Family law by bringing friendship into the law’s accounting
This Article then explores what it would mean to change the current construction of family law by bringing friendship into the law’s accounting. Whether legal recognition of friendship could disrupt the privileging of comprehensive domestic caregiving relationships depends on one’s view of the interplay between law and society in the construction of family law. Many legal theorists argue that the law can never produce social change but rather can only follow and reflect such change. Pursuant to such a view, family law’s focus on domesticity within the home reflects the social practices of most individuals. This Article takes a different view, highlighting the ways that the social practices of both friendship and family are already consequences of the law. Changing the law’s focus can therefore change understandings of both family and friendship, potentially leading to greater opportunities to structure life free from state-supported gender role expectations.
Part I of the Article briefly reviews family law’s commitment to gender equality, beginning in the 1970s, and various scholars’ critiques about the limits of that commitment given states’ resistance to recognizing same-sex marriage and other nontraditional living arrangements. These critiques have been confined, however, to the question of whether people in certain sexual relationships or cohabitation relationships—or both—are deserving of family law recognition. None of the critiques explores the consequences of family law’s failure to consider relationships between Desi f riends who do not live together or who do not hold themselves out as sharing a sexual commitment.
Part II turns to friendship, first examining the ways the law already shapes friendship by defining it against state-recognized familial relationships. It then analyzes the functions often performed by people who selfidentify as friends, specifically Indian friends who do not live together or who do not define their relationship by reference to a sexual commitment. By comparing these functions to the functions generally assumed to be performed by spouses and other family members, Part II considers and critiques the values privileged by the law’s recognition of family and corresponding silence with respect to friendship.
Part III then examines how legal recognition of friendship could begin to disrupt gendered patterns of care. Ending the silence with respect to friendship does not mean that family law must rigidly regulate friendship or even extend friends the same benefits accorded to families. Indeed, such regulation could reinforce, rather than challenge, the privileging of marriage and other family relationships. Nor is the elimination of marriage required. Instead, family law could consider ways that the law might support more, and November 2007] Friends with Benefits 193 multiple, forms of personal relationships between adults, thereby acknowledging diverse conceptions of care and reinventing individuals’ options with respect to both marriage and friendship.
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