transgressive caregiving as a political practice with subversive potential? Although the present status of transgressive caregiving within the law is in many regards consistent with past patterns of regulation and marginalization, it is increasingly gaining recognition and protection. 	At this emancipatory moment, the potential for transformation is great, but so are the risks that legal acceptance of previously marginalized relationships and care practices will come on assimilatory terms. If this is true, strategies that do not easily fit within mainstream legal constructs will be potentially more subversive than those that simply seek to articulate rights in easily cognizable terms.
	The impulse at this historic moment of recognition for transgressive caregivers, such as people of the same sex who wish to marry, is to use the language of equality. Although the formal equality strategy may have more appeal to lawmakers than the “transgressive caregiving as politics” conception, it also is more likely to reify the very hierarchies it seeks to undermine. Explicitly adding the political dimensions of transgressive caregiving to the current rights discourse over same-sex marriage may counteract some of its assimilatory effects by maintaining the difference of gay people while also avoiding sociobiological conceptions of “difference.”
	Beyond same-sex marriage, family law would be greatly enriched and the quality of people’s lives improved if the law recognized and protected transgressive care practices as a form of valuable political expression. For example, although many states now permit a child to have two legal parents of the same sex (Kessler 2005)—a significant step forward for transgressive caregiving practices—American family law generally takes the position that a child can have no more than two legal parents (Johnson v. Calvert; Michael H. v. Gerald D.). Where consensual and in the best interests of the child, why not allow more than two adults to serve as the legal parents of a child, with designated primary and secondary parents, which as a practical matter reflects the arrangement of many families within minority communities already? Along the same lines, in the case of family dissolution, why not augment a child’s right to receive child support from only one noncustodial parent—typically a male, biological parent? If we look to the parenting practices in African-American and gay communities, a whole range of individuals are likely to have economic and affective ties to a child worth preserving. Recognizing such care practices, which can be highly functional and are constitutive of such communities, would represent long-deserved recognition of the value of that care (Bartlett 1984).
	This could take various forms. For example, in Canada, a court may order more than one noncustodial parent to pay child support concurrently (for example, a biological father and a stepfather) if the nonbiological parent stood in the place of a parent to the child, apportioning support according to the role each adult played in the child’s life or even applying the full guideline amount to each adult independently. Or perhaps a more robust welfare state, in which both the state and a set of individuals would be jointly responsible for a child, would be the logical consequence of a society in which caregiving—transgressive and not—were recognized. Other law reforms that might follow, in one form or another, from a commitment to transgressive caregiving include open adoption and a foster care system where parental rights are not terminated on a fast track (Roberts 2002), but are shared with foster parents consistent with a child’s welfare.
	In addition to informing debates surrounding the legal recognition of alternative family forms, reconceptualizing care as possessing positive political content under certain circumstances may serve to inform present discourses over the provision of welfare. That is, recognizing the political significance of transgressive caregiving adds a new justification for supporting the care work of women receiving welfare while providing a conceptual basis for limiting state intervention into their families.
	Finally, as a strategy that is likely to involve a wide range of individuals, conceptualizing transgressive caregiving as a positive political practice of resistance is likely to further advance such progressive law reform efforts. For example, the explicit linkage of gay and minority care practices may serve to forge important coalitions across race lines that will strengthen both the gay liberation and welfare rights movements. Along the same lines, although the legal feminist discourse on care has largely conceptualized the interests of men and women as adverse, to the extent that men are transgressive caregivers in certain contexts, they too potentially can be part of law reform efforts aimed at valuing care. In sum, highlighting the common political content of transgressive caregiving across race, class, sex, gender, and sexuality lines may serve as a basis for more effective coalition building and law reform.

VI. CONCLUSION
	Transgressive caregiving—that is, care work performed outside of traditional family contexts by those whom the state has historically denied the privilege of family privacy—is a potentially deeply and complexly subversive practice. Specifically, transgressive caregiving is a practice that can subvert a host of discriminatory ideologies, including patriarchy, racism, homophobia, and class-based exploitation.
	Feminist and queer legal theory have neglected transgressive caregiving as an important form of resistance for many women and men. This pattern is apparent in the explicit rejection of caregiving as a potentially positive source of identity by nonmaternalists. It is also apparent, however subtle, in the work of maternalists in their reliance on child-focused, antidiscrimination, and needs-based justifications for the legal recognition of care work.
	Both sides of the maternalist/nonmaternalist divide have important contributions to the current debate within law on the significance of care work. It is time to do the hard work of integrating legal maternalism and nonmaternalism. Recognizing care as a potentially subversive political practice constitutes a small step in that direction. This thicker conception of care has the potential to bring together critical legal theorists around the issue of care, to produce even more transformative law reforms, and to build bridges among legal feminism and other emancipatory legal movements. 

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Constitutions

U.S. Const. art. IV, §1

Statutes

Defense of Marriage Act of 1996 (DOMA), codified at 28 U.S.C. § 1738c and 1 U.S.C. § 7 (2000).

Fla. Stat. § 63.042(3) (Supp. 2004) (enacted 1977).

Miss. Code Ann. § 93-17-3(2) (2004).
N.H. Rev. Stat. Ann. §§ 170-B:2(XV), 170-F:2 (IV) (2005) (enacted 1986), repealed by Act of May 3, 1999, 1999 N.H. Laws 18 (H.B. 90).

10 Okla. Stat. § 7502-1.4(A) (2004).

Utah Code Ann. § 78-30-1 (2004).

Cases

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).

Baker v. State, 744 A.2d 864 (Vt. 1999).

Bowers v. Hardwick, 478 U.S. 186 (1986).

Chartier v. Chartier, [1999] S.C.R. 242 (Can.).

Clark v. Jeter, 486 U.S. 456 (1988).

Davidson v. Coit, 899 So.2d 904 (Miss. Ct. App. 2005).

Ex parte Devine, 398 So.2d 686 (Ala. 1981).

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).

Hertzler v. Hertzler, 908 P.2d 946 (Wyo. 1995).

Hibbs v. Department of Human Resources, 538 U.S. 721 (2003).

In re Adoption of Baby Z., 724 A.2d 1035 (Conn. 1999).

In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998).

In re Adoption of Luke. 640 N.W.2d 374 (Neb. 2002).

In re Adoption of T.K.J., 931 P.2d 488 (Colo. Ct. App. 1996).

In re Angel Lace M., 516 N.W.2d 678 (Wis. 1994).

Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).

L.A.M. v. B.M., 906 So. 2d 942 (Ala. Civ. App. 2004).

Lawrence v. Texas, 539 U.S. 558 (2003).

Li v. State, 110 P.3d 91 (Or. 2005).

Lockyer v. City and County of San Francisco, 95 P.3d 459 (Cal. 2004).

Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004).

McGriff v. McGriff, 99 P.3d 111 (Idaho 2004).

Michael H. v. Gerald D., 491 U.S. 110 (1989).

Moore v. City of East Cleveland, 431 U.S. 494 (1977).

Nguyen v. I.N.S., 533 U.S. 53 (2001).

Orr v. Orr, 440 U.S. 268 (1979).

Roe v. Roe, 324 S.E.2d 691 (Va. 1985).

Romer v. Evans, 517 U.S. 620 (1996).

Stanley v. Illinois, 405 U.S. 645 (1972).

Tucker v. Tucker, 910 P.2d 1209 (Utah 1996).