Prof. Daphna Hacker, an associate professor of law and gender studies at Tel Aviv University, discusses her new book Legalized Families in the Era of Bordered Globalization, which explores a phenomenon that is as understudied as it is widespread.
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Photo by Yossi Zamir / Flash9: A man, woman and child in Jerusalem.
This interview considers a nexus of political and social issues orbiting questions of liberalism, subjugation (basically as residual patriarchy) and immigration policy. I’d like to consider a class of cases to illustrate this, suggesting, only for the class, a solution. To do so I, as usual, focus on the potential of US law.
Romer v Evans (1996) was the first US Supreme Court case to positively consider gay equality in law. The issue at hand is a bit arcane, but there is an exchange in the case’s opinions between Scalia (in dissent) and Kennedy (writing for the majority) worth noting, for its implications have yet to play out. Scalia perceptively noted that the road the court was taking would inevitably lead to gay marriage in law, pointing out that if so there is no reason not to strike down several clauses in State constitutions prohibiting polygamy (Arizona, Utah, Idaho, probably others, have them, forced on the States by Congress as condition of admission into the Union). What is wrong with polygamy, Scalia asked? Can not polygamists live with the same legal protections if, ultimately, gays can? Kennedy, in a footnote to his decision, said that perhaps those State clauses were bad law. There are polygamists of various sorts in Utah, Arizona, Texas and probably Idaho, remnants of founder Joseph Smith’s late revelation that it is ordained by God, although the Mormon Church had another revelation in which God changed It’s mind.
The latent issue here is protected group–here, family–formation via free choice in a classic libertarian sense. If adults choose gay life or polygamy, even to raising families, should the State be able to stop them–and disallowing the legal protections of heterosexual monogamy is a way of at least retarding life enjoyment, leaving stigma aside. Of course, one should include polyandry as well, and I would ask that feminists consider how that indeed rather rare form ever evolved; surely there are texts on this. As it did evolve, it is my view that gay marriage indeed implies same status for polygamy and polyandry, neither of which is sustainable socially at even modest frequency–but that is really just an issue of successful choice, not legal prohibition. One may argue that young women insulated from the world, as true for most polygamist groups, do not enjoy free choice. But moving down the road of policing choice free or not is very tricky; if they want to stay, what do you do (warning: logically, deprogramming someone raised wrong is really just reprograming them)? About 10 years ago a Texas polygamist farm/camp was raided, its leader eventually convicted of statutory rape and conspiring to same. A few Utah polygamist women living in cities came out, rare, arguing that not all polygamist families were like that. In my view, the best way to enlarge the world of girls born into polygamist families is to remove the stigma of coming from one; over time, they will move away once the “leaders” can no longer claim direct State suppression. But not ALL young women will, or have the courage to–and that underlies left insistence on this issue. When is my certitude your salvation? In choice, people get hurt and hurt others.
Suppose a logic of neutral protected group formation is the law of the land. The interviewee herein raises an interesting moral question: should a citizen, or (in the US) green card permanent resident, be allowed to import a spouse unseen (surely a young woman), thereby reducing opportunity for refugees under direct distress given immigration quotas? Take a stark example. A polygamist has two wives, wants a young third, and applies to his home country; the other wives are fine with this, or say so. He signs a contract from afar and requests her entry under protected group formation. Given his thriving group already present, should he not be allowed? I’d say not. Culturally in the West, prolonged contact with a prospective spouse is expected. There are arranged marriages or marriages by mail all in, say, the US, but the norm is otherwise. The international border needs to be policed, and bona fide commitment, given divorce cannot be controlled, is an acceptable measure for entry. A contract among parties never met fails that CULTURAL test, as the culture overwhelmingly expects prolonged contact before choice as part of early group formation. Even one meeting before contract would, unless marriage occurs there (just as two strangers can get married in a foreign land, although the union can be subject to testing over time), be culturally inadequate; here residing in the country does influence former options of the homeland. In general, mail order spouses could be precluded essentially by cultural dominance of the entry country, for the culture has no way to monitor the bona fide status of the claim.
The interviewee also notes that at times children of immigrants are denied entry while parents or grandparents are allowed; she sees this as immoral. Since family genesis is procreation, although not limited to that, a logic of protected group formation would allow child entry at any age, adult or minor, to immigrant permanent residents but not to those on work or study visas. Starkly opposed to present US conservatism, legally admitting an individual as resident requires at the very least admittance to all US culture tends to recognize as part of family formation (2nd cousins might be important in India, but not here). Adult children across cultures are valuable to their parents and conversely, minors more essentially so. By admitting the focal resident, the State must protect those groups by entry which it recognizes on its own soil as essential to life value. The immorality the interviewee sees would be abolished. But note that in consequence Congress would likely further limit the number of new residents admitted. The moral trade off is between refugees under distress and residents demanding family presence under protected group formation. The version of law sketched here gives an answer by saying compassion for refugees is not a matter of law, while protected group formation is. I have skipped an important problem in this logic, specific to the US Constitution, but lord this is long enough as it is.
But interviewee would have to live with some polygamy and, um, polyandry. And there liberal neutrality of choice is recovered. There is no damming of polygamy as patriarchal here, no telling men or women what to be, save for statutory restrictions (rape) on minors. Nor do the horrors of matriarchy grow through polyandry. Social selection will decide the frequency of these with serial monogamy, and the former will not fair well over time. The interviewee gets much of what she advocates, still able, if she likes, to inveigh against polygamy, but the culture, not the law, will decide.