From Contract To Status - Collaboration and The Evolution of Novel Family Relationships PDF

FROM CONTRACT TO STATUS:
COLLABORATION AND THE EVOLUTION OF

NOVEL FAMILY RELATIONSHIPS!
Elizabeths. Scott*& RobertE. Scott**
The past decade has witnesseddramaticchangesin public atti-

tudesabout and legal statusfor same-sexcoupleswho wish to marry.
Thesechangesdemonstrate thatthelegal conception ofthefamilyis no
longer limitedto traditional marriage.They also raise thepossibility
thatotherrelationships - cohabitingcouplesand theirchildren , volun-
tary kin ,
groups multigenerational groups, and -
polygamists might
gain legal recognition as families. This Articleprobesthe challenges
faced byaspiringfamiliesand the means bywhichtheycould attain
theirgoal. It buildson thepremisethatthestateremainscommitted to
social-welfarecriteria
forgrantingfamily status as
, recognizing families
onlythosecategoriesof relationships thatembodya long-term commit-
mentto mutualcare and interdependence and, on thatbasis, function
well to satisfymembers'dependencyneeds. Groupsaspiring to legal
recognition as familiesmustovercomesubstantialuncertainties as to
whethertheymeetthesecriteriaif theyare to obtain the rightsand
obligationsof legallyrecognized families.Uncertainty contributes to a
lack of confidence in thedurabilityand effectiveness of theirrelation-
shipson thepart of theaspiringfamilymembers themselves, thelarger
social community, and, ultimately, thestate. The Articledevelopsan
informalmodelto illustratethenatureoftheseuncertainties, as wellas
thesolutionsto thepossibleobstaclestheycreate.Using a hypothetical
group consistingof two adult men and two adult womenin a poly-
amorousrelationship, we showhow legal statusforfamilygroupscan
resultfroman evolutionary processfor overcoming uncertainties that
uses collaborativetechniques to build trustand confidence. Collabora-
t The titledrawson (and challenges) HenryMaine'sfamousstatement that"the

movement oftheprogressivesocieties
has. . . beena movement fromStatustoContract."
HenrySumnerMaine,Ancient Law170 (Transaction Publishers2002) (1866) (emphasis
omitted);see BrianH. Bix,Private
Ordering in Family
Law,23J.Am.Acad.Matrimonial
Law.249,259n.30(2010)(discussing domestic-relationscontextofMaine'sstatement).
* HaroldR.MedinaProfessor ofLaw,Columbia LawSchool.
** AlfredMcCormack Professorof Law,ColumbiaLaw School.For helpfulcom-
mentson earlierdrafts,
wethankErezAloni,BrianBix,PegBrinig, HanochDagan,Max
Eichner,Liz Emens,Katherine Franke,Ron Gilson,BertHuang,Clare Huntington,
ShaharLifschitz, SuzanneKim,Doug Nejaime,ChuckSabel, GeorgeTriantis, and
atfaculty
participants workshops atWilliam andMaryandColumbia lawschools.Forout-
standingresearch we aregrateful
assistance, to GraceDavis,JohnKnight, Gatsby Miller,
andSarahSloan.Forfinancial wethanktheMarcandEvaSternFaculty
support, Research
Fund.
293
This content downloaded from 128.59.161.126 on Wed, 09 Dec 2015 15:06:51 UTC
All use subject to JSTOR Terms and Conditions
294 COLUMBIA LAW REVIEW [Vol. 115:293
tiveprocesseshave beenshownin othersettingsto be effective mecha-

nismsfor creatingtrustincrementally and thusappear to offera way
forwardfor novelfamilies. The Articledescribeshow the successful
movement to achievemarriagerightsfor LGBT coupleshas roughly
conformed thecollaborative
to processeswepropose,and it identifies
the
absenceofmeaningfulcollaboration as onefactorexplainingthestasis
thatcharacterizes thestatus of unmarriedcohabitants.This evidence
supports predictionthatthefutureprogressofotheraspiringfamily
the
groupstowardattaininglegal statusmaydependon howwelltheyare
able to engagethecollaborative mechanisms thatsmooththepathfrom
contract tostatus.
Introduction 295
I. Marriage and the Special Legal Status of Families 301
A. FamilyChange and the Evolution of Social Attitudes 302
B. The Qualities of Well-FunctioningFamilies 304
C. Marriage as an Enduring FamilyForm 306
1. ContemporaryMarriage as a PrivilegedStatus 306
2. The Durabilityof Marriage as a FamilyForm 310
D. Extending State Benefitsto Other Families 313
II. A Collaborative Model of the Evolution of
Novel Family Forms 314
A. Conditions Impeding the Legal Recognition of
Novel FamilyRelationships 315
1. The Problem of Relational Novelty 316
2. Social Isolation: The Absence of Associational
Bonds and Public Acceptance 318
3. The Verifiability Problem 320
B. The Evolution Toward Legal Recognition
Through Collaboration 321
1. The Elements of Collaborative Behavior 321
2. Collaborative Contractingas a Means of Coping
withUncertainty 322
a. A Commercial Analogue: Collaborative
Contractingin an Uncertain World 322
b. Key Elements of Collaborative Agreements 324
c. Collaborative Contractingin the FamilyContext 326
3. Moving fromIsolated Collaborations to a
Socially Integrated Collaborative Network 329
a. NormativeIntegrationin Common-Purpose
Communities: The Case of Collaborative Networks 329
b. NetworkCollaboration and Normative
Integrationof Novel Families 331
2015] FROM CONTRACT TO STATUS 295
4. Resolving the VerifiabilityProblem Through

Collaborative Regulation 338
a. Legal Certificationto Guard AgainstUncertain
Risks 338
b. An IterativeApproach 339
c.Joint Mitigationof RisksThrough "Best Practices"
Collaboration 340
d. The Licensing of Individual Families 342
III. From Theory to Practice: The Way Forward for New Families 344
A. Same-Sex FamilyRelationships: From Outlaw to Mainstream.. 344
1. Contract and Commitment 346
2. Political Action, Public Acceptance,
and NormativeIntegration 348
3. Incremental ProgressToward Legal Recognition 355
B. The Incomplete Recognition of Cohabitation Relationships... 359
1. Cohabitation and Norm Creation: Networking
and Integration 360
2. Cohabitation and the VerifiabilityProblem 362
C. Non-dyadicNovel Families: NavigatingNew Territory 364
1. Polygamous Groups 365
2. Nonconjugal Aspiring Families 369
a. MultigenerationalGroups 370
b. VoluntaryKin Groups 371
Conclusion 374
Introduction
Many contemporary scholars and policy advocates challenge the

privilegedstatusof marriage,arguing that the state should recognize and
support other familyrelationships.1Historically,this challenge has been
1. Oftencriticsarguefortheabolition oflegalmarriage.
See,e.g.,Martha Albertson
Fineman,The NeuteredMother,the Sexual Familyand OtherTwentieth Century
Tragedies226-36 (1995) [hereinafter Fineman,NeuteredMother](challenging privi-
legedstatusofmarriage and arguing maritalprivilegeshouldbe transferredto families
basedon caretaker and dependent); NancyD. Polikoff, Beyond(Straight and Gay)Mar-
riage:ValuingAllFamilies UndertheLaw98-109,123-45(2008) [hereinafter Polikoff,
BeyondMarriage](arguingprivileging marriage harmsotherfamilies); JudithStacey,
Unhitched: Love,Marriage, and Family ValuesfromWestHollywood to Western China
204-05(2011) [hereinafter Stacey,Unhitched](arguingmarriage shouldbe abolished
anddiverserangeoffamilies recognized becausemarriage isdecliningandfamilydiversity
dominates);see also MarkGoldfeder, It'sTimeto Reconsider Polygamy, CNN (Dec. 16,
2013,6:37 PM),http://cnn.com/2013/12/16/opinion/goldfeder-polygamy-laws (on file
withtheColumbia LawReview) (advocating ofpolygamy)
legalization . A Canadiancommis-
sionarguedforlegalprotection ofa broadrangeoffamilies. See LawComm'nofCan.,
BeyondConjugality: Recognizing and Supporting ClosePersonalAdultRelationships 1-7
based on a feministcritique of marriage as a patriarchal institutionthat

oppresses women. But the trend toward greater gender equality in the
formal status of husbands and wives has led recentlyto a more general-
ized claim that the elevated status of marriage demeans and unfairly
disadvantages other families.2These arguments have been influentialin
the successful movement toward recognition of the marriage rightsof
same-sex couples. They apply as well to the (as yet unsatisfied) demands
by scholars and advocates that other familycategories based on adult
relationships3- cohabiting couples and their children, voluntary kin
groups,4 polygamists, and multigenerational family groups raising
children- deserve the legal recognition enjoyed by married couples.5
The view thatheterosexual marriage should be an exclusive legal sta-
tus was grounded traditionally in conventional moral and religious
norms. Cohabiting, polygamous, and same-sex unions were considered
illicit and therefore undeserving of legal protection. As contemporary
moral norms have evolved, however, the historicaljustification for this
exclusive legal status has weakened.6 Recent surveys by the Pew
Foundation and other polling organizations show growing public
acceptance of cohabitation relationships as well as same-sex unions.7
(2001) (describing growing diversityoffamily formsin Canadaandarguing forextension

ofrights andobligations tothosefamilies) .
2. See SuzanneB. Goldberg, WhyMarriage?, in Marriage at theCrossroads: Law,
Policy, and the BraveNewWorldof Twenty-First-Century Families224, 235 (Marsha
Garrison & Elizabeth S. Scotteds.,2012) [hereinafter Marriage at theCrossroads] (argu-
ingthatargument against marriage as privileged legalstatushasshifted toonefocused on
harmto nonmarital families);see alsoStacey, Unhitched, supra note 1, at 8-12, 142-51
(advocating diversityandchallenging feminist oppositiontopolygamy) .
3. Weassumethata parentraising a childaloneconstitutes a family thatwarrants
societalsupport and resources, butourfocusis on families basedon adultrelationships:
Forourpurposes, "families"arerelationships thatwarrant a speciallegalstatus basedon
theirperceived socialvaluein satisfying dependency needs.See infratextaccompanying
notes37-43(explaining howfamilies filldependency needs);infranotes44-46(discuss-
of
ingqualities family relationships).
4. Voluntary kingroupsare oftendescribed as families ofchoice - family relation-
shipsdeveloped byparties withoutblood or legalties.
See Dawn O. Braithwaite etal.,Con-
structing Family: A Typology ofVoluntary Kin,27J.Soc. & Pers.Relationships 388,396-
402 (2010) (describing typesandfunctions ofvoluntary kinrelationships); see alsoinfra
PartIII.C.2.b(discussing legalchallenges voluntary kingroupsface).
5. See supranote1 (citing advocates whochallenge privileged status ofmarriage).
6. Fora discussion ofthistrend, seeMarvin v.Marvin, 557P.2d106,122(Cal.1976)
(holding contractsbetween cohabitants enforceable); seealsoLawrence v.Texas,539U.S.
558,578-79(2003) (striking downcriminal sodomy law).However, moralnormsagainst
illicit
sexualrelationships do notexplainwhynonconjugal relationships failedtoqualify as
family relationships.See infraPartIII.C.2 (describing how nonconjugal groupsface
uniquechallenges tolegalrecognition).
7. See,e.g.,PewResearch TheDeclineofMarriage
Ctr., andRiseofNewFamilies 7-
8 (2010) [hereinafter Pew ResearchCtr.,The Decline of Marriage],availableat
http://www.pewsocialtrends.Org/files/2010/l l/pew-social-trends-2010-families.pdf (on file
withtheColumbia LawReview) (describing changesin socialvaluesregarding thefamily,
including greateracceptance ofsame-sex marriage).
Some observers suggest that even polygamous relationships are becom-

ing "normalized," pointing to the popularity of the television series Big
Love and SisterWives?Although social acceptance of a broader range of
intimaterelationshipsneed not result in their recognition by the state as
legal families,it is clear that religious and moral sanctioning of nontradi-
tional families has diminished, lowering a barrier to societal recognition
of novel9familygroups.
The transformationin social attitudes creates the possibilityof a
legal regime that fosterspluralism, allowing individuals to pursue their
own vision of the good life in formingfamilyrelationships.On this view,
fundamental notions of autonomy and fairness support the claim that
the liberal state should offerindividuals the freedom to undertake what-
ever familyrelationships maximize their utilityand then should support
those families equally.10From a social-welfareperspective,however,per-
sonal satisfactionis not the sole basis for conferringfamilystatus.11Fami-
lies serve the criticallyimportantfunctionsof raising children, caring for
elderly persons, and otherwise satisfyingsociety's dependency needs.
Only relationships that fulfillthose functions adequately are likely to
attain legal status as families. But a puzzle remains: Why, in an era of
social tolerance, have novel familycategories,12withthe exception of gays
and lesbians seeking marriage rights,failed to attain legal recognition?
The answer to this question turnson the effectsof substantialuncertain-
ties thatimpede the pathwayto legal statusfornovel familyforms.
8. Adrienne D. Davis,Regulating Polygamy: Intimacy,DefaultRules,andBargaining

forEquality, 110Colum.L. Rev.1955,1979-80(2010) (suggesting howregulation based
on partnership modelcouldnormalize polygamous see Goldfeder,
relationships); supra
note1 (discussing publicattitudestoward pluralmarriage). BigLove , whichranforfive
seasonsfrom 2006to2011,wasnominated forEmmy andGoldenGlobeawards. BigLove:
Aboutthe Show,HBO, http://www.hbo.eom/big-love#/big-love/about/index.html (on
filewiththeColumbia LawReview) (lastvisitedFeb.4, 2015).Fora discussionofpolygamy,
seeinfra PartIII.C.l.
9. Weuse theterms and "novel"interchangeably,
"aspiring" recognizingthatsome
groups,suchas multigenerational families,are notnew.Bynovelfamilies, we meanto
designate groupsthatlack(andmight qualifyforandaspireto)legalstatus.
10. The autonomy normsuggests, forexample, thatthestatemight providea menu
offamily forms from whichindividuals couldchoosetheoptionbestsuitedtotheirneeds.
See ShaharLifshitz, Married AgainstTheirWill?Toward a Pluralist
RegulationofSpousal
Relationships, 66Wash.& Lee L. Rev.1565,1589-1601(2009)(arguing forfam-
generally
ilypluralism as intrinsicvalueand challenging imposition of mandatory obligationson
cohabitants); see alsoWilliam N. Eskridge Jr.,Family LawPluralism: The Guided-Choice
Regimeof Menus,DefaultRulesand Override Rules,100 Geo. L.J.1881,1890 (2012)
[hereinafter Eskridge,Family LawPluralism] (making similarargument).
11. See infra PartI.B (discussing
socialvalueoffamily relationships).
12. Our analysis of thepathto legalrecognition focuseson novelfamily categories
(notindividual novelfamilies) primarilybecausewe predict thisis thecourseregulators
arelikely to take.Aswithmarriage, oncea category is recognized,individuals
seekingto
register theirrelationships maybe subjectto administrative requirements but not to
inquiryaboutwhether theirrelationship
satisfies
thecriteria
discussed inthetext.
This Article develops an informal model to illustrate those uncer-

tainties as well as solutions to the possible obstacles they create. The
uncertaintiesbegin with questions the parties themselveswill have about
the viabilityof their novel relationship, but they also include public
ambivalence and the skepticism of lawmakers about the quality of the
novel group's relationships. The discrete challenges facing an aspiring
familyare a function of three conditions that we label novelty,social
isolation, and nonverifiability. We describe a hypotheticalgroup consist-
ing of two adult men and two adult women in a polyamorous relationship
who are initiallyuncertain whether their familyform can succeed in
maintaining a long-termcommitment to mutual care, interdependency,
and formal equality. In addition, even as a few such successful families
evolve, at firsttheyare likelyto be socially isolated, lacking the necessary
affiliationswitheach other to forma mutuallysupportivenormativecom-
munityand to pursue their goals of public acceptance and legal recogni-
tion. Finally,these aspiring familiesface regulatoryuncertainty:The state
will lack the informationneeded to verifythe acceptable functioningof
the novel class as a precondition to licensing individual families.
Uncertaintyin each of these dimensions contributes to a lack of
confidence (on the part of the aspiring familymembers themselves,the
larger social community,and, ultimately,the state) in the durabilityand
effectivenessof novel relationships to fulfillfamilyfunctionsadequately.
Yet, high levels of uncertaintyhave been resolved successfullyin other
contextsthrougha process of collaboration in which trustin the relation-
ship and confidence in a successfuloutcome develop incrementally.This
raises the question whether collaborative processes can also address the
conditions that impede the legal recognition of aspiring families. Here,
we draw on successful collaborations in commercial settingsto describe
in a stylizedmanner an evolutionary,multistageprocess through which
the novel group can obtain the rightsand obligations of legally recog-
nized families.13Initially,by formingcollaborative agreements,the parties
can build trustand confidence in both the qualityand durabilityof their
relationships.14Further,by affiliatingin networks,isolated novel families
can build a normative community that can provide support, facilitate
social awareness and acceptance, and overcome political obstacles to
attainingtheir legal objective.15Finally,through an iterativeprocess, the
as distinct
13. The stagesare presented but,as discussed infraPartIII.A, theyare
tooverlap
likely substantially.
14. See RonaldJ.Gilson,CharlesF. Sabel& RobertE. Scott,Braiding: The Interac-
tionofFormal andInformalContractinginTheory, andDoctrine,
Practice, 110Colum.L.
Rev.1377,1405-10(2010) [hereinafter Gilson,Sabel& Scott,Braiding](showing how
collaborativeagreementsbuild infra
trust); PartII.B.2 hypothetical
(suggesting polyga-
mousfamily couldbuildtrustthroughcollaborative
contracting).
15. SeeWalter W.Powell,Neither
Market norHierarchy: Network FormsofOrganiza-
Behav.295,323-26(1990) [hereinafter
tion,12 Res.Organizational Powell,Market nor
Hierarchy] (explaining of network
advantages formation); infraPartII.B.3 (discussing
challengespolygamous faceinseeking
families integrationintolargersocialcommunity) .
state can develop confidence in the capacities of the novel familycate-

goryto fulfillfamilyfunctions.16
The model sheds light on both the success and failure of two
contemporary aspiring family groups in securing legal protection for
their relationships. First,it illuminates the process through which same-
sex couples have attained marriage rights.17These couples seeking offi-
cial recognition of theirfamiliesfaced the uncertaintieswe describe, and
we argue that the movement toward marriage equality has roughly
tracked the evolutionaryprocess we model. In the early period, despite
public opprobrium, same-sex couples entered committed relationships
thatwere often maintained secretly.18 But the AIDS crisisand the lesbian
baby boom clarifiedthe vulnerability these familyrelationships,19
of spur-
ring the formation of a powerfulnormativecommunityand a networkof
advocacy groups aimed at gaining public acceptance and legal protec-
tion.20Legal recognition of familystatus has then proceeded through an
iterativeprocess as regulators and the public have gained confidence in
the quality of committed same-sex relationships.Second, the model sug-
gests why cohabitation relationships as a class have failed to attain
protected family status.21Here the sorting problem is acute because
cohabiting couples are a heterogeneous categorywith diverse goals and
expectations for theirrelationships.This heterogeneity,togetherwiththe
defining decision not to marry,impedes the creation of networksand
16. See RonaldJ.Gilson,CharlesF. Sabel8cRobertE. Scott,Contract and Innova-

tion:The Limited RoleofGeneralist Courtsin theEvolution ofNovelContractual Forms,
88 N.Y.U.L. Rev.170,176-78(2013) [hereinafter Gilson,Sabel& Scott,Contract and
Innovation] (describing taxonomy of contract innovation);infraPartII.B.4 (discussing
state's
difficulties
inverifyingfunctionalityofnovelfamily groups).
17. See infraPartIII.A(discussing thisprocess).
18. See William N. Eskridge,
Jr.,Democracy, Kulturkampf, and theApartheid ofthe
Closet,50 Vand. L. Rev. 419, 440-41 (1997) (arguinglaws discriminating against
homosexuals intheearlyperiod"reinforce [d] a regimeofthecloset").
19. GeorgeChauncey, WhyMarriage? The History ShapingToday'sDebateoverGay
Equality 96-111(2004) (arguingHIV/AIDSand assistedreproductive technology were
keyfactors inpushforsame-sex marriage).
20. Thismovement includedan effective strategyofsignaling to thebroadersociety
themarriage-like natureofgayand lesbianrelationships. See infraPartIII.A (describing
strategiesusedinsame-sex marriagemovement toappealtomajority).
21. See infraPartIII.B (discussing incomplete legalprotections forcohabitation
relationships).Despitelaw-reformefforts, see,e.g.,Marvin v.Marvin, 557P.2d106,113-14,
116,122-23(Cal. 1976) ("[A] contract betweennonmarital partners, evenifexpressly
madeincontemplation ofa common living arrangement, isinvalid onlyifsexualactsform
an inseparable partoftheconsideration fortheagreement."); Am.LawInst.,Principles of
theLawofFamily Dissolution:Analysis andRecommendations §§ 6.01-.06(2000) (creat-
ingandenforcing financialobligations between unmarried cohabitants) , cohabitantshave
struggled to establishclaimsforsupportand property rights, see, e.g., Friedman v.
Friedman, 24 Cal.Rptr.2d 892,901 (Ct.App.1993)(rejecting support claimofcohabitant
atendoftwenty-one-year .
relationship)
sends a confusing signal about the nature of cohabiting unions.22More-

over, the state has not found an effectivemeans of distinguishingthose
cohabiting partners who are committed to assuming long-termfamily
obligationsfromotherswho are not.
Finally,the model predicts the course (though not the success) of
other novel families seeking legal recognition. Individuals in polyamo-
rous, multigenerational,and voluntarykin groups may perform family
functionsand aspire to the legal status of established families.23In our
society,these groups are trulynovel in the sense that theyare not dyadic
unions modeled on marriage. They face the uncertainties of novelty,
isolation, and nonverifiabilityto varyingdegrees, and, in order to suc-
ceed, each group must overcome its own set of challenges. For example,
like same-sex couples, polyamorous groups are likelyto confrontpublic
hostility,but they also face the challenge of creating and enforcing
understandings among multiple parties sufficient to sustain well-
functioningfamilies.Voluntarykin groups are diverse and face the chal-
lenges created by heterogeneity.In each case, the model suggests the
impediments to legal recognition and how they might be overcome
throughthe various collaborative processes we describe.
At the outset,it may be helpful to make a fewclarifyingpoints. This
Article's approach is primarilydescriptive and predictive, rather than
normative.We recognize thatAmerican law places primaryresponsibility
for satisfyingdependency needs on privatefamiliesand assume that this
"neoliberal" approach is likelyto continue.24In our view,the assumption
of greater responsibilityfor dependency by the state would enhance
social welfare, but the Article does not directlyaddress this important
policy issue. We also assume that families based on marriage likelywill
continue to enjoy broad public support and a privilegedlegal status,and
to be viewed as embodying qualities associated with satisfactoryfamily
functioning.The goal is to explore under what conditions and through
what mechanisms other familycategories that embody those qualities
could attain a similarstatus.
The Article proceeds as follows. Part I describes demographic
changes in American families and in public attitudes over the past half
22. Somecohabitants arein marriage-likeunionswhileotherscohabitspecifically to

avoidfamily obligations.See infraPartIII.B (discussing differingfunctionsofcohabita-
tion).
23. See infraPartIII.C (exploring
challenges nondyadic families
encounter).
24. ButseeAnneL. Alstott, Neoliberalism in U.S. Family Law:Negative Libertyand
Markets
Laissez-Faire in theMinimal State3, 24-26(YaleLawSch.,PublicLawResearch
PaperNo. 511,2014),availableat http://ssrn.com/abstract=2459972 (on filewiththe
Columbia LawReview) neoliberal
(challenging approach) . See generallyMaxineEichner,
The Supportive State:Families,
Government, andAmerica's Ideals(2010) (argu-
Political
ingmodernliberaltheory discountsfamilies and offers too narrow a conceptionofthe
government's fordependency)
responsibility ; Martha Albertson Fineman, TheAutonomy
Myth: A Theoryof Dependency 53-54 (2004) (arguingforcollective for
responsibility
dependency) .
centurythat have created the possibilitythat other familyformscould be

accorded the legal status and resources that marriage enjoys. After
describing the useful social functionsof families,Part I argues that mar-
riage is likelyto continue to qualifyfor special treatmentbut that other
groups successfullyperformingfamilyfunctionscan also aspire to similar
recognition.
Part II develops an informalmodel that describes predictable obsta-
cles to legal recognition and a multistagecollaborative process by which
a hypotheticalaspiring familymightovercome these obstacles. Successful
collaborations mature into contracts for mutual care and support with
enforceable obligations that define relationshipsin termsof the mainte-
nance of familyfunctions.As these commitmentsbecome widelyobserva-
ble, a collaborative networkformsamong aspiringfamilies:A set of emer-
ging social norms reinforcesthe stabilityof those relationships,and the
families and their leaders signal the quality of their relationships to the
larger society,increasing awareness and acceptance. Ultimately,the state
verifiesthat familyfunctionsare performed adequately and extends for-
mal recognition through a collaborative process that certifiesthe novel
familycategory.
Part III firstshows that the still-evolvingprocess that has led a grow-
ing number of states to grant marriage rightsto gays and lesbians is con-
sistentwiththe predictions of the collaborative approach. It then turnsto
cohabitation and explains how the model developed in Part II sheds light
on the failure of cohabitants to gain substantiallegal protection. Finally,
Part III examines the unique uncertainties facing other novel families,
including polygamous and voluntary kin relationships, and brieflyad-
dresses the question of legal recognition for groups assuming more lim-
ited familyobligations. Part III concludes that collaborative processes
designed to build confidence and trustbetween the familymembers and
with others (including the state) offerthese and other aspiring families
the means to resolve uncertaintyand ultimatelyattain legal recognition.
I. Marriage and the Special Legal Status of Families
As the public has increasinglycome to accept nonmarital families,

the claim of marriage criticsthat the law should recognize and support a
broader range of familieshas become more compelling. This Part briefly
sketches these social changes. It then explores the key social functionsof
families,as well as the qualities of relationships that performthese func-
tions well and are likelyto qualifyfor legal recognition. It examines the
privileges,benefits,and obligations that currentlyare assigned to mar-
riage and predicts that, although many contemporary marriages fall
short,marriage as a categoryis likelyto continue to provide the template
for well-functioningfamilies for the public and lawmakers alike. The
analysis also leads us to conclude that other relationship categories that
function satisfactorilyto fulfillfamilyfunctions qualify to receive the

same level of support and societal resources.
A. FamilyChangeand theEvolutionofSocialAttitudes
The question that thisArticleaddresses- under what conditions and
-
throughwhat means might the law recognize novel families is the sub-
ject of serious discussion only because of dramatic changes in family
demographics and social attitudes over the past half century.Until the
1960s, both the law and entrenched social norms prescribed heterosex-
ual marriage defined by ascribed gender roles as the only acceptable fam-
ily form.25Much has changed since that time. To begin, the proportion
of families based on marriage has declined. A recent Pew surveyfound
that barelyfifty percent of American adults were married, the lowest rate
ever reported.26Meanwhile, the percentage of couples livingtogetherin
nonmaritalunions has increased steadily,as have the number of children
born to unmarried mothers, often cohabiting (at birth) with their chil-
dren's fathers.27As a result of the increase in nonmarital families and
their relative instability(as well as higher divorce rates among married
couples than in earlier generations), more children live in families that
include their mothers,new partners,and step and half siblings. Gay and
lesbian couples also live together and raise children in a way that was
uncommon fiftyyears ago. And as the traditional nuclear familyhas
become less prevalent,multigenerationalgroups, in which grandparents
assistwithchildcare and adult children care for theirparents, have taken
on new importance.28Less often highlighted but also a part of the pic-
ture of familydiversityin the earlytwenty-first centuryare other noncon-
jugal families made up of relativesor groups of unrelated adults, some-
timescalled voluntarykin.29
25. See generallyMarshaGarrison 8cElizabethS. Scott,LegalRegulation ofTwenty-

FirstCentury Families,in Marriage at theCrossroads, supra note 2, at 303 (describing
initial
prevalence andrecent declineoffamilies basedon marriage).
26. PewResearch Ctr.,BarelyHalfofU.S.Adults AreMarried - A NewLow(2011),
availableat http://www.pewsocialtrends.org/files/2011/12/Marriage-Decline.pdf (on file
withtheColumbia LawReview) .
27. Themostcomprehensive research on childreninunmarried families istheongo-
inglongitudinal FragileFamilies Study,conducted bySaraMcLanahan andhercolleagues.
See,e.g.,SaraMcLanahan 8cChristine Percheski, Family Structure andtheReproduction
ofInequality, 34 Ann.Rev.Soc. 257,258 (2008) (reporting fiftypercentof nonmarital
parents livedtogether at child'sbirth);SaraMcLanahan 8cIrwinGarfinkel, FragileFami-
lies:Debates,FactsandSolutions, inMarriage at theCrossroads, supranote2,at 142,151
(describing study).
28. The SupremeCourthasacknowledged theimportance ofgrandparents in chil-
dren'slivesas familieshavechanged.See Troxelv.Granville, 530 U.S. 57,70-73(2000)
(holding parents'objectiontograndparent mustbe givensubstantial
visitation weightbut
declining toholdgrandparent-visitation statuteunconstitutional).
29. See NatalieAngier,The Changing American Family, N.Y.Times(Nov.25,2013),
http://www.nytimes.com/2013/ll/26/health/families.html (on filewiththe Columbia
The factors contributingto these demographic changes have been

much discussed30and are not of central importance to our analysis.What
is important is the generally tolerant public response to these social
developments. Recent polls indicate that most adults in this countryhave
positive or at least neutral viewsabout a broad range of families,express-
ing accepting attitudes toward nonmarital couples with (and without)
children and same-sex couples.31 In many states, a majorityof citizens
endorse same-sex marriage.32Younger adults are more accepting of non-
maritalfamiliesthan their elders,33suggestingthat attitudesmay become
increasinglytolerant over time. In a 2010 poll, only unmarried women
having children withouta partnermet withrespondents' disapproval.34
This account oversimplifiessomewhat how the public views novel
intimate relationships.To be sure, tolerance does not extend to all rela-
tionships. Polygamy,for example, continues to be subject to public cen-
sure; fundamentalist Mormons and other religious groups practicing
polygamy have generally been viewed as pathological, arousing public
alarm about the sexual coercion of young girls.35Certainlyless controver-
sial, but also less familiar,are nonconjugal voluntarykin groups, which
LawReview) (discussing ofmodern

diversity American families);seealsoBraithwaite etal.,
supranote4,at396-402(studying voluntarykin).
30. See,e.g.,Angier, supranote29 (positing anddiscussing severalfactors).Contrib-
utingfactors tofamilychangeincludethesexualrevolution, theavailability
ofbirthcon-
trol,thedeclineinreligious observance,thewomen's equalitymovement, etc.See id.
31. See PewResearch The DeclineofMarriage,
Ctr., supra note7, at 40-69(present-
ingresultsof severalsurveys demonstratingmorepositive responsetowardnonmarital
couples).
32. See Changing Attitudeson GayMarriage, PewResearchCtr.(Sept.24, 2014),
http://www.pewforum.org/2014/09/24/graphics-slideshow-changing-attitudes-on-gay
riage/[hereinafter PewResearch Ctr.,ChangingAttitudes] (on filewiththeColumbia Law
Review)(reporting resultsof poll showing thatnationalaverageof thosewhosupport
same-sex marriage is fifty-twopercent).A largenumberof statesrecognizesame-sex
marriage. See SameSex Marriage Laws,Nat'lConference of StateLegislatures, http://
www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx (on filewiththe
Columbia LawReview) (lastupdatedJan.19,2015) (listing thirty-sixstatesand District of
Columbia as recognizing same-sexmarriage).
33. PewResearch Ctr.,Changing supranote32.
Attitudes,
34. See PewResearch Ctr.,The DeclineofMarriage, supranote7, at 56 (reporting
resultsofpollshowing Americans expressmostconcernaboutrisein numberofsingle
womenhavingchildren and "arefarlessconcerned" aboutunmarried gayand lesbian
couplesraising children).
35. A recentGalluppoll foundthateighty-three percentof thosesurveyed found
polygamy to be morally wrong.See FrankNewport & IgorHimelfarb, In U.S.,Record-
HighSayGay,LesbianRelations Morally OK,Gallup(May20,2013),http://www.gallup.
com/poll/ 162689/record-high-say-gay-lesbian-relations-morally.aspx (on filewiththe
Columbia LawReview). Elizabeth Emensdescribes thehostilityto polygamy generated by
opponentsto gaymarriage. See ElizabethF. Emens,Monogamy's Law: Compulsory
Monogamy and Polyamorous Existence,29 N.Y.U.Rev.L. & Soc. Change277,277-84
(2004) [hereinafter Emens,Monogamy's Law].Fordiscussion ofpublicattitudes toward
polygamy, seeinfraPartIII.C.l.
thus far have attracted little public or political attention.36Nonetheless,

the recent demographic changes, together with more accepting public
attitudestowarda range of families,raise the possibilitythat other groups
besides married couples mightgain legal recognition as families.
B. The QualitiesofWell-Functioning
Families
Given that our project is to explore whether novel familycategories
mightattainlegal recognition,we must answer a thresholdquestion: Why
are families so special, and what are the qualities of adult relationships
thatare likelyto functionadequately as families?
In contemporary society, a broad public consensus supports the
proposition that (at least some) family relationships have substantial
social value and should enjoy a special legal status. The reasons for this
consensus are straightforward. As many scholars have noted, families do
the importantwork of satisfyingsociety's dependency needs.37 Families
care for dependent children, prepare them for citizenship,and educate
them to be productive members of society.38Families also assume
responsibilityfor responding to members' physical and emotional needs
created by illnesses, disabilities, old age, and the ordinary stresses of
life.39Not everyfamilyprovides necessaryor adequate care to its depend-
ent members, of course, but collectivelyfamiliesperformextraordinarily
valuable social functions. The state assists families in performingthese
functionsby providingkey services and financial subsidies,40by recogniz-
36. Scholars and law-reform groupshaveshownsomeinterest. See LawComm'nof

Can.,supranote1, at 4-7 (discussing voluntary kingroups);see also infraPartIII.C.2
(describingnonconjugal aspiring .
families)
37. See Fineman, Neutered Mother, supranote1,at 161-64("Thenatural family is
wedependon toraisethechildren
thesocialinstitution andcarefortheill,theneedy, the
dependent inourculture.").
38. See generally ElizabethS. Scott,ParentalAutonomy and Children's
Welfare, 11
Wm.8cMaryBillRts.J. 1071(2003) (discussing legaltreatment ofintactand dissolving
In an earlierarticle,
families). wedescribed thevaluablesocietalserviceparents provide
andarguedthatautonomy andstatesupport ofparenting is a quidproquo forparents'
assuming forraising
responsibilities and educating theirchildren- functionsthatwould
otherwise be bornecollectively. See ElizabethS. Scott& RobertE. Scott,Parentsas
81 Va. L. Rev.2401,2453-56(1995) [hereinafter
Fiduciaries, Scott8cScott,Parentsas
Fiduciaries];cf. Linda C. McClain,Care as a PublicValue: LinkingResponsibility,
Resources,and Republicanism, 76 Chi.-Kent L. Rev.1673,1677(2001) ("[G]overnment
oughtto support parents'effortsto nurtureand provide fortheirchildren,justas work-
placesoughtto be more 'parent-friendly,' betterto facilitateparentsbalancingthe
demands of'work' and'family.'").
39. In somefamilies, ofcourse,adultmembers mayundertake rolesin
specialized
performing these functions,with some performing directcaretakingservicesand others
providingfinancialresourcesthatindirectlysupport caretaking.
40. Government servicesthatassistfamiliesin raisingchildrenand caringfor
dependency includefreepublicschools,subsidized daycare,Temporary Assistancefor
NeedyFamilies subsidies,nutrition programs,Medicaid,and social-securityspousaland
survivorbenefits. JanetM. Currie,
See generally The Invisible Net:Protecting
Safety the
ing intimate family bonds, and by defining family rights and obliga-
tions.41Family members performingtheir roles responsiblysave societal
resources that otherwisewould be expended in providing adequate care
for children and for elderlyand disabled persons.42Even if the state were
to assume a far greater responsibilityfor satisfyingsociety's dependency
needs as many reformershave advocated, familieswould continue to play
a criticalrole.43
Many individuals and groups may assume the burden of caring for
others,but not all will attain legal recognition as families.Biological rela-
tionship is neither a necessary nor a sufficientcondition for protected
legal status.44The nephew who resides with his aunt and uncle while
attending college and assistswithbabysittingis not in a "family"relation-
ship that is acknowledged by law- though his co-residents are.45What
then are the qualities that identifyadult affiliationsas familyrelation-
ships? In our view,a contemporaryfamilythat is based on adult relation-
ships embodies several key attributes:a demonstrated commitment to a
long-termemotionallyintimateaffiliationin which the parties usuallylive
togetherin a relationship of relativeequality; the assumption of responsi-
bilityfor mutual care (and the care of children or other dependent fam-
ily members); financial interdependence; and the understanding that
members' welfare is prioritized above that of others.46Family bonds are
built on trustthat enables each member to relyon others to fulfilltheir
roles and to "be there" in good times and bad. The nephew in the exam-
Nation'sPoor Childrenand Families(2006) (discussing safety-netprograms); Clare

Huntington, FailuretoFlourish: HowLawUndermines Family Relationships 55-80(2014)
(critiquing currentpolicyas inadequateand proposing howlaw could fullysupport
.
families)
41. Thestaterecognizes family bondsinguardianship law,in thedutytorescuechil-
drenandspouses, andinlawsgoverning Theregulation
intestacy. ofproperty division
and
supportduringdivorcedefinesfinancialspousalobligations. See infranotes52-53
(elaborating on roleofdivorce regulation).
42. SeeJennifer M. Collins,EthanJ.Leib& Dan Markel, Punishing Family Status,88
B.U.L. Rev.1327,1355-56(2008)(describing howspeciallegalprotections offamiliesare
compensation forservicesfamiliesprovide,thereby relieving stateof theircost); cf.
Fineman, Neutered Mother, supranote1,at230-33(arguing government shouldsupport
and compensate familiesfortheircriticalrolein caringfordependency needs);Scott&
Parents
Scott, as Fiduciaries,
supranote38,at2417-18(describing quidproquo ofparen-
talrightsas compensation forresponsibility
overdependents).
43. See supranotes38-39andaccompanying text(describing extenttowhichfamily
members careforeachother) .
44. See MichaelH. v. GeraldD., 491 U.S. 110,123-27,131-32(1989) (upholding
statutedenying parentalrights to unmarried father
biological ofchildbornto married
couple).
45. Similarly, threeyoung-adult cousinswouldlikely notbe eligibleto renta house
zonedfor"single-family" residences.
46. Someof thesetraits mightbe contested, butthisdescription is consistentwith
conventional understandings. Courtsevaluatingwhether de factorelationships constitute
familyrelationships pointto thesequalities.See infranotes81,326 (discussing de facto
familyrelationships).
pie is not in a familyrelationshipwithhis aunt and uncle because the co-

residency arrangement is time limited as are any mutual obligations of
the parties. The core qualities we have identified- a demonstrated,long-
term commitment and the assumption of mutual care and financial
- increase the likelihood that
responsibility familyrelationships will be
stable and sustainable and can be relied on to fulfillthe importantfunc-
tions of satisfyingdependency needs.
C. Marriageas an EnduringFamilyForm
Although it would seem that other groups that embody the qualities
of well-functioningfamilies might qualify for legal recognition and
protection, marriage continues to be the sole legal familyaccorded full
legal protection. This section describes the legal attributesof marriage
that aspiring families do not (but might wish to) enjoy. It then briefly
reviews the critiques of contemporary law by scholars and advocates,
many of whom challenge the continued utilityof marriage. We conclude
that despite its deficiencies,marriage seems likelyto retain its protected
status;this is so because lawmakersand the public continue to view mar-
riage as a relativelywell-functioning
familyform,a viewwithsome empiri-
cal support.
1. Contemporary Marriage as a PrivilegedStatus. - Marriage is a
relationship defined by legal rightsand obligations that do not apply to
other families.47Marriage confers tangible financial benefits and privi-
leges, including social-securitysurvivor benefits, estate-tax exclusions,
and health-insurancebenefitsfor governmentemployees, as well as the
opportunityto protect property from creditors.48Married couples are
also granted rightsand privileges based on the presumed closeness of
theirrelationship,such as surrogatedecisionmaking authorityand inher-
47. The GeneralAccounting Officefamously reportedmorethanone thousand

referencestomaritalstatusin theUnitedStatesCode,manyofwhichconferred benefits
on married couplesthatotherfamilies do notenjoy.See LetterfromBarry R. Bedrick,
Assoc.Gen.Counsel,U.S. Gen.Accounting to Henry
Office, J.Hyde,Chairman, Comm.
on theJudiciary,
HouseofRepresentatives, Regarding DefenseofMarriage Act1-2 (Jan.
31, 1997), availableat http://www.gao.gov/assets/230/223674.pdf(on filewiththe
ColumbiaLawReview).
48. Perhapsthemostcomprehensive accountshavebeenoffered byadvocates seek-
ingmarriage forgayandlesbiancouplesandbycourts
rights holding thattheexclusion of
same-sex couplesfrommarriage violatesthe principleof equal protection.See, e.g.,
Varnum v.Brien,763N.W.2d862,902 n.28(Iowa2009) (cataloguing maritalrightsand
underIowalaw);Goodridge
privileges v.Dep'tofPub.Health,798 N.E.2d941,955-57
(Mass.2003) (listingsameunderMassachusetts law);see alsoJesseDukeminier et al.,
Property 391 (8th ed. 2014) (discussing dimensions
creditor-protection of property
acquiredbyspousesas tenants NicoleC. Berg,Note,Designated
byentireties); Beneficiary
Agreements: A Stepin theRightDirection forUnmarried Couples,2011U. 111. L. Rev.
267,295-301(discussing marital
benefits).
itance rights.49Further,as advocates for LGBT rightshave argued, mar-

riage as a legally privileged familyform carries intangible value beyond
its tangible benefits.50Married couples also have legal obligations to one
another that are not imposed on members of nonmarital families.By vir-
tue of marital statusspouses cannot unilaterallydisinheritone another,51
and under property-distribution laws applied at divorce52each spouse has
a right to share in earnings and propertyacquired by the other during
the marriage.53
To be sure, nonmarital families are not deprived of all legal and
constitutionalrights.54But these groups are disadvantaged as compared
to families based on marriage in many ways that can undermine their
functioning.Adults in self-identifiedfamilies can contractuallyassume
financial obligations to one another, but otherwise no familial rightsor
49. See Goodridge, 798 N.E.2dat 955-57(listing rightsgranted bymarriage under

Massachusettslaw).
50. In statesthatrecognized status
civil-union forgaycouples(replicating mostmari-
talrights),
theemphasis shifted fromtangible rights to thedignitary harmofexclusion.
See,e.g.,Perryv.Schwarzenegger, 704F. Supp.2d 921,993-94(N.D. Cal.2010) (finding
Proposition 8 prohibiting same-sexmarriageunconstitutional, despiteavailability of
domestic partnerships), aff'dsub nom.Perry v. Brown, 671 F.3d1052 (9thCir.2012),
vacatedandremanded subnom.Hollingsworth v.Perry, 133S. Ct.2652(2013).
51. See Dukeminier et al.,supranote48,at 407-10(noting"allcommonlawprop-
ertystatesexceptGeorgiahaveelective-share statutes," bywhich"surviving spousecan
renounce the[decedent spouse's]will,ifany,andelecttotakea statutory share"ofdece-
dentspouse'sproperty).
52. Fora discussion ofmarital-property rights anddivision on divorce,see generally
IraEllmanetal.,Family Law:Cases,Texts, Problems 317-50(5thed. 2010).
53. Wage-earning spousesmayalso be subjectto a dutyto payalimony. Id. at 420.
Spouseshavea dutyto rescueone anotherundertortlaw,whereas a nonmarital family
member facesno liabilityforallowing hislovedone tostarve. See Collins,Leib& Markel,
supranote42, at 1335(discussing specialliability of parents and spousesforfailureto
rescue).
54. Mostimportantly, theparent-child relationship receives substantial
legalprotec-
tion,regardlessofthemarital status oftheparents. See Wisconsin v.Yoder,406U.S. 205,
235-36(1972) (finding statecannotapplymandatory-attendance lawtoAmishchildren);
Piercev.Soc'yofSisters, 268U.S. 510,534-35(1925) (holding parentshaveconstitution-
allyprotectedlibertyinterest toguidechildren's education); Meyer v.Nebraska, 262U.S.
390,400 (1923) (same).The Courthasalsostruck downlawsdiscriminating against chil-
drenborntounmarried mothers. See Levyv.Louisiana, 391U.S. 68,70,72 (1969) (strik-
ing downstatuteprohibiting childrenbornto unmarried mothers fromsuingunder
state'swrongful-deathstatute). Unmarried parents receive lessprotectionthantheirmar-
ried counterparts. See, e.g., MichaelH. v. GeraldD., 491 U.S. 110, 131-32 (1989)
(upholdingCalifornia statutecreatingpresumption of legitimacy forchildborn to
married mother against child'sbiological fatherseeking access).
Courts,including theSupreme Court,sometimes haveaccordedlegalprotections
to othernonmarital families. See Moorev. Cityof E. Cleveland, 431 U.S. 494,503-06
(1977) (findingordinance definition offamily thatprohibited grandson fromliving with
grandparent unconstitutional underDue ProcessClause);see alsoEisenstadt v.Baird,405
U.S.438,443 (1972) (holding statelawprohibiting unmarried persons fromhaving access
tocontraceptivesviolated Fourteenth Amendment) .
duties inhere in their relationships.55Moreover, these relationships

receive little support or recognition from the state; they do not receive
social-securityspousal benefits,estate-taxadvantages, inheritance rights,
or (usually) health-insurance benefits.56Further,although the parent-
child relationshipreceives substantiallegal protection,57the relationship
betweenunmarried parents does not.58 The dependent parent has no
claim to alimony or a share of her partner's propertyif the relationship
ends, even though these financial awards redound to the benefit of the
children. Unmarried parents also have no inheritance rights;children in
nonmarital families may have to share a parent's estate with a more dis-
tantrelativenot livingin the household.
Scholars and law-reformadvocates have sharply criticized the ele-
vated legal statusof traditionalmarriage and argued for legal protection
of other familyrelationships.The LGBT marriage-equalitymovement has
offered the most prominent and successful challenge, of course.59But
other reformershave argued that a broad range of nonmarital families-
including single-parentfamilies,unmarried couples and their children,
and adults in nonconjugal relationships- should be accorded legal parity
withmarriage.60Finally,a fewscholars have explored the social and legal
55. Marvinv. Marvin, 557 P.2d 106,116 (Cal. 1976) (holdingcontracts between
cohabitants enforceable).
56. It is notsurprisingthatactivistsforsame-sex couples'relationship rightsmobi-
lizedinresponse totheAIDScrisis: The experience ofexclusion from family healthbene-
fits,
medical-proxy decisionmaking authority,andguardianship priorityunderscored that
evenlong-term, committed gayandlesbianrelationships received no legalprotection. See
infraPartIII.A.2(describing actionmotivated
collective byAIDS crisis).Indeed,until
recently,theseunionswerelegally prohibited in manystates.Cf.Lawrence v.Texas,539
U.S.558,578-79(2003)(finding criminal antisodomy statuteunconstitutional as violation
ofsame-sex consentingadults'right ofprivacy).
57. See supranote54 (discussing protection ofparent-child relationship). Further,
manygovernment programs aimto provide services to children ofunmarried parentsin
poorfamilies. Medicaid,theStateChildren's HealthInsurance Program, and theWork
Incentive program arefederallyfunded. Manystatesalsohavechild-care programs. Fora
comprehensive discussionofsafety-netprograms, seegenerally Currie, supranote40.
58. See MerleH. Weiner, Caregiver Payments and theObligation to GiveCareor
Share,59 Vili.L. Rev.135,142-52,177-212(2014) (explaining fewfinancial obligations
runbetween unmarried parentsto detriment of caregivers and arguingforincreasing
thoseobligations forbothunmarried andmarried parents).
59. See generally William N. Eskridge,Jr.,The Case forSame-Sex Marriage 62-74
(1996) (arguingmarriage accessis worthpursuing forsame-sex couples);ThomasB.
Stoddard, WhyGayPeopleShouldSeektheRightto Marry, Out/Look, Fall 1989,at 9
(arguing gay-rightsmovement shouldseekfulllegalrecognition forsame-sex marriage).
Butsee Katherine M. Franke, Longing forLoving,, 76 Fordham L. Rev.2685,2689(2008)
[hereinafter Franke,Longing](arguing, afterLawrence , gaysandlesbiansshould
v. Texas
fightto protect unregulated territoryforrelationships between marriage and criminality,
an areaendangered bymarriage). Fora breakdown ofstatelaws,see Nat'lConference of
StateLegislatures,supranote32.
60. See NancyD. Polikoff, Making Marriage Matter Less:TheALI Domestic Partner
Principles Are One Step in the Right Direction, 2004 U. Chi. Legal F. 353, 356, 367
(expressing approvalof ALI Principles on thisground).MarthaFinemanandJudith
response to polyamoryand tackled the challenge of designing a regula-

toryregime forpolygamous relationships.61
The contemporary critique has shifted somewhat from the well-
established feministargument that marriage is a hierarchical,patriarchal
institutionthat oppresses women to a broader challenge based on princi-
ples of liberty,equity,and equality.62Many criticstoday focus primarilyon
the deficiencies of marriage63and on the harm to nonmarital familiesof
privilegingmarriage and withholdingits benefitsfromother groups that
fulfill family functions.64Other scholars argue that the liberal state
should support a broad range of familyoptions, allowing individuals to
pursue theirconception of the good life.65
Staceyarguefortheabolition ofmarriage. See supranote1 (citingreformers whohave

calledforabolitionof marriage); see also LawComm'nof Can.,supranote1, at 6-7
(arguingCanada shouldprovidegreaterrecognition of and supportfornonmarital
relationships).
61. See generally Davis,supranote8, at 1998-2032(proposing partnership regula-
torymodel); ElizabethCannon Lesher,Comment,Protecting Poly:Applyingthe
Fourteenth Amendment to theNonmonogamous, 22 Tul.J.L.& Sexuality 127,140-44
(2013)(developing substantive dueprocessargument forlegalprotection ofpolyamorous
relationships). ElizabethEmensprobesthe hostility to polyamorous and
relationships
describes thenonpathological natureoftheserelationships. See Emens,Monogamy's Law,
supranote35,at287-97,300-20.
62. Of course,somefeminists continueto rejectmarriage as harmful to women,
emphasizing thatmarried women'scaretaker-homemaker roleoftenleavesthemfinan-
ciallyvulnerable upondivorce. See Weiner, supranote58,at 135-37(discussing financial
dangers ofmarriage anddivorce). Butsee Goldberg, supranote2, at 233-34(pointing to
legalreforms thathavecreated formal genderequality inmarriage tochallenge argument
thatmarriage bygayswouldtransform theinstitution).
63. Judith for
Stacey, example, derides marriage as a flawedandobsoleteinstitution
in an erain whichalmosthalfofmarriages dissolve and manyspouses(mostly husbands
on heraccount)failtoliveup totheirvows.SeeJudith Stacey,Forsaking No Others: Com-
ingto TermswithFamily in Marriage
Diversity, at theCrossroads, supranote2, at 201,
201-08.
64. See generally Fineman, Neutered Mother, supranote1,at 226-30(arguing mar-
riageis keymechanism throughwhichdependency is privatizedin Americanlaw);
Polikoff,BeyondMarriage, supranote1,at98-109(arguing "focusing on solutionsother
thanmarriage . . . willimprove thelivesofsame-sex couplesas wellas LGBTpeoplenotin
coupledrelationships, and theirchildren"). Polikoff's bookcomprehensively arguesfor
protection ofall families anddocuments theharmstononmarital families underthecur-
rentregime. See id. at 83-109,123-45.Professor Polikoff argueselsewhere thatthelegal
benefits associated withmarriage, suchas family healthinsurance, survivor
social-security
benefits,andinheritance rights,arejustas important tothewelfare ofunmarried gayand
straightcouples,siblings, adultchildren livingwithelderly parents,and othergroupsliv-
inginlong-term relationships. See NancyD. Polikoff, EndingMarriage as WeKnowIt,32
Hofstra L. Rev.201,225-32(2003) (arguingunduefocuson marriage excludesother
deserving relationships from important legalprotections) .
65. See Eskridge, Family LawPluralism, supranote10,at 1898-1901(arguing for
utilitarian
approach ofguidedchoicetofamily formation thatsupportsindividualflourish-
ingandvaluetofamily members); seealsoLifshitz, supranote10,at 1589-95(arguing for
family pluralism as intrinsic valueandchallenging imposition ofmandatory on
obligations
cohabitants).
A general theme emerges from these critiques: A wide range of

diverse familiesfunction (at least) as well as different-sex
marriage, and
the exclusive legal privilegingof marriage can no longer be justified.The
various critiques accept the social value of familiesbut challenge the
notion that traditional marriage warrants the special status that it has
long enjoyed.66
2. The DurabilityofMarriageas a FamilyForm.- Even though fewer
couples choose marriage today,67and many contemporarymarriages do
not embody qualities of stabilityand mutual care,68substantialevidence
supports that marriage continues to be widely regarded as a well-
functioningfamilyform. Public attitudes toward marriage are positive;
most individuals,even in nonmarital families,aspire to marriage.69More-
66. A fewscholars havequestioned thelaw'sdeferential treatment offamilies. Mary

AnneCase, forexample,challengesthe assumption thatemployers, employees, and
taxpayers shouldbe responsible forsubstantiallysubsidizing parents intheirroleofraising
theirchildren. See Mary AnneCase,HowHightheApplePie?A FewTroubling Questions
AboutWhere, Why, andHowtheBurdenofCareforChildren ShouldBe Shifted, 76 Chi.-
KentL. Rev1753,1754-57(2001).Otherscholars havechallenged thebenefits offamily
statusin thecriminal-justicesystem,criticizingtestimonial privilege, sentence reductions,
and effective immunity fromprosecution forharboring a family member. See,e.g.,Dan
Markel, Jennifer M. Collins8cEthanJ.Leib,Criminal Justice andtheChallenge ofFamily
Ties,2007U. 111. L. Rev.1147,1190-1200 (raising thischallenge).
67. A 2013survey reportedthatforthefirst timefewer thanfifty percent ofhouse-
holdsarebasedon marriage. SabrinaTavernise, Married CouplesAreNo Longera Major-
ity,CensusFinds,N.Y.Times(May26,2011),http://www.nytimes.com/2011/05/26/us/
26marry.html (onfilewiththeColumbia LawReview) (reporting results ofsurvey).
68. Therelatively highdivorce ratein thiscountry varies substantiallyon thebasisof
class;ithasdeclinedsubstantially sincethemid-1980s foreducatedcouplesbutremains
highforworking-class couples.SeeJuneCarbone8cNaomiCahn,Marriage Markets: How
Inequality Is Remaking theAmerican Family 15-16(2014) ("[B]y2004,thedivorce rates
ofcollegegraduates werebackdowntowhatthey werein 1965.... In themeantime, the
divorce ratesofthelesswelleducatedreachedall-time highs."). Spousescanavoidfinan-
cial interdependence through separatebankaccountsand (in manystates)property
ownership and premarital agreements. See infranote 76 (discussing marital-property
ownership inequitable distribution
(versus community property) .
jurisdictions)
69. According to a 2013Galluppoll,seventy-eight of
percent respondents whohad
neverbeen married wantedto getmarried. Marriage, Gallup,http://www.gallup.com/
poll/117328/marriage.aspx (on filewiththe Columbia LawReview)(lastvisitedFeb. 4,
2015).Whenaskedwhytheywerenotmarried at thepresenttime,mostrespondents
indicated theyhadnotfoundtheright person, theyweretooyoungor notready, or they
werewaiting becauseoffinancial considerations. Id. Socialscientists findthatmarriage has
becomeidealizedas a marker offinancial and personalsuccessand is viewedas outof
reachbymanypoorand working-class individuals. Kathryn Edin has foundthatboth
womenandmenholdthisview.See Kathryn Edin& Timothy J.Nelson,DoingtheBestI
Can:Fatherhood intheInnerCity90-98(2013)(noting desires ofinner-citymentomarry
onlyaftertheirlivesmeetcertain conditions); Kathryn Edin8cMariaKefalas, Promises I
CanKeep:WhyPoorWomenPutMotherhood BeforeMarriage 104-37(2005)(discussing
working-class parents whoaspiretofulfill unlikely economic andeducational goalsbefore
marrying). For additionaldiscussion of the idealization of marriage, see Andrew J.
Cherlin, The Growing of Two-Parent
Diversity Families: Challenges forFamilyLaw,in
Marriage attheCrossroads, supranote2,at290(" [RJomantically involvedcoupleswhodo
over,courts and legislatureshave often invoked marriage as the template

for evaluating the claims of parties in nonmarital familyrelationships
that their affiliationsshould qualifyfor legal benefits.70It is not surpris-
ing perhaps that advocates seeking legal protection for these relation-
ships emphasize theirsimilarityto marriage.71
The empirical evidence also indicates that families based on mar-
riage, even today,tend to embody the qualities earlier identifiedas con-
tributingto satisfactoryfamilyfunctioning.In general, spouses are much
more likelyto share income and propertythan are cohabiting couples.72
Moreover, despite the relativelyhigh divorce rate, marriages tend to be
more stable than informal familyrelationships; that stabilitytranslates
into advantages for children in educational attainment, social adjust-
notseethepossibility ofa strong financialfooting aremorelikely todecidetohavea child

or acceptan unplanned pregnancy thanto postponehaving children untiltheyhavethe
meanstomarry."); McLanahan & Garfinkel, supranote27,at 151 (notingdoubtsamong
low-income womenregarding tomaintain
ability stablemarriages) .
70. Fora discussion oftheuseofmarriage as a template forfamily relationshipsboth
bylawmakers and advocatesin the marriage-equality movement, see infraPartIII.A.
Courtshavealsocompared relationships tomarriage in evaluating whether theyqualify as
"family" relationships.See Braschi v.StahlAssoes.Co.,543N.E.2d49,53-54(N.Y.1989)
(describing same-sexrelationship withmaritaltraitsof duration,commitment, and
interdependence as family relationship).
71. The priority assignedbyLGBT-rights advocates to attaining marriage rights for
same-sex couplessuggests thecontinued importance of marriage. See infraPartIII.A
(discussing marriage-equality movement and advocacy strategy). Thispriority has been
controversial in the gaycommunity. Paula Ettelbrick and ThomasStoddardfamously
debatedwhether marriage shouldbe a keypolitical goalofthegaycommunity. Compare
PaulaL. Ettelbrick, SinceWhenIs Marriage a PathtoLiberation?, Out/Look, Fall1989,at
9, 14 (" [Mļaking legalmarriage forlesbianandgaycouplesa priority wouldsetan agenda
ofgaining rightsfora few,butwoulddo nothing tocorrect thepowerimbalances between
thosewhoaremarried (whether gayorstraight) andthosewhoarenot."),withStoddard,
supranote59, at 10 ("[T]he gayrightsmovement shouldaggressively seekfulllegal
recognition forsame-sex marriages."). Foradditional discussion oftheeffects ofprioritiz-
ingmarriage see Katherine
rights, M. Franke, The Politics ofSame-Sex Marriage Politics,
15 Colum.J. Gender& L. 236,246-48(2006) [hereinafter Franke,Marriage Politics]
(challenging effortsto gainmarriage equality through arguments thatsame-sex relation-
shipsaremarriage-like).
72. See MichaelS. Pollard8cKathleenMullanHarris,Cohabitation and Marriage
Intensity: Consolidation, Intimacy and Commitment 13 (RANDLabor8c Population,
Working PaperNo. WR-1001, 2013), availableat http://www.rand.org/content/dam/
rand/ pubs/ working_papers/WRl 000/WR1001/RAND_WR1 001.pdf (on file with the
Columbia LawReview). Theseresearchers comparedmarriage and cohabitation, usinga
largedatasetofyoungadults.Id. at 1-2.Theyfoundthatsixty-eight percent ofwomenin
marriages hadjointchecking accounts versus sixteen percent ofwomenin cohabitations.
Id. at 11. Maritalproperty is sharedon divorceunlessthespousesaffirmatively optout
through premarital agreements, an optionchosenbyonlya smallpercentage ofmarried
couples.HeatherMahar, WhyAreThereSo FewPrénuptial Agreements? 1 & n.l (Harvard
JohnM. OlinCtr.forLaw,Econ.,8cBus.,Discussion PaperNo. 436,2003),availableat
http://www.law.harvard.edu/programs/olin_center/papers/pdf/436.pdf (on filewiththe
Columbia LawReview) (describing studiesfinding 1.5%,5%,and5%-10%ofmarrying cou-
pleshaveprénuptial agreements) .
ment,and other measures of well-being.73 Although manyfactorscontrib-

ute to the differences,including substantialselection effects,some of the
benefitsaccruing to maritalfamiliesinhere simplyin the stabilityof mar-
riage itself.74
Scholars have argued that the relativestabilityof marital familiesin
part is a function of legal and normative influences on the behavior of
spouses that support the bond between them. The formal commitment
undertaken by couples entering marriage is not casual; it typically
involves the ceremonious assumption of mutual obligations.75Marriage
can be set aside only through the formal legal process of divorce, which
even today carries high social and legal costs.76But beyond its formal
73. The recentNationalSurvey of Family Growth foundthatalmosthalfof those

cohabitationunionsthatdo nottransition tomarriage dissolved within threeyears."Forty
percentof firstpremarital cohabitations amongwomentransitioned to marriage by3
years,32% remained intact,and 27% dissolved." CaseyE. Copen,Kimberly Daniels8c
William D. Mosher, Nat'lCtr.forHealthStatistics, Ctrs.forDiseaseControland Preven-
tion,NationalHealthStatisticsReports No.64,First Premarital Cohabitation intheUnited
States: 2006-2010 National Surveyof FamilyGrowth5 (2013), available at
http://www.cdc.gov/nchs/data/nhsr/nhsr064.pdf (on filewiththeColumbia LawReview).
Pollardand Harrisfoundsubstantially lowerlevelsofcommitment between cohabitants
thanbetween spouses.Pollard & Harris, supra note 72,at 12-13.
SaraMcLanahan and hercolleagues, in theirlongitudinal FragileFamilies and
ChildWellBeingStudy, havefoundthattherelationships ofunmarried parents areless
stablethanthoseofmarried parents; nearly two-thirds ofunmarried parents' relationships
havedissolved bytheirchildren's fifthbirthday. See McLanahan 8cGarfinkel, supranote
27,at 149-52;seealsosupranote27 (discussing study).
74. Morehighlyeducatedand wealthier couplesmarry at farhigherratesthan
poorer,lesseducatedcouples,andmanyofthedifferences in outcomes canbe attributed
tothisselectioneffect.See Carbone8cCahn,supranote68,at2-4 (explaining correlation
between socioeconomic status,marriage rates,and partner selection).Butnotall differ-
encesaredue to selection effects.See RobertE. Emery, ErinE. Horn8cChristopher R.
Beam,Marriage and Improved Weil-Being: UsingTwinsto ParsetheCorrelation, Asking
HowMarriage Helps,andWondering WhyMorePeopleDon'tBuya Bargain, inMarriage
attheCrossroads, supranote2,at 126,134(usingtwinstudy toconfirm marital benefits);
seealsoDeborahCarr8cKristen W.Springer, Advances inFamilies andHealthResearch in
the21stCentury, 72J.Marriage 8cFam.743,748-52(2010) (reviewing research showing
maritalbenefitson health).Thisdoesnotmean,ofcourse,thatcoercing unmarried cou-
plestomarry wouldproducestability.
75. Fora discussion oftheroleofwedding ceremonies and traditions suchas wed-
dingringsin reinforcing marital commitment, see Elizabeth S. Scott,SocialNormsand
theLegalRegulation ofMarriage, 86Va.L. Rev.1901,1916-238cnn.34-35(2000) [here-
inafterScott,SocialNorms] ; see also Elizabeth S. Scott,A WorldWithout Marriage, 41
Fam.L.Q. 537,562-66(2007) (arguing"ceremonies and traditions thatsurround mar-
riageand... theintricate webofsocialnormsregulating spousalbehavior contribute to
ofmarriage").
thestability
76. Economists ShellyLundberg and RobertPollakarguethatthehighcostofdi-
vorce,including theinternalized senseofpersonal defines
failure, marriage as a relation-
of
ship intertemporal commitment and is a key distinction between marriage and
cohabitation.ShellyLundberg 8cRobert A. Pollak,Cohabitation and theUnevenRetreat
fromMarriage in theU.S.,1950-2010, at 14 (Nat'lBureauofEcon.Research, Working
PaperNo. 19413,2013),availableat http://www.nber.org/papers/wl9413 (on filewith
legal structure,marriage is embedded in informalsocial norms that pre-

scribe expectations for spousal behavior and underscore its nature as a
familyrelationship defined by long-termcommitment.These norms are
internalized, therebyreinforcingtrust,and are also enforced externally
through informal sanctions.77Although the norms regulating marriage
functionimperfectlyin contemporarysociety,78 theytend to support mar-
ital commitment by guiding spouses' behavior in ways that strengthen
relationships and deter behavior that may have a destabilizing effecton
the relationship.
In sum, marriage occupies a secure status as a legally recognized
family with broad public support. Moreover, although marriage has
become both less common and less stable in modern times,the weightof
the evidence is that marriage as a category continues to fulfillrelatively
well the functionsthatjustifyits protected legal status.
D. ExtendingStateBenefits
to OtherFamilies
The fact that the law confers deference and societal resources on
marriage does not mean that the privilegedstatusof this traditionalfam-
ilyformshould be exclusive.In a liberal society,fundamentalprinciples of
autonomy support a state policy that promotes pluralism and provides
opportunities for individuals to form family relationships that bring
happiness and satisfytheir needs.79 Moreover, the current social climate
makes such a pluralist approach feasible. But while autonomy values
argue for expanding choice beyond traditional legal boundaries, social-
welfare concerns predictablywill be invoked to justifyrestrictingfamily
status to those relationships that are likely to fulfillthe legitimate state
interestin reliablysatisfyingdependency needs. Legal privilegingof fami-
theColumbia LawReview). On theirview,thiscommitment facilitatesa long-term invest-

mentinchildren, a goalthatmotivates contemporary marriage. Id. at28-29.
Upondissolution, thefinancialobligationsundertaken bythespousesusually are
legallyenforceable. See ElizabethS. Scott8cRobertE. Scott,Marriage as RelationalCon-
tract,84Va.L. Rev.1225,1308-09(1998) [hereinafter Scott8cScott,Relational Contract]
(describingproperty distribution
on divorce).In community-property states,propertyand
incomeacquiredduringmarriage arecommunity property.In otherstates, maritalprop-
ertyis subjectto equitabledistributionon divorce, unlessthecoupleoptsoutthrough a
prénuptialagreement. See supranote72 (discussing smallportionofcouplesexecuting
prénuptialagreements). Fora discussionofproperty distributionon divorce, see Ellman
etal.,supranote52,at317-80.
77. See Scott,SocialNorms, supranote75,at 1920-23,1960-66(arguing traditional
marriage wasregulated bycommitment normsand gendernorms, whichbecamebun-
dled,contributing tocontemporary criticism
ofmarriage). The couple'scommunity sanc-
tionsviolationsthrough gossipandotherexpressions ofdisapproval. Id. at 1921n.45.
78. See id. at 1940(providing examples ofwhenmarital normshavefailed).Thisis
so fortworeasons:First,the normsthemselves are weaker, and, second,the greater
anonymity andmobility ofurbansociety dilutestheireffectiveness.
79. A pluralist approachallowsindividuals to pursuetheirownconceptions of the
goodlife,whichformanypeoplesurely includes livinginfamiliesthatsatisfy physicaland
emotional needs.See supranote10 (citing articles
arguing forpluralist approach).
lies absorbs resources that are not available for other social purposes:
Estate taxes not paid by survivingspouses, for example, are lost to the
federal treasury.Nonetheless, this allocation of resources is justified
when an aspiring family group fulfillsthe socially valuable functions
identifiedabove, therebyrelievingthe state of part of its collective obliga-
tion to care for dependency. In sum, while not all claimants warrantspe-
cial familystatus,groups that care adequately for members' dependency
needs and have the qualities of commitment,durability,and emotional
and financialinterdependence deserve legal recognition and support.
On occasion, lawmakers have acknowledged this point. Legal bene-
fitsare sometimesextended to adult de facto relationshipson the basis of
their similarityto marriage.80 Courts have also recognized de facto
parent-child relationshipsin situationsin which an adult has functioned
in a parental role foran extended period in a familysetting.81 But despite
general public tolerance of a diverse range of families,the success of gays
and lesbians in gaining access to marriage representsthe only discernible
trend toward elevating the legal status of a category of nontraditional
families.
This presentsa puzzle. In a societyin which the public accepts family
diversityand acknowledges the importance of families to individual and
collective welfare,what explains the legal inertia? Are there particular
conditions that impede legal recognition of nonmarital families? The
answers to these questions can shed light on whysome nonmarital fami-
lies have failed to obtain legal protection despite more tolerant social
attitudes.
II. A Collaborative Model of the Evolution of Novel Family Forms
This Part seeks to explain the legal inertiaand to specifya process by

which aspiring familygroups might attain their goal. We develop an
informal model that describes a multistage collaborative process by
80. Courtsassessing whether somenonmarital couplesdeserverecognition as "fami-

lies"haveevaluated theirrelationships againsta metricof marital-family behavior and
- pointing
attributes to theirdurability,
history offinancialinterdependence,careduring
andintimate
illness, companionship. See Braschiv.StahlAssoes.Co.,543N.E.2d49,54-55
(N.Y.1989)(holding couplecouldqualify as "family"underrent-controlordinance based
on marriage-like
relationship);see alsoConnellv.Francisco, 898P.2d831,836-37(Wash.
1995) (upholding equitabledistribution of property betweencohabitants on basisof
marriage-likequality of Douglas
relationship); Nejaime, Before Marriage: The Unex-
ploredHistory ofNonmarital Recognition andItsRelationship to Marriage,102Calif.L.
Rev.87,113(2014) (explaining advocates fordomestic-partnershiprights in
in California
1990sarguedgayunionsweremarriage-like).
81. Manycasesinvolve lesbiande factoparents livingwiththechildandlegal(usually
birth)mother. Courtshaveallowedvisitation whena petitioner
rights canshowshefunc-
withtheagreement
tionedas a parent ofthelegalparentforan extended periodoftime.
See,e.g.,V.C.v.M.J.B.,748A.2d539,548 (N.J.2000) (holding de factoparenthadstand-
ingtoseekvisitation). Whenthegaycouplemarries, thespousebecomesthelegalparent
tochildren borntothemarriage.
which novel familyformscan achieve legal statusas families.The analysis

begins with the premise that the state appropriately grants legal privi-
leges and benefits to families because these groups supply important
social goods for which the state would otherwise be responsible.82Part
II.A shows that, owing to the effectsof uncertaintyabout whether novel
familygroups satisfythis criterion, the parties face challenging condi-
tions thatimpede theirprogress towardgaining legal recognition as fami-
lies. In Part II.B, the uncertaintyis resolved in the model through three
stages of an integratedprocess, each of which is defined by a formof col-
laboration. Collaborative engagement in the development of novel com-
mercial relationshipsprovides exemplars of how these impediments have
been overcome in other contexts. This analysis illuminates the mecha-
nisms parties use to make credible commitments to each other, signal
those commitmentsto others,and engage withthe state in verifyingtheir
compliance withestablished norms.
A. ConditionsImpedingtheLegal Recognition
ofNovelFamilyRelationships
Consider a group composed of two men and two women who have
developed close emotional and sexually intimate relationshipswith one
another and wish to live togetheras a single familybound by a long-term
commitment to mutual support, interdependency, and equality.83The
group plans to pool earnings and property,and to have children and
care for them collectively.Will this group face conditions that impede
their effortsto secure the rightsand obligations currentlybestowed on
marital families?This thought experiment yields the prediction that an
aspiring polygamous family84 will confrontthree significantobstacles on
the path to legal recognition.
The firstchallenge this group faces is relational uncertaintyor nov-
elty:Familyrelationshipssuch as these are experimental, and even close
emotional bonds are not predictive of whether the group will function
well as a family.Lacking models of similar relationships that have suc-
ceeded in formingfamilies, the individual members of the polygamous
82. ThisArticle does notchallengethatmarital mayhavehistorically

privilege had
otherjustifications,
butrather itassumesthat,in contemporary society,thelegitimacyof
marital isbasedon itssocialutility
privilege as a familyform.
83. The commitment of our hypothetical polygamous family to formalequality,
mutualsupport, and loyalty distinguishesthisaspiring familyfromotherpolygamous
groups,suchas fundamentalist Mormons, thatareorganized hierarchicallyarounda sin-
gledominant malefigure. See Davis,supranote8, at 1966(observing polygamyis "over-
whelminglybetween a singlehusbandmarried tomultiple wives"and "maledominance is
a characteristic
ofpolyandrous societies
aswell"(internal quotationmarks omitted)).
84. Polygamy is definedas pluralmarriage withmultiple spousesregardless of the
gendercombination; polygyny is thefamiliarformofone manand multiple wives.See
Emens,Monogamy's Law,supranote35,at 300-03(clarifying terms). Ourgroupaspires
tolegalrecognitionofplural(orpolygamous) marriage. Polyamorous relationshipsdo not
imply commitment, a qualityoffamily relationshipsas we havedefinedthem.See id. at
303-09(describingfluidityofterm"polyamorous"). Thusourfamily is "polygamous."
family will be unsure whether their affiliation will be durable and

whether the trustand confidence that support long-termcommitment
will develop. A second difficultyinheres in the fact that novelty also
implies idiosyncrasy.In the initial stage, there are few other polygamous
familieswith similar aspirations with whom to share experiences. Thus,
even if theycan develop the means to create the necessary trustin each
other's capabilities, a polygamous familymay be socially isolated, lacking
a communityof similaraspiringfamilies.The nature of theirrelationship
will also be unfamiliar to the public, which may view this novel family
withsuspicion- and perhaps hostility.85 This isolation quite obviouslycre-
ates a daunting obstacle to recognition at the level of practical politics,86
but it also means that aspiring polygamous families are not (or are only
weakly) integrated into the larger normative community that defines
expectations forfamilybehavior.
A final problem stemsfromthe need to persuade the state to extend
legal recognition to polygamous families as a recognized familyform in
exchange for their readiness to assume familyresponsibilities.The state
faces a serious informationdeficit in evaluating whether this new cate-
goryof familyhas the qualities thatjustifyspecial legal treatment.This is
because familyfunctioningis largelyprivate,and the durabilityand ade-
quacy of the novel group may be hard to assess. Thus, state actors face
informationalbarriers in sorting groups deserving of familystatus from
other groups thatmay seek the privilegesand resources allocated to fami-
lies but fail to create the welfare benefits the state requires.87 The
discussion that follows argues that in combination these conditions
impose significant obstacles to effortsby a hypothetical polygamous
familyto secure legal-familystatus.
1. TheProblemofRelationalNovelty. - To some extent,the problem of
novelty is almost universal when adults form family relationships.
Individuals must establish trustin each other's character and have confi-
85. The publicreactionto polyamorous groupsis verylikelyto be hostile.See

Newport & Himelfarb, supranote35 (finding eighty-threepercent ofrespondents found
polygamy to be morally wrong).Othernovelfamilies, suchas voluntarykin,mayface
skepticismbutlessanimus. See infraPartIII.C (discussingothernondyadicfamilies) .
86. Wearguein PartII.B.3thattheformation networks
ofinterest-group is likely
to
be an important meansofpursuing thegoaloflegalrecognition.
87. A legalstatus(suchas marriage) thatgrantsbenefits and privileges carriesa
moral-hazard risk.Cf.Kerry Abrams, Marriage Fraud,100Calif.L. Rev.1, 14-39(2012)
(describing government toprevent
strategies fraudulent claimstovariousmarriage bene-
be (and hasbeen) a concernwhennovelfamilies
. The riskwilllikely
fits) seekrecogni-
tion.Forexample, whenadvocates soughtdomestic-partnership statusforgaycouplesin
Californiain the1990s,insurance companies thestatusbe definedso thatonly
insisted
marriage-likecouplesqualified.See Nejaime,supranote80,at 115 (explaining insurance
carriers"resisted
addingdomestic partnership coveragewithoutassurancesthatthisnew
relationshipstatuswouldbe characterized bya marriage-like levelofcommitment"). The
companies fearedthatindividuals withAIDS wouldregister withsympathetic friends,
thereby forhealthinsurance.
qualifying Id. at 141.
dence in their respectiveabilities before theycan make credible commit-

ments to undertake the demanding roles required. Although some
people report having a love-at-first-sightexperience when theymet their
futurelife partners,more typicallythe process of findingsatisfactoryand
lasting familyrelationships is one of experimentation and adjustment.
Commitmentis usually tentativewhen relationshipsare new, and it grows
over time unless or until one or both of the parties realizes that the rela-
tionship is unsuccessful. Moreover, the parties may differin their inten-
tions and investment in the union. Each hopes that the prospective
partner will be a trustworthyand competent caretaker and that
emotional attachmentswill mature and endure. But only through experi-
ence can parties evaluate accuratelywhether their relationships embody
the qualities thatdefine successfulfamilies.88
The level of uncertaintyis significantlygreater when individuals,
such as those forminga polygamous family,experimentwithnovel family
forms. Aspiring families are by nature experimental: The parties lack
exemplars to guide them in familybehavior and must adapt and adjust
their roles and interactionsover time as they seek to fulfillfamilyfunc-
tions in uncharted settings.89 Some formsmay workbetterthan others to
satisfydependency needs reliably.The individuals forminga polygamous
for
family, example, will be uncertain whethermultiple adults in a conju-
gal group will function effectivelyto care for one another and their chil-
dren in stable, committed relationships.Increasing the number of adults
beyond a partnershipof two individuals adds complexityto the relation-
ship; withcomplexitymay come a greater potential for exploitation, con-
flict,or alliances within the group- all of which might contribute to
instability.90Even if these risks are never realized, the evidence of
whether a novel familyform is viable can only be acquired through
extended experience. Only when the heightened level of uncertaintyis
substantiallyresolved can the parties determine that their polygamous
familyhas the caring qualities and the enduring character that the social-
welfarecriterionrequires.
88. Theevidencethat,forwomen, almosthalfoffirst cohabitations

premarital transi-
tionto marriagein threeyears,Copen,Daniels& Mosher, supranote73,at 5, suggests
thatmanyrelationshipsgo through thekindofexperimentation wedescribe.
89. Forexample,committed polygamous families
cannotmodeltheirrelationships
on marriage.Butbecausetheyarededicated toformal amongalladultmembers,
equality
theywouldnotreceivesubstantial normativesupportfromthosepolygamist groups,such
as fundamentalist
Mormons, thatfunction
as male-dominated hierarchies.
90. FundamentalistMormongroupsmaymaintain stability
througha rigidhierar-
chicalstructure,
see infranote290 and accompanying text(describing
thisstructure),
whichthisArticlerejectsas unacceptablein a modernfamily. AdrienneDavisidentifies
thesechallengesandarguestheycanlargely be resolvedthrough partnership
regulation.
See Davis,supranote8, at 2002-17(arguing lawaddresses
commercial-partnership chal-
lengescausedbypluralmarriage, includingthoserelatedto formation,
entrance, exit,
andproperty
dissolution, .
rights)
2. Social Isolation: The Absenceof AssociationalBonds and Public Ac-

-
ceptance. Even if the adult members of a polygamous familygain confi-
dence and trustin one another as a functioningfamily,other challenges
remain. In the earlyperiod of its evolution, the isolated novel familytypi-
cally lacks a communityof similar families; this creates two problems.
First, the polygamous family must rely solely on its own members'
commitmentand resources for success. The absence of a broader social
group leaves the polygamous familywithout the benefit of friends and
neighbors who offersupport and enforce behavioral norms,91important
sources of stabilityfor marital families. Moreover, even as their numbers
increase, success in the political arena is unlikely unless polygamous
families affiliateand form an interest group (or groups) dedicated to
achieving their shared political goal of attaininglegal recognition. With-
out such coordination, polygamous familiesmightfulfillfamilyfunctions
well, but theywould stillbe likelyto retain their outsider status.In short,
the novel familyfaces the challenge of overcoming isolation and creating
a networkof familiescapable of developing group norms and mobilizing
political action to gain support forthe group's legal recognition.92
Successful mobilization poses daunting challenges for novel fami-
lies.93Due to polygamous families' separation from society,the public
initiallymay be unaware of the group's existence and later may find their
familyrelationships to be strange and unfamiliar.Public awareness is a
necessary (but not sufficient)condition forlegal recognition. But even in
an era of more tolerant public attitudes,growing public awareness may
engender skepticismor hostilitybased on assumptions that polygamous
families will not function adequately as families, that they may harm
91. Aswediscussbelow,thecreation ofa networkofaspiring familiesmaybe a key

intermediate stepin a norm-formation process betweena period in which smallnumbers
offamiliesfunction inisolation andoneinwhichthenovelfamily groupattains somelevel
ofpublicacceptance. See infraPartII.B.3.
92. Ourdescription and realisolation
ofthisprocessis stylized, likelyexistsonlyin
theearlieststage.See VertaTaylor 8cNancyE. Whittier, CollectiveIdentityinSocialMove-
mentCommunities: LesbianFeminist Mobilization,in Frontiers in Social Movement
Theory104,109-21(AldonD. Morris8c CarolMcClurgMuellereds.,1992) ("[T]he
purposeful and expressive disclosureto othersof one'ssubjective feelings,desires,and
experiences- or socialidentity- forthepurposeofgainingrecognition and influence is
collective
action.").
93. A substantialliteraturefocuseson theroleofsocialmovements inadvancing legal
andconstitutional reforms. Somescholars haveanalyzed themobilization andimpactof
identity-basedsocialmovements. See, e.g.,Lani Guinier8cGeraldTorres, The Miner's
Canary:Enlisting Race,Resisting Power, Transforming Democracy 74-82 (3d ed. 2003)
(discussingmobilization ofracialgroups);William N. Eskridge,Jr.,Channeling: Identity-
BasedSocialMovements and PublicLaw,150U. Pa. L. Rev.419,447-48,456-57(2001)
[hereinafter
Eskridge, Channeling] (describing ofgay-rights
mobilization movement) . For
a discussionof socialmobilization to attainfamilyrights,see infranotes149-152and
accompanying text.
dependent members, or that they are engaging in immoral behavior.94

Thus, the aspiring familycategory faces the challenge of demonstrating
to the larger community that they are faithfullyperforming family
roles- a difficulttask given that families function largely in the private
sphere. Further,the anticipation of a hostile public response may inhibit
the inclination of these families to publicize their familyrelationships.95
But if theyare "closeted," polygamous familieswill find it more difficult
to gain public acceptance as well-functioning families.
Public ignorance or skepticism about the qualities of an aspiring
familycategoryundermines the prospect of legal recognition.96Although
the relationship between public attitudes and legal reformin the realm
of civil rightsis complex,97some level of public tolerance and receptive-
ness is (and has been) a predicate to the willingnessof political actors
and courts to confer new family rights.98Moreover, a community of
94. The testimony in thecongressional hearings fortheDefenseofMarriage Actin

1995wasrepletewithallegations thatgayrelationships wereimmoral, promiscuous,and
harmful to children. See, e.g.,142 Cong.Rec. 17,070(1996) (statement of Rep.Barr)
("The veryfoundations of our society are in dangerof beingburned.The flamesof
hedonism, theflames ofnarcissism, theflames ofself-centered morality arelickingat the
veryfoundations ofoursociety: thefamily unit.").Today,polygamous familiesfacea simi-
larresponse. See infraPartIII.C.l (describing challenges polygamous familiesconfront in
achieving recognition giventraditionally skepticalattitudes totheirfamily structure).
95. PartIII.Adescribes howgaycouplesliving in family facednotonly
relationships
publicanimusbutalsocriminal sanctions andlossofemployment, whichnotsurprisingly
led manyto remaincloseted.Mostobservers agreethattheAIDS crisisand thelesbian
babyboomwerecritically important in leadingmanygaycouplestoliveopenlyandform
networks in pursuit ofthegoaloflegalprotection oftheirfamily See infra
relationships.
notes214-230and accompanying text(describing natureand impactofbothphenom-
ena). Thisinturnledtopublicfamiliarity. See infranotes235-238andaccompanying text
(discussing transformation of publicattitudes towards same-sex relationshipsresulting
from gaycommunity's politicalandsocialcollaboration).
96. Fordiscussion oftherelationship between publicfamiliarity and acceptance in
themarriage-equality movement, see PartIII.A;see also MichaelJ. Klarman, Fromthe
Closetto theAltar:Courts, Backlash, and theStruggle forSame-Sex Marriage 196-202
(2013) [hereinafter Klarman, ClosettoAltar](discussing relationshipbetween changing
publicattitudes andlegalreform).
97. MichaelKlarmanhas studiedthe relationship betweenpublicopinionand
constitutional reform in othercontexts. See Michael J.Klarman, FromJimCrowto Civil
Rights:The SupremeCourtand the Strugglefor Racial Equality344-442 (2004)
[hereinafter Klarman, JimCrow] (discussing publicbacklashto Brownv. Boardof
Education).
98. Thisdoesnotmeanthatgeneralacceptance is required. The earlyjudicialopin-
ionsconferring marriage rightson gaysand lesbianswerecriticized and notgenerally
popular.See Klarman, Closetto Altar, supranote96, at 166-69(providing exampleof
publicand politicalbacklashfollowing Goodridge). In responseto publiccriticism, the
Massachusetts movedto amendthestateconstitution
legislature post- butitre-
Goodridge,
considered a yearlater.Roderick L. Ireland,In Goodridge' s Wake:Reflections on thePoli-
tical,Public,and PersonalRepercussions oftheMassachusetts Same-Sex Marriage Cases,
85 N.Y.U.L. Rev.1417,1423& n.25 (2010).However, itseemslikely thatthepublicwas
morereceptive to recognizing the rightsof gaysand lesbiansin theearlytwenty-first
century than it would havebeena generation earlier, whenthepossibility oflegalmar-
polygamous familiesthat is separated fromthe larger societylargelylacks

the benefit of the normativeframeworkregulating familybehavior that
generallystabilizes and supports those families that already enjoy social
recognition."
3. The Verifiability . - Even afterpolygamous familiesdevelop
Problem
the trustand confidence to sustain their mutual commitmentsand affili-
ate with similar families in pursuit of public acceptance and legal
recognition, the state confrontsa severe informationproblem in verify-
ing the petitioning groups' family functioning. Predictably, not all
relationshipswill qualifyfor the legal subsidy that is conferred on tradi-
tional families,and even groups that have attained social acceptance may
have a relational form that imposes latent riskson vulnerable members.
The state has an independent interestin determiningwhethernovel fam-
ily categories seeking recognition function safelyand successfullyfor all
family members, an interest that may require a greater depth of
knowledge than is needed to attain public acceptance.100Accurate infor-
mation is particularlyimportant because legal recognition, once con-
ferred,may be difficultto withdraw.But the inherent privacyof family
functioning poses a classic information problem: State actors making
decisions about conferringfamilystatus may have difficultydiscerning
whether polygamous families as a categoryfulfillthe functionsand pos-
sess the qualities that make familyrelationshipssociallyvaluable.101Many
of the tangible qualities that characterize successful familygroups, such
as financial interdependence and mutual care, involve behaviors that are
riagebetween same-sex partnerswouldhaveseemedfanciful to mostpeople.See infra

PartIIIA (tracing same-sex relationships' evolutionfrom outsiderstatustofullintegration
andlegalrecognition).
99. See Scott8cScott, RelationalContract, supranote76,at 1288-93(describing role
ofinformal socialnormsinenforcing terms ofmarriage contractandpromoting coopera-
tionandstability inintact marriage).Thereareclearly exceptions totheideathata family
groupmustintegrate intothelargersociety to enjoythebenefits ofa normative frame-
work.The Amishliveseparately fromthelargersociety in a community regulated by
robust socialnorms. See StevenV.Mazie,Consenting Adults?
AmishRumspringa andthe
Quandary ofExitinLiberalism, 3 Persp.on Pol.745,748-49(2005) (describing strict
life-
stylenormsamongAmishcommunities) . Butthebasicnormsthatregulate Amishfamily
behavior aremodeledon thosethatregulate marriagegenerally.SeeJuliaA. Ericksen et
Patterns
al.,Fertility andTrendsAmongtheOld OrderAmish, 33 Population Stud.255,
256 (1979) (describing Amishmarriages as "monogamous" and "in the Anabaptist-
Christian ).
tradition"
100. See infratextaccompanying notes170-173(discussing fraudandjeopardizing
dependent members as potential
risksinpolygamous .
families)
101.Theproblem ofverifiability
bythird-party decisionmakers hasbeenofgreatinter-
estto contracts scholars.The problem ariseswhencourtsmustevaluatecontract perfor-
mancethatcannotbe specifically described. See RobertE. Scott& GeorgeG. Triantis,
Anticipating Litigationin Contract Design,115YaleL.J.814,825 (2006) ("Contract theo-
ristsidentifyverificationcostsas one oftheprincipal obstaclesto complete contracts.");
see also OliverHart,Firms,Contracts, and FinancialStructure 35-38 & n.15 (1995)
(discussing problems of verifying qualityof book in royalties contract as exampleof
"verifiability"
problem).
not readilyobservable to thirdparties. Moreover,intangible qualities that

define families,such as long-termcommitment,loyalty,and equality,are
difficultto evaluate in the absence of express promises or reliable prox-
ies. Thus, distinguishingwell-functioningfamilycategories fromexploita-
tive or less stable affiliationsposes a challenge for state actors, who may
have difficultygetting reliable evidence about the nature of claimants'
relationships.
B. TheEvolutionTowardLegal RecognitionThroughCollaboration
1. TheElementsofCollaborative Behavior.- Our social-welfarepremise
implies that the state will limit legal recognition to those categories of
aspiring families that can overcome the impediments caused by rela-
tional novelty,social isolation, and nonverifiability. While the possible
means of coping with these conditions are overlapping and interrelated,
for analytical purposes they can be separated into three highly stylized
evolutionarystages: (1) individuals (exemplars of the novel familytype)
form and successfullymaintain families, (2) the individual exemplars
formassociational bonds thatfosterdurable group norms and enable the
collective to pursue the acceptance and support of the community at
large, and (3) the state acquires the informationabout the particular
context in which a novel familytypefunctionsto certifyits entitlementto
legal-familystatus.
Our model uses exemplars from commercial contexts to show how
each of the uncertainties that impede the recognition of novel family
formscan be resolved by processes that we loosely describe as collabora-
tion.Collaboration refersto a set of behaviors designed to pursue a com-
mon objective that can only be achieved through the combined effortsof
more than one partywhen the prospect of success cannot be determined
until aftereach partymakes investmentsin the relationship. Parties who
collaborate commit to sharing private information,adjusting iteratively
to the new informationacquired from others, and relyingon informal
norms as the means of motivatingeach party to invest in the relation-
ship.102This technique builds trust in each party's commitment to
cooperate in pursuing substantivegoals as well as confidence in the abil-
ityof the other(s) to performtheirundertakingscompetently.103
Aspiringfamilies,such as our polygamous family,can use collabora-
tive techniques to respond to each of the three challenging conditions
thatwe have identified.At the firststage,joint collaborations between (or
among) individuals aspiring to form polygamous familiesbuild the trust
102. RonaldJ.Gilson,CharlesF.Sabel8cRobertE. Scott,Contracting

forInnovation:
VerticalDisintegration
and Interfirm 109 Colum.L. Rev.431, 446-48
Collaboration,
Gilson,
(2009) [hereinafter Sabel& Scott, forInnovation];
Contracting CharlesF.Sabel,A
Real-TimeRevolutioninRoutines,inTheFirmas a Collaborative
Community 106,110-13
(CharlesHeckscher8cPaulS. Adlereds.,2006).
103. Gilson,
Sabel8cScott, supranote14,at 1402-04.
Braiding,
and confidence needed to overcome the unique uncertaintycaused by

relational novelty.Collaborative agreements interweave formal commit-
mentswithinformalnorms in waysthat respond to the uncertaintyinher-
ent in the process of experimentation.At the second stage, collaboration
enables isolated polygamous families to overcome collective-actionprob-
lems and associate withother similarfamiliesin developing group norms
and forming networksin pursuit of their goals of public acceptance.
Finally,at the thirdstage, collaboration between an aspiring categoryand
the state facilitatesjoint action to mitigate the risk of harms that other-
wise may impede certificationof the familyclass. At each of these evolu-
tionary stages, the key collaborative behaviors of informationsharing,
iterativeadjustment,and informalenforcementare common elements.
The discussion that followsshows how collaboration in the world of
commercial contractinghas facilitatedeffectiveresponses to the condi-
tions of relational novelty,social isolation, and nonverifiability. These
analogies contribute to an extended example of how a novel familyform
can evolve from individual aspiring families that successfullydevelop
mechanisms to ensure mutual care and support for theirmembers, to an
associational networkthat signals its identitywith the larger normative
community,and finallyto a legallyrecognized group throughverification
and certificationby the state that members of the successful group are
able reliablyto fulfillfamilyfunctions.
2. CollaborativeContractingas a Means ofCopingwithUncertainty . - We
begin with this question: How can a polygamous family(of two men and
two women) form a durable familywithout prior experience with one
another or with the familyform, and without normative guidance tai-
lored to the form?104 The parties understand the functions of families
and have general goals for their affiliation.But because of the noveltyof
their relationship and the dearth of similar familyexemplars, the pros-
pect of a durable commitmentfor ongoing support, care, and nurtureis
highly uncertain. At the outset, none of the aspiring familymembers
knows whether making an enduring commitment is the best means of
pursuing his or her best interests.For this reason, the parties cannot
specifywith any confidence a set of defined obligations that will achieve
their goals for the relationship. In short, at the outset there is not only
uncertaintyabout whether particular individuals can form these durable
commitmentsbut also uncertaintyover whether the form itselfis one in
which the functionsof familiesare fulfilledsatisfactorily.
a. A CommercialAnalogue: CollaborativeContractingin an Uncertain
World.- An analogue existsin the commercial realm to thisvexing prob-
104.Recallthatourhypotheticalpolygamousfamilyiscommitted andequal-
toloyalty
ityamongall adultmembers. Thus,thisaspiring family male-
cannotuse hierarchical,
dominatedpolygamous groupsas a template See supranotes83-84
fortheirrelationship.
andaccompanying text(introducingkeyassumptions thisArticle's
describing hypothetical
polygamous .
family)
lem of relational uncertainty. Because of the increasing pace of

technological development in the contemporary global environment,
commercial actors sometimes need to find partners to share capabilities
in pursuing a project that can only be defined and ultimatelydeveloped
through their joint efforts.105 Traditional modes of contracting often
offer no solution to the contracting problems these parties confront.
Facing these conditions of relational uncertainty,commercial actors
innovate, searching for partners capable and willing to engage in
ongoing collaborations.106These innovative "collaborative agreements"
have become an essential part of doing business in the contemporary
commercial environment.107
In a number of industries characterized by rapid technological
development, conditions of high uncertaintyhave led to collaborations
where both parties' skillsand commitmentto cooperate are necessary to
achieve success.108In settingsas diverse as the pharmaceutical industry
and manufacturingsupply chains, parties have come to realize that the
feasibilityof many projects can only be determined byjoint investmentin
the production of informationto evaluate whethera project is profitable
to pursue.109An example is the research collaboration between a large
pharmaceutical company with expertise in bringingnew drugs to market
and a smaller biotech firmwith innovativetechnology.The collaborative
agreement aims to explore the feasibilityof jointly discovering and
developing a novel pharmaceutical product.110The common feature of
these regimes is a commitment to joint exploration: The contract regu-
lates only the commitmentto collaborate and not the course or the out-
105. See FrancineLafontaine& MargaretSlade, VerticalIntegration and Firm

Boundaries: The Evidence, 45 J. Econ.Literature 629,649 (2007) (suggesting hold-up
problem"clearly pose[s] problems forlong-term contracting,and thoseproblems are
exacerbated involatile
environments").
106. Fordiscussion ofthelegalmechanisms thatsupport thesearchforpartners capa-
ble and willingto engagein a collaboration, see Alan Schwartz & RobertE. Scott,
Precontractual and Preliminary
Liability Agreements, 120 Harv.L. Rev.661, 676-80
(2007).
107. Thedevelopment ofandincrease in theuseofthisnewformofcommercial con-
tracting is documented in Gilson,Sabei8cScott,Contracting forInnovation, supranote
102,at472-89.
108. In previous work, one ofus hasidentified whatis looselycalled"theinformation
revolution" as theexogenous shockthatmarked theemergence ofcollaborative contract-
ing.Id. at441-42.
109. Thesetypesofcollaborative arrangements sometimes taketheformofprelimi-
naryagreements or "letters
ofintent."Fordiscussion oftherangeofpreliminary agree-
ments,see RalphB. Lake 8cUgo Draetta,Lettersof Intentand OtherPrecontractual
Documents 10-18(2d ed. 2006).Fora discussion ofpreliminary agreements as a formof
collaborative seeGilson,
contracting, Sabei8cScott, Braiding,supranote14,at 1439-44.
110. See, e.g., Research,Development and LicenseAgreement BetweenWarner-
LambertCo. and Ligand Pharm.Inc. 2 (Sept. 1, 1999) [hereinafter Warner-
Lambert/Ligand Agreement], available
at http://print.onecle.com/contracts/ligand/war
ner.rd.
1999.09.01. shtml(on filewiththeColumbia LawReview) (detailingpharmaceutical
research anddevelopment collaboration
between "bigpharma" and"littlepharma").
come of the collaboration, which is entirelyunspecified. That means any

effortto enforce this agreement in court is limited to protecting each
party's promised investment in the collaborative process rather than
directinga division of any surplus that might result if the collaboration
succeeds.111Thus, neither partyhas a rightto demand the performance
that the parties imagine may resultfroma successfulcollaboration. If the
parties cannot ultimatelyagree on a final objective, they may abandon
the collaboration.112
b. KeyElementsof Collaborative - The abilityof any party
Agreements.
to exit the collaboration raises a central question: What knits the
collaborators' effortstogether? After all, unless the parties can make
credible commitmentsto investin the relationship,the project will never
get off the ground. Studies of these commercial collaborations provide
answers to this key question.113In brief, the collaboration rests on a
governance structurethat, over time, creates confidence in the capabili-
ties and trustin the character of the counterparty.Trust and confidence
are extremelyvaluable commodities: Not only do they motivate each
party to invest in the relationship, but they also make the prospect of
abandoning the relationship in order to collaborate with others much
less attractive.114
The governance of these commercial collaborations shares several
common elements. The firstelement is a commitment to an ongoing
mutual exchange of private informationdesigned to determine if a pro-
ject is feasible and, if so, how best to implement the parties'joint objec-
tives. The second component is a procedure for resolving disputes. Its
key feature is a requirement that the collaborators reach unanimous
agreement on crucial decisions, withpersistentdisagreement resolved by
111. See,e.g.,Eli Lilly& Co. v.Emisphere Techs.,Inc.,408 F. Supp.2d 668,696-97

(S.D. Ind.2006) (holdingremedy forbreachofparties'research agreementis limitedto
righttoterminate andretain accruedscientific
information).
112. See Gilson,Sabei& Scott,Contracting forInnovation, supranote102,at455-56
(notingwhenuncertainty arisesin performance of collaborative
contract,
partiesmay
safely abandon);see also Gilson,Sabei 8cScott,Braiding, supranote 14,at 1422 ("A
refusal to proceedfurther ifa partydeterminesthata projecthasnegative present value
shouldnotbe grounds fordeclaring inbreach.").
thecontract
113. See Gilson,Sabei8cScott, supranote14,at 1405-15(offering
Braiding, examples
ofcollaborativecontractanddescribing operationofsuchcontracts andrelative
shortcom-
ingsoftraditionalcontracts); seealsoIvaBozovic8cGillianELHadfield,Scaffolding:Using
FormalContracts to BuildInformal in Support
Relations ofInnovation7-10 (Univ.ofS.
Cal., Law 8c Econ. ResearchPaper No. C12-3,2012), availableat http://ssrn.com/
abstract=1984915 (on filewiththeColumbia LawReview) (findingempiricalsupport for
institutionalstructure
ofcollaborative in study
contracting conducted through interviews
withgroupofinnovative firms) .
114. See Gilson,Sabei8cScott,Contracting forInnovation, supranote102,at481-84
(notingcostsofworking withnewcollaborator, identified costs,"increase
as "switching
overduration ofexisting
collaboration).
unanimous agreement at higher levels of management fromeach firm.115

Together, these two mechanisms make each party'scharacter traitsand
substantive capabilities observable and forestall misunderstandings.
Working under conditions of uncertainty,the parties can expect to en-
counter unanticipated problems that can only be solved jointly and that
may generate occasions of disagreement. Their increasing knowledge of
each other's capacities and theirwillingnessto share privateinformation
in service of their collective goals facilitate the resolution of problems
and constrainopportunisticbehavior.116
This arrangement is distinctivelylimited in its goals, functioning
only to allow the parties to learn about each other's skillsand capabilities
for collaborative innovation and to develop jointly the routines necessary
to pursue a desired objective. But, importantly,the collaborative agree-
ment does not commit either partyto develop, supply,or purchase any
product or service. Rather,the object is to discover two thingsabout the
counterparty:How well does the counterpartycooperate, and how capa-
ble are theyat workingjointly toward the ultimate goal? In this way,the
governance structureprovides the environmentin which trustand confi-
dence can grow: In effect,collaborative contractingendogenizes trustby
formalizinga process that builds parties' confidence in one another and
thereaftersupports investmentsin their joint objectives based on the
trustcreated. The evidence indicates that, if the collaborative process is
successful, the uncertainties that existed at the outset of their dealings
are resolved through accrued experience, giving rise to traditional
contractualstatementsof obligation and remedy.117
115. See, forexample,the Warner-Lambert/Ligand Agreement, supranote 110,

§§ 3.1.4,3.2,whichprovides thatall decisions arebyunanimous voteand disagreements
areresolved bytheCEO ofLigandandthePresident ofWarner-Lambert's Pharmaceutical
Research Division(ortheirdesignees) . Requiringunanimity forprojectdecisions makesit
easyforreasonable skepticsto requiremoreinformation fromenthusiasts; bumping disa-
greements to
up impatient superiors discouragesobstinacy. See Gilson, Sabei & Scott,
Contracting forInnovation, supranote 102,at 479-81 (describing "'contractreferee'
mechanism" anddetailingadvantages) .
116. The information regimecharacteristic of thesecollaborative agreements is
designedto makeiteasyforeachparty to requestclarificationfromtheother.Thus,the
regime allowsforthejointinterpretation ofambiguity andmakesobservable totheparties
actionsthatwouldbe opaquein an unstructured, informal exchange. Thisheightened,
mutual observabilityallowstheparties tolearnabouttheirrespective as wellas
capabilities
theirdisposition to cooperate.Undertheseconditions, continuing cooperation builds
trustand protects each party'srelianceon thattrustin itssubstantive performance by
increasing thecostsoffinding an alternative partner capableofreliably doing,andlearn-
ing,as muchas thecurrent one.Gilson,Sabei& Scott,Contracting forInnovation, supra
note102,at476-88.
117. Gilson,Sabei& Scott,Braiding, supranote14,at 1382-84.Repetition ina
results
learning processthatreducesuncertainty, permittinga shiftfrom a collaborativeregime to
a fullyspecifiedcontract.MichaelD. Ryall8cRachelleC. Sampson, Do PriorAlliances
Influence AllianceContract Structure?, inStrategic Alliances:Governance and Contracts
206,206-07(Africa Arino8cJeffreyJ.Reuereds.,2006) (finding contracts aremorecom-
pleteordetailed whenfirms haveprioralliances, whether withsamefirm orotherfirms) .
c. CollaborativeContracting in theFamilyContext.- The collaborative

contractingmechanism is ideal for experimentation (1) in an effortto
achieve a goal that none of the parties can accomplish on his or her own
and (2) where the parties are unwilling,owing to uncertaintyabout the
viabilityof the collaboration, to commit in advance to a sustained invest-
ment in the relationship. These two conditions characterize the chal-
lenge facing parties desiring to establish novel familyrelationships.Con-
sider again a hypotheticalpolygamous family.As in the commercial con-
text,these parties face uncertaintyabout the viabilityof the venture they
aim to undertake: It is unclear whether this (or any other) polygamous
familyrepresentsa stable and enduring model for fulfillingfamilyfunc-
Moreover,novel relationshipssuch as this are not sup-
tions satisfactorily.
ported by strong social norms defining behavioral expectations and
encouraging long-termcommitment.
Under those conditions, the goals of this aspiring familycan be fur-
thered through processes that are analogous to the kind of collaborative
agreements that have proved useful in commercial contexts. To be sure,
the sources of relational uncertaintyare somewhat different,and the
formof the agreement among individuals in a novel familygroup is likely
to differfromthe commercial counterparts.A major differencebetween
commercial collaborative contracts and their nascent familial counter-
parts,for example, is the form of the governance arrangement that cre-
ates the environmentwithinwhich trustand confidence can grow.118 In
commercial settings, these structures are specified in formal written
documents, while in the familial context the governance commitments
typicallyarise out of mutual understandings often based on the parties'
conduct over time. But thisdistinctiondoes not diminish the significance
or utilityof the commitmentto collaborate by an aspiringfamilyunit.119
118. See supratextaccompanying notes113-116(describing howtrustand confi-

dencemotivate parties to investincollaborative
relationships).
119.TheRestatement ofContractsprovides, "Apromise maybe statedinwordseither
oralorwritten, ormaybe inferred whollyorpardyfromconduct." Restatement(Second)
ofContracts § 4 (1981).A majority ofstatesrecognizesthevalidityofclaimsbasedon con-
tractsimpliedin factbetweenunmarried cohabitants. MarshaGarrison, NonMarital
Cohabitation: SocialRevolution and LegalRegulation, 42 Fam.L.Q. 309,315-16(2008)
(notingat leasttwenty-six stateshaveapprovedsomeformof contract-implied-in-fact
claimsbetween cohabitants); see,e.g.,Marvinv.Marvin, 557P.2d106,110(Cal.1976)("In
theabsenceofan expresscontract [between unmarried cohabitants], thecourtsshould
inquire intothe conduct of the to
parties determine whether that conductdemonstrates
animplied contract. . . between Doe v.Burkland,
theparties."); 808A.2d1090,1094& n.4
(R.I.2002) (pointing tolargenumber ofstates"thatrecognize bothexpress andimplied
contracts between unmarried cohabitants");Goodev.Goode,396S.E.2d430,438 (W.Va.
1990) ("[A] courtmayordera division ofproperty acquiredby. . . unmarried cohabit-
ants. . . whohaveconsidered themselvesandheldthemselves outtobe husband andwife.
Suchordermaybe baseduponprinciples ofcontract,eitherexpress orimplied....").
Conduct-based agreements sometimes raisedifficult
problems ofproof,butifthe
conduct amongmembers ofa novelrelationalgroupis clear,thisformofcontracting car-
riesthesamedegreeoflegalsignificance. See,e.g.,Baileyv.West, 249A.2d414,416 (R.I.
In both the commercial and familialcases, however,the enforceable

commitmentis limited at the outset to the obligation to collaborate on
effortsto pursue the parties' mutual goals.120A polygamous familycom-
mits to pursue an objective- long-termmutual care and support of each
other and other dependents in their household - under circumstances
where they are uncertain about the ultimate success of the relationship
(or even the specificformthat it may take). As noted above, the resulting
agreement forms the basis for building trust as the foundation of a
committedfamily.These collaborative agreements do not impose obliga-
tions to share propertyupon the dissolution of the relationship; the par-
ties' uncertainty about the success of the collaboration makes such
precise commitmentsinfeasible. What then are the enforceable obliga-
tions of the familyaspirantswho do commit to collaborate? By analogy to
the commercial context,each partyis free to abandon the relationshipat
any time without facing any legal consequences. However, the initial
commitment implies an enforceable obligation of family fidelityand
loyalty during the period of ongoing collaboration.121On this basis,
evidence that one of the parties was pursuing another familial relation-
ship during the collaboration or selfishlyappropriating shared resources
gives rise to an enforceable claim for the value of any investmentsthat
injured parties have made in reliance on the commitment.122
1969) (finding no conduct-based agreement whereparties'conductdid notclearly indi-

catemutualagreement); see also,e.g.,Cont'lForestProds.,Inc.v.Chandler SupplyCo.,
518 P.2d1201,1205(Idaho 1974) (finding bindingquasi-contractual obligationthough
declining to findimplied-in-fact contract).Fordiscussion, see RobertE. Scott& JodyS.
Kraus,Contract Law and Theory9 (5thed. 2013). Some courtsand legislatures have
required thatcontracts between cohabitants be written. Ellmanetal.,supranote52,at943
(describing writing requirement insomestates).
120.Theuniquefeature ofcollaborative contracts isthattheycombine bothlegaland
normative elements. The formal contractis limited toenforcement oftherelianceinvest-
mentsthatparties havemadeinthecommitment tocollaborate. See Gilson,Sabei& Scott,
Braiding, supranote14,at 1379-82(discussing enforcement offormal andinformal con-
tracts);infranote121 (citingexampleof breachof collaborative contract in
resulting
.
liability)
121. Thesecontracts relyon low-powered enforcement techniques thatcoveronlythe
commitment to collaborate,
without controlling thecourseor theoutcomeofcollabora-
tion.Thismeansthatdefection fromthecommitment - say,bycheating on theexclusive
commitment to careforeachother - wouldonlyentitle theinjuredparty to recoverher
reliance costsas measured byinvestments todatein thecollaboration andanyopportuni-
tiesforegone. Fora commercial exampleofthekindofcheating on thecommitment that
createsliability and a discussion of thelimitedremedies see MedinolLtd.v.
available,
BostonScientific Corp.,346F.Supp.2d 575,591-600,625-27(S.D.N.Y. 2004).
122. Thislimitedenforcement maybe moreavailableto somenovelfamilies than
others.Courtshaveorderedequitableremedies suchas restitutionandconstructive trust
incasesinvolving financial
claimsbycohabitants. See Salzmanv.Bachrach, 996P.2d1263,
1265-66(Colo.2000) (finding unjust-enrichment claimvalidwhereone cohabitant, with-
outpaying, kepthousethathadbeenconstructed atsubstantialexpensetoothercohabit-
ant); Harmanv. Rogers,510 A.2d 161,165 (Vt.1986) (awarding plaintiffdamagesin
restitution forservicesin operating defendant's storeuntilcohabitation relationship
deteriorated); Ellmanet al., supranote52, at 943-44(discussing howcourtscan find
Family collaborations have both disadvantages and advantages rela-

tive to their commercial counterparts.Family relationships do not lend
themselvesto the kind of hierarchical structurethat motivatesconsensus
in the business setting,where higher levels of management review dis-
putes. On the other hand, the coresidency of aspiring familymembers
and their abilityto monitor one another closely push the parties toward
consensus and reinforce the collaboration in ways that establish trust.
Moreover, the personal nature of the informationshared by each party
creates the potential for reputational harm if that informationis later
disclosed, making abandonment costly.123
Not all collaborative contracts creating familial obligations will be
successful; some parties' relationships, and perhaps some relationship
forms,may simplynot develop into stable interdependent familygroups.
But in those relationships that do mature, understandings among the
members of the polygamous familywill become more complete through
accrued experience as time goes on.124In thisway,the polygamous family
will move beyond collaborative agreements to enforceable understand-
ings about their performance obligations.125Thus, just as parties in the
pharmaceutical industryundertake formalagreements for drug develop-
ment on the basis of information attained during the collaborative-
contractphase, so too may a polygamous familyin a collaborative family
relationship reach formal understandingsabout propertysharing,finan-
cial support,and obligations forchild care. Again, as in the collaborative-
contract phase, these agreements may be understandings implied from
conduct based on duration, shared duties, and other objective proxies
thatarise over time in cohabitation relationships.126
impliedagreement or equitableprincipleswhenparties do nothaveexpressagreement) .

Butifaspiring familiesaredeemedimmoral (as maybe thecasewithpolygamous fami-
lies), courtsmaydeclinetoenforce collaborative
agreements.
123. Personalinformation sharedin thefamily setting maybe embarrassing iflater
disclosed, creatinga situationanalogousto hostageexchange.Scott8cScott,Relational
Contract, supranote76,at 1290-91.
124. See Kyle J.Mayer & Nicholas S. Argyres,
Learning toContract:
Evidencefrom the
PersonalComputer Industry,15 Org.Sci. 394,396 (2004) (finding successive
contracts
between sametwocontracting partners becomemorecomplex overtimeas partnerslearn
howtoaddress contractinghazards).
125. See infraPartIII.C.l (discussing commitment ceremoniesamongpolygamous
that to
groups aspire legal-family status).
126.As PartIII.B explains,thisevolution to enforceable contractstogether with
default rulesbasedon relationship durationcan resolvethedifficult problemofsorting
nonmarital cohabitation One response
relationships. is forthestatetofreely
enforce con-
tracts impliedin factthatprovide formutualsupport andsharedproperty in long-
rights
termunionsunlessparties optout.See Elizabeth S. Scott, Domestic Implied
Partnerships,
Contracts, andLawReform, inReconceiving theFamily 331,331 (RobinFretwellWilson
ed.,2006) [hereinafter Scott,ImpliedContracts] ("Domestic statuscan pro-
partnership
videgreater financialsecurityto dependentpartners in informalunionsthantheyhave
undercurrent law,avoidingtheharshinequity thatcanresult whenone partner seeksto
In this firststage of collaboration, the evolutionary process can

result in an aspiring polygamous familybound by (usually implied) con-
tract to provide each member mutual support and care, with provisions
for the assignmentof responsibilitiesand for the distributionof property
rightsupon termination.Over time, one would expect to find a number
of aspiring polygamous families livingin committed,contractuallybased
relationships.
3. MovingfromIsolatedCollaborations toa SociallyIntegratedCollaborative
Network.- Even as a number of polygamous families establish stable
familyrelationshipsbased on contract,other challenges remain. How do
isolated polygamous families coordinate to overcome collective-action
impediments and ultimatelybecome integrated into the larger social
community?The process that leads firstto association among polyga-
mous families and then to integration serves two functions. At a prag-
matic level, coordination is necessary for the novel familyto begin the
process of pursuing its political goals. Isolated polygamous families are
unlikely to attractpublic attention, gain acceptance, or effectivelycom-
municate their identityas successful families. The formation of associa-
tions among aspiring novel families also facilitatesthe development of
shared social norms and enables these polygamous families and their
agents to signal collectivelytheir identitywith the larger social commu-
nity.127Integration into the broader normative community further
reinforces socially approved behavior and the stability of evolving
relationships.128
a. NormativeIntegrationin Common-Purpose Communities : The Case of
CollaborativeNetworks.- Again we turn to the commercial context to
provide an analogue for how familyaspirants can resolve the problem of
social isolation and forma coherent communitywithcollective goals and
shared norms. Commercial parties in particularindustriesformnetworks
(or informalalliances) in order to enhance mutual collaboration in an
environmentwhere multilateralcooperation produces gains for all mem-
exploittheotherbyenjoying thebenefitsofan intimate

unionwithout incurring financial
obligations.").
127. See infratextaccompanying notes155-161(discussing
scholarship on symbolic
behaviorsemployed byoutsidergroupstofacilitate
cultural . To someextent,
assimilation)
ofcourse,evenisolatedpolygamous families
mayinternalize
norms ofestablished families.
Fora generaldiscussion of theroleof informalnormsin regulating behavior through
anticipationof externalsanctionssuchas shamingor shunning, see JonElster,The
Cementof Society101-07(1989);RobertD. Cooter,Decentralized Lawfora Complex
Economy: TheStructural Approach toAdjudicatingtheNewLawMerchant, 144U. Pa. L.
Rev.1643,1656(1996);Richard H. McAdams, The Origin,
Development, andRegulation
ofNorms, 96 Mich.L. Rev.338,350-51(1997);seealsoScott& Scott,
Relational Contract,
supranote76,at 1288-93(discussingroleofnorms inreinforcing
marital commitment).
128. See KarenS. Cook& RussellHardin,NormsofCooperativeness andNetworks of
inSocialNorms327,328-30(MichaelHechter
Trust, & Karl-Dieter
Opp eds.,2001) (not-
ingpartieshavestronginterest in abidingbytheircommunity's normsso as to avoid
exclusion).
bers in pursuit of their individual business ventures.129These networks

are not aided by formal association (although individual members may
execute bilateral contracts) but are linked informallyby cooperative
norms. Research by organizational sociologists shows how shared norms
evolve and successfullycontrol opportunism and other noncooperative
behaviors in these networkseven as new membersjoin the networkand
othersdrop away.130
A business networkconsists of a number of independent firmsthat
enter a pattern of collaboration designed to achieve the benefitsof co-
operation without formal integration.131Of particular interest for our
example are networksconsistingof a cluster of firmswhose membership
shiftsover time.A useful exemplar is the tech transfernetworkconsisting
of a university/research entity (inventor), a number of biotechnology
companies, large pharmaceutical firms,and venture capital firmsjoined
by theircommon interestin the development of therapeutic compounds
to cure disease.132These diverse entities share a desire to resolve uncer-
taintyover the challenges they face collectively.To a large extent, net-
workenforcementof these interpartyunderstandingsis purelyrelational,
129. See Walter W. Powell,Kenneth W.Koput& LaurelSmith-Doerr, Interorganiza-

tionalCollaboration andtheLocusofInnovation: Networks ofLearning inBiotechnology,
41Admin. Sci.Q. 116,116,119(1996) (arguing "locusofinnovation willbe foundinnet-
works oflearning, rather thanin individual firms"); Powell,Market norHierarchy, supra
note15, at 295 (describing networks as representative of "viablepattern of economic
organization"); infratextaccompanying notes131-133(defining network). Networks
stimulate thedevelopment of norms, creating behavioral expectations thatare internal-
izedbynetwork members andenforced informally byothers. See Walter W.Powell, Inter-
Organizational Collaboration in theBiotechnology 152
Industry, J. Inst. 8cTheoretical
Econ.197,209 (1996) [hereinafter Powell,Biotechnology Industry] (describing networks
inbiotechnology industry as "a kindofmacro-level mutualism" thatis "bothself-maintain-
ing and self-enforcing"); infratextaccompanying notes135-138(notingcooperation
withinnetworks doesnotdependonformal rights andobligations) .
130. See Cook8cHardin, supranote 128,at 328-35 (notingsanctions againstviolation
ofcommunity normsoperate"spontaneously"); see also MichaelHechter8cKarl-Dieter
Opp,WhatHaveWe LearnedAbouttheEmergence ofSocialNorms,in SocialNorms,
supranote128,at394,399-400(reviewing theliterature).
131. HughCollins,Introduction to Gunther Teubner, Networks as Connected Con-
tracts1 (HughCollinsed.,Michelle Everson trans., 2011).Network forms oforganization
sharesome commonelements.Partiesengagein reciprocal, preferential, mutually
supportive actions.The basicassumption of network relationships is thatone partyis
dependent on actionsor behaviors oftheotherand thattherearegainstobe hadfrom
pooling resources to achieve common purposes. As networks evolve,it becomesmore
efficientforparties to exercisevoicerather thanexit.See Powell,Market norHierarchy,
supra note 15, at 303-04 (explainingrelationships between individual unitsin network
forms ofresource allocation).
132.Thesehigh-tech networks havebeenstudied byorganizational
extensively sociolo-
See,e.g.,Powell,
gists. Biotechnology Industry,supranote129,at 197(exploring network-
driven innovation inbiotechnology); Powell,Koput& Smith-Doerr, supranote129,at 116
(same);supratextaccompanying notes105-112(describing collaborative agreements).
relyingon a combination of reputation,repeated dealings, and tit-for-tat

reciprocity.133
What are the factors that cause these biotechnology networks to
form and then sustain themselves?In the context of rapid technological
development, research breakthroughsare so broadly distributedthat no
single firmhas all the capabilities necessaryfor success. Research to pro-
duce further technological advances requires collectivecollaboration
designed to pool the broadly dispersed informationof a large number of
firms.134Thus, periods of rapid change stimulatea varietyof collaborative
behaviors aimed at reducing the inherent uncertainties associated with
novel products or markets through the sharing of private information
that benefitseach firmin its own pursuits.135 Despite the absence of for-
mal rightsand obligations internal to members of the network,the evi-
dence suggests that the forces that govern cooperation are durable, with
trustand cooperation increasingwithparticipationin the network.When
there is recognition of common interestsand a high probabilityof future
association, parties are more likely to cooperate and willing to punish
defectors.136 Cooperation is a continuing strategyrather than a one-shot
calculation; networks use a reputation for cooperation and trustworthi-
ness as a guide to future interaction.137At the level of the network
community,there is a kind of mutualism or normativeintegration.This
community-levelmutualismis both self-maintainingand self-enforcing.138
b. NetworkCollaborationand NormativeIntegrationofNovel Families.-
The research on collaborative business networksofferslessons about how
novel polygamous families can overcome their initial isolation, affiliate
with similar groups with compatible norms, and over time develop and
signal their identitywith the larger community.The key elements in suc-
cessful networkcollaborations are (1) the pursuit of a shared purpose
through exchange of private information,(2) the collective recognition
of the value of individual collaborators' performance, (3) the adherence
to norms of cooperation that advance the collective purpose, and (4) the
133. See Collins,supranote131,at 21-25(discussing evolutionofnormsoftrust and

cooperation thatareenforced .
informally)
134. See Walter W.Powell, NetworksofLearning inBiotechnology: Opportunitiesand
Constraints Associated withRelationalContracting in a Knowledge-Intensive Field,in
Expanding theBoundaries ofIntellectual Innovation
Property: PolicyfortheKnowledge
Society251,252-53(RochelleCooperDreyfuss et al. eds.,2001) (discussingincreasein
relationalcontractinginbiotechnology).
135. See id. at 265-66(discussing advantages of collaboration in rapidlyadvancing
fields).
136. For discussion of waysin whichroutines of cooperation develop,see Robert
Axelrod, TheEvolution ofCooperation 55-69(1984).
137. See Powell,Biotechnology Industry, supranote129,at 207-08(observing firms
developmoreexternal tiesas theygainreputationforcompetent cooperation).
138. See RanjayGulati,Does Familiarity BreedTrust? The ImplicationsofRepeated
TiesforContractual ChoiceinAlliances, 38 Acad.Mgmt. J.85,93-94(1995) (discussing
howreputational considerations impactfirms'potential forfuturealliances).
capacityof outsiders to gain membership in the networkby developing a

prosocial reputation.139 The presence of these elements in successfulnet-
work collaborations supports the prediction that as polygamous families
evolve, theywill form social networksaround their common intereststo
advance theirpurpose of attainingsocial and legal recognition.
In the case of novel families,these networkcommunities predictably
emerge in response to the uncertaintiesassociated with their shared vul-
nerabilityas social and legal "outsiders."140
Consider how a communityof
polygamous families might evolve from the collaborative-contracting
stage discussed above. As the number of familiesincreases, theybecome
aware of similar aspiring families with common interestsand relational
patternsas well as a common purpose of obtaining social acceptance and
legal recognition. They also understand that informal affiliation (and
ultimatelyformal organizations) can provide social support and rein-
forcement of their own relationship goals and assist them in attaining
their social and political goals.141Today, this process likelycan be facili-
tated by the Internet,which provides a low-costmeans to connect and
interactwith other polygamous families.142 The emerging communityis
reinforcedby interactionsand informationsharing that are more exten-
sive and frequent than relations with others outside the community,to
whom polygamous familiesremain outsiders.143
Theory and evidence fromother settingspredict that as a networkof
polygamous families forms and mobilizes in pursuit of their common
interestsand goals, collective family-commitment norms will emerge, in-
cluding norms of cooperation, reciprocity, and The
trustworthiness.144
emergence of shared norms, enforced by the network community,
strengthenseach polygamous family'scommitment to fulfillingfamily
functions,creating a feedback effectthat reinforcesthe norms that iso-
139. See Powell, Koput& Smith-Doerr, supranote129,at 119-24(exploring optimal

characteristics
ofnetworks neededto driveinnovation in biotechnology); Market
Powell,
norHierarchy, supranote15,at 303-06(discussing commoncharacteristics ofsuccessful
resource-allocation
networks).
140. See infraPartIIIA (describinghowgayandlesbiansupport groupsdeveloped in
struggleforlegalprotectionoffamily relationships).
141.Theliterature on socialmovements is alsoinformative here.See infranotes148-
149and accompanying text(discussinginsights offered regardingnormative integration
ofnovelpolygamous families
intosocialcommunity) .
142. See, forexample,Polygamy Lifestyle, http://www.polygamylifestyle.com (last
visitedFeb.4, 2015),whichinvites polygamistgroupstofindothersin theirlocality. Web-
sitessuchas thisavoidtheriskofpublicexposure inthesearchforsimilar groups.
143. See SamuelBowles8c HerbertGintis,The MoralEconomyof Communities:
Structured Populations and theEvolution of Pro-Social Norms,19 Evolution 8cHum.
Behav.3, 7 (1998) (discussinghowpro-social normsdevelopgenerally in groups).Mem-
bersofpolygamous groupsmayinteract withothers butarelesslikelytoshareinformation
abouttheirfamily for
relationships, fearof social and legal See infra
sanctions. PartIII.C.l
(discussingobstaclespolygamous familiesfacewithrespect tonormativeintegration).
144. See Scott,SocialNorms, supranote75,at 1908-12(describing norms ofreciproc-
andfidelity
loyalty,
ity, inmarriage as commitment norms).
lated polygamous families sought to establish through collaborative con-

The normative structureof the networkthus serves the dual
tracting.145
functionsof stimulatingthe emergence of norms of cooperation in rela-
tion to one another as well as reinforcingcommitmentnorms in individ-
ual families. These norms of family fidelityare powerful behavioral
regulators, reinforced through expressions of approval and informal
sanctions such as gossip, shaming, and exclusion.146They are also dura-
ble because theyenhance the willingnessof members of the community
to collaborate to achieve theircommon purpose.147
The final step- the normativeintegrationof novel polygamous fami-
lies into the larger social community and their acceptance as fully
functioning families- is one that is less well understood. Among the
theories that have been offered,the literatureon social movementsoffers
insights about this process, at least as applied to some aspiring family
categories.148Prominent legal scholars have analyzed identity-basedsocial
movements, in which individuals in legally disadvantaged groups have
organized in pursuitof public acceptance, political recognition,and civil
rights.149The marriage-equalitymovement, for example, is part of a
145. Richard McAdams hasdevelopedthemostcomprehensive theory toexplainthe

and
origin regulation ofnorms. He explainsthat,fornormcreation tooccur,theremust
be a consensus within thecommunity on theesteemworthiness ofa target behavior.See
McAdams, supranote127,at358-60(outlining howconsensus mayarise).Ifthereisalsoa
riskofdetection fordeviation fromtheconsensus and a capacity to publicizethedevia-
tion- through gossiporotherinformal orformal means - a normcanarise.Id. at361-64.
Considerable empirical evidencesupports thenotionthatpeerdisapproval is an effective
sanctionagainstdisfavored behavior.See, e.g.,DonnaM. Bishop,Legaland Extralegal
Barriers to Delinquency: A PanelAnalysis,22 Criminology 403,412 (1984) ("Thosewho
havestrongly internalized conventional normstend... to fearthatvaluedpeerrelation-
shipswouldbejeopardized byviolationsofthelaw...."); Herbert Jacob,Deterrent Effects
of Formaland Informal Sanctions,2 L. & Pol'yQ. 61, 72 (1980) ("The relationship
between peerdisapproval ofviolatingthelawand compliance withit is substantialand
consistent.").
146. See Scott& Scott,Relational Contract,supranote76, at 1288-92(discussing
enforcement ofsocialnorms, aswellas effects
ofthesenorms on maritalconduct) .
147. See Gulati,supranote138,at 93-94 (discussing influence of "mechanisms of
socialcontrol" on "formation andmaintenance ofalliances").
148. Sociologists havelongstudiedhowcitizens organizethemselves to pursueoften
transformative socialand legalgoalsthrough socialmovements in contexts as variedas
environmental justice,accesstoknowledge, civilrights,
andanimalrights. In recent years,
manyscholars havefocusedon therelationship between lawand socialmovements. See
infranotes151,154 (discussing processofnormevolution andlawyers' rolein advancing
socialmovements) ; see alsoMichaelMcCann,LawandSocialMovements: Contemporary
Perspectives,2 Ann.Rev.L. 8cSoc.Sci.17,24-35(2006) (examining historical interaction
of lawand socialmovements). For an earlyarticlein thelegalliterature, see Edward
Rubin,PassingThroughtheDoor:SocialMovement Literature and LegalScholarship,
150U. Pa. L. Rev.1 (2001).
149. Scholarshaveanalyzedtheimpactof socialmovements on constitutional and
public-law reform. See,e.g.,Eskridge, Channeling, supranote93,at 491-525(analyzing
dynamic interaction between movements
identity-based andlaw).RevaSiegelhasprobed
theimpactof socialmovements on constitutional culture.See RevaB. Siegel,Lecture,
larger social movement by gays and lesbians to attain equal citizenship.

As William Eskridge explains, collective action was stimulated by the
designation of sexual orientation as a legally salient traitand source of
discrimination.150
Although collective action by aspiring families is the foundation of
their normative integration into the larger society,theory suggests that
committed leaders, or norm entrepreneurs, will play a key role in
mobilization to attain public acceptance.151These networkleaders facili-
tate normativeintegrationby creatingorganizational contextsfor coordi-
nating people and resources and by developing strategiesto utilize the
media and other outlets to spread informationabout the successfulfunc-
tioning of polygamous families.152Given that the ultimate goal of the
Constitutional Culture,SocialMovement andConstitutional

Conflict Change:TheCaseof
theDe FactoERA,94 Calif.L. Rev.1323,1339-66(2006) (analyzing howconstitutional
culture enablessocialmovements to proposealternativeunderstandings ofconstitutional
tradition); see alsoJackM. Balkin& RevaB. Siegel,Principles, Practices andSocialMove-
ments, 154U. Pa. L. Rev.927,931-33,943-50(2006) (explaining howsocialmovements
can resultin challenges to legitimacy of customary practicesas inconsistent withlong-
standing principles). Fordiscussion oftheimpactofsocialmovements on statutory and
constitutional reform,
civil-rights see LaniGuinier 8cGeraldTorres, Changing theWorld:
NotesToward a Demosprudence ofLawandSocialMovements, 123YaleL.J.2740,2796-
2804(2014).
150. Eskridge, Channeling, supranote93,at434-35.Eskridge explains howurbaniza-
tionpromoted consciousness raisingamonggays,reducing thecostsofcollective action.
Id. at461-62.
151. Boththesocialmovement andothersociological literaturesmakethispoint.See
Rubin, supra note 148,at 28-32 (describingkey roleof movement leaders inmobilization
and information dissemination); see also MalcolmGladwell, The TippingPoint60-62
(2000)(describing "mavens," normentrepreneurs wholearna greatdealaboutemerging
normsand thensharethatknowledge withothers, thusserving to spreadinformation
widely at lowcost);RobertC. Ellickson, The Market forSocialNorms, 3 Am.L. 8cEcon.
Rev.1, 10 (2001) (describing influentialopinionleadersas "moralentrepreneurs").
Gladwell arguesthatmavens playa keyrolein spreading fads,fashions, and (byimplica-
tion)norms. Gladwell,supra,at60-62.Theseleaderscanorganize mobilization. See infra
note152(outlining resources leveraged byleadersin mobilization efforts).Theycanalso
generate normcascades,a processofrapidnormchange.See RandalC. Picker, Simple
Gamesina Complex World: A Generative Approach totheAdoption ofNorms, 64 U. Chi.
L. Rev.1225,1282-88(1997) (concluding imposition of superiornormbyactorcan
destabilize existingnorms andtrigger normcascade);CassR. Sunstein, On theExpressive
Function ofLaw,144U. Pa. L. Rev.2021,2035-36(1996) [hereinafter Sunstein, Expres-
siveFunction](observing potential of newlydisseminated information to inducerapid
shiftsinnorms); seealsoLawrence Lessig,SocialMeaning andSocialNorms, 144U. Pa. L.
Rev.2181,2185-86(1996) (explaining "snowball"effectin evolution ofnormsandargu-
ingrateofnormchangeaccelerates as meaning andcostsofobeying normarealtered);
Cass R. Sunstein, SocialNormsand SocialRoles,96 Colum.L. Rev.903,909 (1996)
[hereinafter Sunstein,SocialNorms](arguing socialconditions
existing canbe altered by
changing background norms) .
152. See Rubin, supranote148,at28-348cn.61(describing roleofcommitted leaders
in mobilizing resourcesand people to createa socialmovement). Rubindescribes
resources useful inmobilization expansivelytoincludesalientevents(theStonewall riots),
courtcases,andmediacoverage, as wellas money andfunds. Id. Theuseofmediatodis-
polygamous-family group is legal recognition,and that some level of pub-

lic acceptance is a predicate to attaining that goal,153it seems likelythat
norm entrepreneurs in this context will organize formal interestgroups
and use legal tools in pursuit of the community'sgoals. Predictably,law-
yersoftenwill performthe functionof norm entrepreneurs.154
Scholars studyingcultural change shed furtherlight on the social-
integration process, documenting how outsider groups, once affiliated,
can signal their identitywith and become assimilated into the larger cul-
tural community.155 The theoryof identitysignaling developed by econo-
mists studyingchanging social behaviors seems to fit the evolutionary
process by which novel families become integrated into the larger soci-
ety.156Researchers have studied how cultural conventions and behaviors
function as symbolsof identity,communicating aspects of individuals or
groups to others in the social world.157Normative behaviors gain mean-
penseinformation is a keystrategy ofsocialmovements. See McCann,supranote148,at

24 (finding socialmovements are "farmorepronetorelyon communicative of
strategies
information disclosure andmediacampaigns"). TodaytheInternet isan important source
ofinformation dissemination. See supranotes140-143and accompanying text(describ-
inginformational websites promoting polygamy anddispelling myths) .
153. See Klarman, JimCrow,supranote97, at 367 (describing backlashto Brown v.
BoardofEducation) .
154. Causelawyers haveplayeda keyrolein pursuing andimplementing legalchange
generated bysocialmovements aimedatadvancing racialandgenderequality andgayand
lesbianrights. See McCann,supranote148,at 25-26 (discussing roleof lawand legal
activism in advancing socialmovements); AustinSarat8cStuartScheingold, WhatCause
Lawyers For,and 7o,SocialMovements:
Do AnIntroduction, inCauseLawyers andSocial
Movements 1, 1 (AustinSarat& StuartScheingold eds.,2006) (arguingcauselawyers
playedpivotal roleinmovements forsocialchangeoverlasthalfcentury) .
155. SeeJonahBerger, IdentitySignaling, Social Influence, and Social Contagion, in
Understanding PeerInfluence inChildren andAdolescents 181,183(Mitchell J.Prinstein
8cKennethA. Dodge eds.,2008) [hereinafter Berger, Identity Signaling]("[C]ultural
tastes
gainmeaning, orsignalvalue,through theirassociation withgroups, orsimilar types
ofindividuals."). The recenthistory ofchanging publicattitudes toward gayand lesbian
relationships provides an exampleofthisprocessofnormevolution and corresponding
socialchange.See infraPartIII.A (outlining roleof same-sex couples'affiliations with
andreligious
social,political, networks inpropelling evolution ofnorms) .
156. See, e.g., Berger,Identity Signaling, supranote 155, at 182-84 (describing
identity-signalingtheory as explaining divergence amongsocialgroups);see alsoEricA.
Posner, LawandSocialNorms18-22(2000)(defining signalsas actionsintended todistin-
guish"types" ofpeople);EricA.Posner, Symbols, Signals, andSocialNormsinPolitics and
Law,27J.LegalStud.765,797 (1998) ("[A]nimportant classofsocialnormsarisesfrom
signaling gamesinwhichpeoplechooseactionsthatsignalloyalty tostatesandcommuni-
ties.").Theseversions ofsignaling theory all drawon theworkof MichaelSpence.See
generally A. MichaelSpence,Market Signaling:Informational Transfer in HiringandRe-
latedScreening Processes (1974)(discussing market signaling).
157. See, e.g.,MaryDouglas8cBaronIsherwood, The Worldof Goods:Towardan
Anthropology ofConsumption 36-47(1979) (discussing use ofgoodsas cultural conven-
tion);MichaelR.Solomon, TheRoleofProducts as SocialStimuli: A Symbolic Interaction-
ismPerspective, 10J.Consumer Res.319,319 (1983) (focusing on "consumers' relation-
shipswiththeobjectstheyproduceand purchase"and arguing"significant portionof
consumption behavior isactualsocialbehavior - andviceversa").
ing, or signal value, through theirassociation withgroups or similartypes

of individuals. The normativeidentitythat polygamous families or other
novel families signal is based on their familyrelationships of long-term
commitmentto mutual care and support; thus, the essential elements of
this identityare similar to those of established families.158The societyat
large associates successful commitment norms with established families
and comes to recognize that polygamous families successfullyperform
familialfunctions,although their behaviors and identitymay not mirror
preciselythose of marital families.159 This process of identitysignaling is
advanced in part by advocates (and perhaps litigationstrategists)who, by
servingas norm entrepreneurs,accelerate the process of social change.
As the cohort of novel families grows,public awareness of their identity
increases as well, and if the identitysignaling is successful,160
a cascading
process of changing social attitudesfollows,culminating in public toler-
ance or acceptance.161
Research on the mechanisms that produce social change also aids in
formulatingpredictions about this last phase of norm integration.Jonah
Berger documents a process of change occurring when an idea, cultural
view, or attitude spreads contagiously through continuous observation
158.William Eskridge describes a politicsof recognition through whichan identity

groupsignals to the majoritythat the legally
stigmatized traitis simplybenignvariation
a
andshouldnotbe thebasisoflegaldiscrimination. See Eskridge, Channeling, supranote
93,at467-78(detailing lifecycleofidentity-based socialmovements). Thisequality-based
claim(thatnovelfamilies aresimilar toestablished families)is inherently integrative.See
id.at487-88(" [T]heassurance gamefeature neededfora socialmovement totakeofffor
thelonghaulwasmucheasiertoachieve whenthegoalswereintegrationist.").
159. Oncetheseoutsiders adoptthefamily-behavior signal,thenormative meaning of
a familyitselfmay evolve.In other words, as the socialchange occurs, theset of socially
accepted familybehavior expandstoincludetheuniquemeansofcementing commitment
thatthenovelgrouphasdeveloped. See Berger, IdentitySignaling, supra note155,at 183-
84 (arguing whenoutsiders use group'sidentity signal,signal'smeaningcan change).
ThomasStoddard arguedthatextending marriage rightstogaysandlesbians wouldposi-
influence
tively themeaningof marriage. See Stoddard, supranote59, at 13 (arguing
extending marriage rightstogayscanhelpdivest marriage ofitspastsexisttrappings) .
160. Ofcourse,itis possiblethatthesignaling willnotbe effective, andpublicaware-
nessofpolygamous familieswillleadtoalarmaccompanied bypublichostility.
161. See Ellickson, supranote151,at 26-27(reviewing literature on normcascades
and tipping points);see also McAdams, supranote127,at 365-72(describing feedback
cyclein which"[p]eoplecompet[e]to be 'wellthought of' comparedto others"and
"lead[]thewayto newandhigherlevelsofnormcompliance"); Sunstein, SocialNorms,
supranote151,at909 ("Normbandwagons occurwhensmallshifts leadtolargeones,as
peoplejointhe'bandwagon'; normcascadesoccurwhentherearerapidshifts innorms.").
Economists havestudied similar phenomena as well,focusing on bandwagon herd
effects,
behavior,andinformation cascades.See,e.g.,Abhijit V.Banerjee, A SimpleModelofHerd
Behavior, 107 Q.J.Econ.797,798 (1992) (discussing herdbehavior and defining it as
"everyone doingwhateveryone elseisdoing,evenwhentheirprivate information suggests
doingsomething quitedifferent");SushilBikchandani, DavidHirshleifer 8cIvoWelch, A
Theory ofFads,Fashion, Custom, andCultural Changeas Informational Cascades,100J.
Pol.Econ.992,994 (1992) (arguing informational cascadesexplainfads,fashions, booms,
andcrashes) .
and word of mouth.162This happens typicallywhen the idea is associated

with images or narratives linked to "high-arousal emotions" such as
anger or love163and when the behavior is observable and public.164Iden-
titysignaling by novel familiescan have thiseffect.For example, consider
the narrativesof committedgay and lesbian couples, oftenwithchildren,
that became familiarduring the campaign to extend marriage rightsto
these couples.165Berger's research suggests that these positive images
may have played a key role in generating relativelyrapid changes in pub-
lic attitudes.
The process of identitysignaling does not proceed seamlessly: It
imposes costs on polygamous families,especially in the earlyperiod. Suc-
cessfulsignaling and normativeintegrationdepends on families' willing-
ness to sacrifice some privacy,as public familiarityand acceptance can
only happen if polygamous families are open about their relationships.
To varyingdegrees, identitysignaling exposes the familyto the risk of
negative public reactions,ranging fromcuriosityand skepticismto hostil-
ity and outrage. For some novel families (including polygamous fami-
lies), the costs are likely to be high, including the risk of criminal
sanctions for living together as families.166
Predictably,aspiring families
will be reluctant to incur onerous costs. In this situation, some exoge-
nous shock that increases costs on continuing their closeted lives may
serve as a catalyst,motivatingnovel families to bear the initial costs of
living openly.167Over time, as the public becomes familiar with the
nature of novel familyrelationships, the hope is that acceptance grows
and hostilitydissipates.
* * *
Although our model proceeds in three discrete stages for analytical

purposes, the collaborative process through which polygamous families
seek to gain public acceptance overlaps substantiallywith the group's
effortto attain legal recognition. First,as discussed earlier,novel families
162. See JonahBerger, Contagious 21-25 (2013) ("Theseare thesix principlesof

contagiousness: products orideasthatcontainSocialCurrencyandare Triggered,
Emotional,
Public,PracticallyValuable
, andwrapped intoStories").
163. SeeJonahBerger& Katherine L. Milkman,WhatMakesOnlineContent Viral?,
49J.Marketing Res.192,197 (2012) (arguing content evoking emotions
high-arousal is
moreviralthanothercontent) .
164. Fora discussion oftheroleofsocialinfluence, seeNicholasA. Christakis
& James
Fowler, Connected: The Surprising PowerofOur SocialNetworks and HowTheyShape
OurLives3-15(2009).
165. See infra PartIII.A(highlightingevolution
ofgayandlesbianfamily relationships
from outsider status
tofullintegration andlegalrecognition).
166. See infra PartIII.A.1 (discussing
howantisodomy lawsinhibitedgaycouplesfrom
livingtogether pre-Lawrence).
167. See infraPartIII.A.2(discussing howexogenous shockofAIDScrisisfunctioned
as a catalyst forgays'comingout and advocating forlegalprotection of theirfamily
relationships).
and their advocates pursue their legal goals in part by signaling their
identitywithestablished families,assuring the public about the qualityof
their relationships. Second, as discussed below, regulators are likely to
extend legal protectionsthroughan incrementalprocess that allows state
actors to gain informationabout the aspiring familycategory.The incre-
mental extension of legal rightshas feedback effectsthat also contribute
to public familiarityand acceptance, while at the same time minimizing
backlash that mightfollowfromfull recognition of unfamiliargroups.168
Moreover,legal recognition in itselfpowerfullysignals legitimacythat,in
turn,contributesto growingpublic acceptance of novel families.169
ProblemThroughCollaborative
4. ResolvingtheVerifiability Regulation.
a. Legal Certificationto Guard Against UncertainRisks.- Even if the
novel familycategorygains social tolerance or acceptance (and success is
certainly not guaranteed), the state independently has an interest in
verifyingthat these groups will function effectivelyfor all members
before it certifiesthe categoryas a legal family.But here the state faces a
significantinformation problem: Family behavior is private and thus
resistseffortsto verifythe quality of familyfunctioning,especially when
(as with polygamous families) there is little by way of historical experi-
ence. Some typesmay appear to perform familyfunctionssatisfactorily;
however,they may create latent risks that affectsome members but are
not immediatelyapparent. For example, polygamous-family groups may
appear to provide care and support to members harmoniously,but ex-
perience over time might reveal maintaining equality norms
difficulties
and avoiding exploitation.170(Indeed, it is plausible that groups lacking
the qualities of well-functioningfamiliesmight organize to pursue social
acceptance and legal recognition through fraudulentmeans, a stratagem
168. See infratextaccompanying notes175-178(discussing incremental approach);

see alsoKlarman, Closetto Altar, supranote96,at 145-55(describing backlash to early
casesextending marriage to
rights gaycouples) .
169.Thisinteraction has beenwidely studiedbyscholarsexamining theexpressive
function ofthelaw.Larry Lessighasshownthatthestate, ifsensitivetothesocialmeaning
of particular behaviors, can stimulate desiredchangesthrough legal expression. See
Lessig,supranote151,at 964-73.CassSunstein extendedLessig'sanalysis byanalyzing
howlegalregulation canaffectnormative structuresaswell.See Sunstein,Expressive Func-
tion,supranote151,at 2026-35(discussing interactionbetween expressive lawandsocial
norms).Sunstein suggested thatantilitteringstatuteshavesuchan expressive See
effect.
id. at 2030,2032-33.Thesechangesin preferences and valuesoccurbecausethesocial
meaning ofthesebehaviors hasbeenchanged. See id.at2031-33.Thereafter, a normcas-
cadecan resultthrough thestimulation ofindividualpreferences beingchangedbythe
legalregulation. Id. at2032-33;seealsoMcAdams, supranote127,at355-66(arguing law
canchangebehavior bysignalingconsensus thatis onlydimly perceived bylarger commu-
nity);infra textaccompanying note249 (reemphasizing expressivefunction oflaw).Fora
review andcritique ofthisliterature,see RobertE. Scott,The Limits ofBehavioral Theo-
riesofLawandSocialNorms, 86Va.L. Rev.1603,1623-30(2000).
170.Theriskofcoercion andexploitation maybe as greatindyadic relationships.
that time likelywould reveal.171)Time might also reveal that conjugality

serves a key bonding function for unrelated adults and, as a
consequence, multigenerational and voluntarykin groups may turn out
to be fragile, therebyjeopardizing dependent members.172To be sure,
these particular risks may not materialize, but the general point is that
the state will demand sufficientinformation to mitigate latent risks as
part of the process of determining whether a novel family category
should receive familystatus and the societal benefitsand resources that
follow.173The networkof polygamous families,in turn,has an interestin
providing informationthat assures the state that this category meets the
state's expectations forfamilyfunctioning.
Several challenges may arise. Some aspiring groups may deserve
legal recognition as fulfillingfamilyfunctionsbut be difficultto evaluate
because theyare based on unconventional commitmentsor appear to be
continuing the process of evolution. Other groups may face unusual
political obstacles, despite their apparently effectivefunctioning, that
impede full recognition as families. Thus, the state must seek to under-
stand the context in which the aspiring familygroup functions;in doing
so, lawmakers are likely to proceed with caution, perceiving that once
rightsare extended, theywill be difficultto withdraw.For some groups,
an iterativeprocess may be appropriate: one in which the legal rightsand
responsibilitiesare assigned incrementally,allowing the state to monitor
familyfunctioningover time in the process of certifyingfamilystatus.174
For other aspiring family categories, particularlythose that are truly
novel, a collaborative approach may also require joint effortsby the state
and the group to establish a standard consistingof best practices that are
policed informallyby the networkitself.
b. An IterativeApproach.- The state can verifyand certifythe family
status of an aspiring family type in several ways, including judicial
recognition on constitutionalgrounds, state legislativeenactments, and
administrativeregulation. For some familygroups, such as cohabiting
171. Severalreaderssuggested thispossibility

as a component ofthepolitical-economy
Forexample,
story. fundamentalist could
polygamists influence publicopinionbymasking
theirundesirablequalitiesandfalselysignalingthattheirrelationships
werereformed.
172. Ofcourse,nonconjugal unionsavoidthedestabilizingthreatofinfidelity.
173. See infraPartIII.C (discussingpossiblepathstorecognitionforpolygamous and
nonconjugal .
relationships)
174. Severalscholars,oftendrawing on theexperience in someEuropeancountries,
havearguedthatthepathto marriage equalityforgaycouplesis a step-by-step
process.
William Eskridgehasarguedthatan incremental approachto theextension ofmarriage
rightsforgaycoupleswas important to increasepublicacceptance.See WilliamN.
Eskridge,Jr.,EqualityPractice:CivilUnionsand theFutureofGayRights 115-18(2002)
(arguing legalprocessis meansto changing
step-by-step . Fora contrary
publicattitudes)
view,see ErezAloni,Incrementalism, CivilUnions,andthePossibilityofPredictingLegal
Recognition ofSame-Sex Marriage, 18DukeJ.GenderL. & Pol'y105,106(2010)(arguing
incremental theory'spredictions havenotbeen borneoutin practiceand incremental
theoryoverlookssignificant differences
between EuropeandtheUnitedStates).
couples or (perhaps) multigenerationalgroups, the risk of exploitation

and instabilitymay be relativelymodest because the aspiring familyis
modeled on a familiarform. For these groups, full familystatus can be
attained through a straightforwarditerative process, with rights and
obligations extended to the group incrementally.175Through this
collaborative process, state actors acquire informationinformallyabout
the quality of the familycommitmentsover time, allowing the state to
verifythat family functions are being performed satisfactorily.176 For
example, if the state creates a familystatuswith some relationship rights
and privileges,it can acquire informationcomparing dissolution rates to
divorce rates.177Moreover, the iterative process may have a feedback
effect,with the limited familystatus expediting public acceptance of the
novel group as "real" families.Eventually,the state's monitoringfunction
recedes as the new familycategory stabilizes and ultimatelyattains full
legal recognition. This iterativeprocess provides greater certaintyfor the
parties and for third parties dealing with the new families and enhances
the privacyand freedom of individual members of the recognized cate-
goryto pursue theirrelationshipgoals withoutexternal monitoring.178
u . - For
c. JointMitigationofRisks Through BestPractices"Collaboration
novel groups that pose substantial informationaland/or political chal-
lenges, the state may require a more formalcollaborative process in con-
junction with an iterativeapproach. For polygamous-familygroups, for
example, uncertaintyis high because there are no models for family
behavior or tested responses to the possible risks that may arise from
certificationof the group. In this case, the state may turn to a more
interactivecollaboration to enunciate and enforce "best practices" that
mitigate those risks. Here, the goal is to encourage common effortsby
the polygamous families themselvesto create binding commitmentsthat
minimize the riskof perceived harm.
Once again we invoke a commercial analogue - one that at first
blush may seem quite remote from the realm of novel families. Leafy
175. Fora discussionofthekeyfeatures ofpublic-private see Charles

collaborations,
F. Sabel8cWilliam F. Simon,Contextualizing Regimes: as a Response
Institutionalization
totheLimits ofInterpretationandPolicy Engineering, 110Mich.L. Rev.1265(2012).
176. See infraPartIIIA fora discussion of how relationship rightshave been
extended incrementallytogayandlesbiancouples, culminating intherighttomarry.
177. See infraPartIII.Afora discussion of theiterativeprocessthrough whichgay
couples obtained marriage-equalityrights,first
through limited laws
domestic-partnership
andthencivil-union statutes.
178. MaryAnneCasearguesthatthelicensing ofmarriage couples'privacy
protects
fromgovernment intrusioninwaysnotavailable tocouplesin domestic partnerships.See
Mary AnneCase,Marriage Licenses, 89 Minn.L. Rev.1758,1772(2005) [hereinafter Case,
Marriage Licenses](arguing"marriage in manyrespects licensesgreater and
flexibility
lessstateintrusionintofamily Oncea couplemarries,
life"thanitsalternatives). theycan
haveseparate bankaccounts, liveapart,etc.,whereas domestic mustprovide
partners evi-
denceof marriage-like behavior to establishtheirstatus.Id. at 1772-76.Novelfamilies
wouldenjoythesamefreedom oncethenewcategory isrecognized.
green vegetables pose particular risks because they are often eaten raw
and, today, often sold in "salad mixes" that mingle greens picked in
different locations, thus expanding the possibilities for cross-
contamination.179Following an outbreak of illness, California designated
an authorityto establish safetystandards or "best practices" for the farms
from which member handlers buy.180These standards require growers
and processors to identify hazardous control points and report the
measures undertaken to mitigate the hazard.181Inspectors from the
California Department of Food and Agriculturemonitor compliance,182
but the ultimate sanction for noncompliance is suspension or withdrawal
of a recalcitrantmember's right to use a service mark, and thus tempo-
raryor permanent exclusion fromthe industryis enforced informally.183
The success of this "best practices" approach offersa regulatorypro-
totypefor the mitigationof harms from legal recognition of some cate-
gories of novel families where a more formal process of information
sharing and monitoring is warranted. Such a collaboration has four key
elements: (1) creation of a formal association of aspiring families in the
high-riskgroup, (2) information exchange between the group (or its
representatives)and the state to establish best practices, (3) monitoring
by the state to ensure that the group complies with those practices, and
(4) informalenforcementby the association through shaming or exclu-
179. Gilson,Sabei& Scott,Contract and Innovation, supranote16,at 211-12.All

actorsinthefoodsupply chainhavean interest inprotecting theirmarket bydeveloping a
regimeofpractices thatreducethechancesforcontamination and limititseffect.The
as theprotector
state, ofpublichealth, hascomplementary interests.
Id. at212-13.
180.The authority wasdelegatedto a Boardestablished by LeafyGreenProduct
the
HandlersAgreement (LGMA).Stateof Cal. Dep't of Food & Agrie.,California Leafy
GreenProducts HandlerMarketing Agreement 7-8 (effectiveas amendedfromMar.5,
2008)[hereinafter California Marketing Agreement] , available
athttp://www.cdfa.ca.gov/
mkt/mkt/ pdf/CA%20Leafy%20Green%20Products%20Handler%20Agreement.pdf (on file
withtheColumbia LawReview) . LGMAisgoverned bya thirteen-member board,chosenby
thestateSecretary ofAgriculture fromnominations bythemembership. Twelve mustbe
representativesofthehandler members oftheorganization; thethirteenth issupposedto
represent "thepublic." Id. at3.
181. The LGMAadditionally requires each handlerto maintain recordsthatpermit
identification
ofthefarmandfieldfrom whichallcomponents ofitsproducts in
originate
casecontamination islaterdiscovered. Id. at6; seeCal.LeafyGreenProds.HandlerMktg.
Bd.,Commodity Specific Food Safety Guidelines fortheProduction and Harvest ofLet-
tuceand LeafyGreens13 (Aug.2, 2013),availableat http://www.lgma.ca.gov/wp-con
tent/uploads/2014/09/California-LGMA-metrics-08-26-13-Final.pdf (on file with the
Columbia Law Review)(includingprovision imposingrecordkeeping requirements on
signatoryhandlers) .
182. CaliforniaMarketing Agreement, supranote180,at9.
183.The handlermembers, in turn,commit todealonlywithfarms thatcomply with
thestandards. Id. Thereareotherprivate standard-settingandcertification regimes,such
as GlobalGAP (for"goodagricultural practices"), an organization formed bymajorEuro-
peanretailers, and theGlobalFoodSafety a private
Initiative, international organization
thatassessescertification regimes in accordance witha set of meta-standards. Sabel&
Simon,supranote175,at 1284.
sion.184In the case of polygamous families, risks that might attend the
recognition of multiple-partyfamily types include the exploitation of
minors and other "minority"interestsor harms caused by instabilityof
the family relationships. Problems such as these can be addressed
through a collaborative process in which the aspiring families provide
informationto the state about the context in which theyfulfilltheirfam-
ilyfunctions,the familiesand the state collectivelyestablish benchmarks
that embody their expectations for the support and care of all family
members, and the families collectivelyseek to promote compliance with
the benchmarks.185 Through mechanisms such as this, the state, as it in-
crementallyextends rights,can certifywell-functioningfamilycategories
subject to a regulatoryscheme tailored to their needs but serving the
general goals of facilitatingwell-functioningfamilyrelationships. Ther-
eafter,as with marriage, deference to familyprivacywill translate into
minimal state involvementfor any individual familythat is licensed, so
long as the familyis intact.
d. The LicensingofIndividual Families. - Once a novel familytype is
certified,a registrationor licensing system,analogous to marriage licens-
ing, would provide a means bywhich individual familiesin the novel type
can obtain formal status. A set of simple, clear rules can be used to
authorize licensing of all families that qualify under the certified
category.A registrationprocess has a number of benefits: It provides
public acknowledgment of qualifying family categories, signaling that
recognized relationships fulfill important social functions. Further,
registration embodies commitment in a concrete form, reinforcing
family-commitment norms.186Licensing is also a means by which the
legal obligations and rightsthat attend the statusare clearlydefined and
assigned, providing securityand certaintyto familymembers through
postdissolution enforcement with modest administrative and judicial
costs.187For example, if formalfamilystatusconferson polygamous fami-
lies a rightto share propertywithother familymembers, registrationper-
mitsindividual familiesto avoid difficultproof problems that are likelyto
accompany contractual enforcement.188 Registrationreduces the riskthat
184. See Gilson,Sabei& Scott,Contract and Innovation,supranote16,at 210-13

fourelements
(illustrating incontext ofCaliforniaLGMA).
howpolygamous
185. PartIII.C.l discusses groupscan adopta best-practices regula-
tory framework.
186.The publicsignaloffamily status socialnormsbyresolving
reinforces anyuncer-
taintythecommunity mayhavehadaboutthenature oftherelationship.
187. Licensing avoidserrorand administrative coststhatregulators facewhenthey
seektoevaluate individuallytheclaims of informalaspiring It
families. alsoprotectsfamily
See infra
privacy. note188(discussing families
issuesaspiring faceinsecuring rights).
188. See Scott,ImpliedContracts, supranote 126,at 332-37 (describing difficult
proofproblems faced by partnersin informal unions seeking to enforce contractual
understandings) ; see alsoIraMarkEllman,"Contract Thinking" WasMarvin1 s FatalFlaw,
76 NotreDameL. Rev.1365,1367-73(2001) [hereinafter Ellman,Contract Thinking]
exploitative individuals will succeed in enjoying the benefits of family

relationships while avoiding reciprocal obligations (as sometimes hap-
pens in informalunions).189Finally,and importantly,a formal licensing
process protects familyprivacyby avoiding intrusiveinquiries to deter-
mine whetheran individual familyembodies the qualities thatjustifyfam-
ilystatus,another cost that informalfamiliesmust bear.190
* * *
One challenge to the proposed iterativeapproach is that the evolu-

tionaryprocess towardfull legal protection could have the effectof limit-
ing the options for familyformation if fullylicensed families supplant
other less comprehensive forms. In this vein, marriage critics have
expressed concern that same-sex couples will be channeled into marriage
as an exclusive status that crowds out other formsof legal protection.191
This risk must be acknowledged, but, as suggested below, the iterative
approach is not necessarily incompatible with policies of recognizing
more limitedfamilyrelationships.192
(arguing contract analysis

inappropriate todecideissuesrelatedtointimate relationships,
including division ofproperty).
189. Ellman, Contract Thinking, supranote188,at 1370-73.TheAmerican LawInsti-
tute(ALI) domestic-partnership statuscreatesmarriage-like obligations between longtime
cohabitants.Am.LawInst.,supranote21,at §§ 6.04-.06.However, American stateshave
not adoptedeitherthe Principles or the domestic-partnership status.See MichaelR.
Clisham& RobinFretwell Wilson, American LawInstitute's PrinciplesoftheLawofFamily
EightYearsAfter
Dissolution, Adoption:GuidingPrinciple or Obligatory Footnote?, 42
Fam.L.Q. 573,589-95(2008) (describing failure ofstatestoadoptALIDomestic Partner-
shipPrinciples). SomeEuropeancountries, aswellas Canada,Australia, andNewZealand,
havesoughttomitigate theseproblems byexpanding legalprotection tocohabitants and
theirchildren.See Polikoff, Beyond Marriage, supranote1,at 111-20(describing cohabit-
ants'legalrights inthesecountries).
190.Whenparties in nonmarital families seeklegalrecognition oftheirfamily status,
an individualized inquiryoftenrequires partiesto provide decisionmakers withintimate
information about theirrelationship, livingarrangements, and intentions. See, e.g.,
Braschiv. StahlAssoes.Co., 543 N.E.2d49, 55 (N.Y.1989) (supporting judgment with
evidenceofparties'livingarrangements overtime,dailyschedules, jointbankaccounts,
andlife-insurance-policy beneficiaries,in additionto othertypically private information).
In contrast,theacquisition of a marriage licenseautomatically confers therights and
obligationsoffamily statusandallowsthegroupfreedom toarrange theirlivesas theywish
without oversight and monitoring bythestate.See Case,Marriage Licenses, supranote
178,at 1765,1771-73(discussing freedom enjoyedbymarried couples).Maritalobliga-
tionsare notformally enforced in intactrelationships, but theyprovidethebasisfor
property division andsupport after divorce. See Dukeminier etal.,supranote48,at 393-
95 (discussingproperty allocation and alimony followingdivorce).Presumably thesame
approach wouldbe appliedtootherregistered families.
191. See,e.g.,Katherine M. Franke, Op-Ed.,Marriage Is a MixedBlessing, N.Y.Times
(June23, 2011),http://www.nytimes.com/2011/06/24/opinion/24franke.html (on file
withtheColumbia LawReview) (arguing NewYork's recognition ofsame-sex marriage may
leadtoabolition ofdomestic-partnership status) .
192. Fora discussion ofoptionsforlimited familystatus,suchas "designated benefi-
ciary"agreements underColoradolaw,seeinfra PartIII.C.2.b.
III. From Theory to Practice: The Way Forward for New Families
The model developed in Part II describes in stylizedterms the dis-

crete stages of an evolutionaryprocess by which novel familygroups can
use collaborative techniques to overcome the uncertaintythat otherwise
impedes legal recognition.This Part turnsto real-worldcontextsin which
the stages of relational novelty,isolation, and nonverifiability are largely
overlapping and thus less sharply delineated. Part III.A shows how the
movementtowardrecognition of marriage rightsforgay and lesbian cou-
in
ples has successfullydeployed collaborative strategies an evolutionary
process that is broadly consistentwith the model described in Part II.193
Part III.B examines, in contrast,the somewhat puzzling failureof families
based on informal cohabitation to attain legal recognition. We suggest
that the complexity and variety of these relationships pose daunting
information problems that have inhibited collaborative affiliation,
normative integration, and legal recognition. Part III.C focuses on
relationshipsnot involvingdyadic intimatepairs, including polyamorous,
multigenerational, and voluntary kin groups. These aspiring family
groups cannot be measured as readily against the template provided by
marriage. Thus, they pose more complex governance issues than does
the standard two-partyunion, and that may create challenges for the
state in evaluatingfamilyfunctioning.The collaborative frameworkdevel-
oped in Part II highlightsboth the challenges and the opportunitiesthat
these trulynovel familyformsface in achieving a legal status.
A. : FromOutlawtoMainstream
Same-SexFamilyRelationships
The modern historyof gay and lesbian familyrelationshipsconforms
roughlyto our account of how a novel familycategoryevolves from out-
sider status to full integration and legal recognition.194Through the
193. Ofcourse,therearemanypossibleaccounts ofthemarriage-equality movement.

lawscholars
Constitutional havefocusedon theimpactoftheLGBTsocialmovement on
culture.
constitutional See,e.g.,Balkin8cSiegel,supranote149,at 948 (explaining how
LGBTsocialmovement challenged settledconstitutional
practices antidiscrim-
as violating
inationprinciple)
; Eskridge,Channeling, supranote93,at 423-25(describing of
politics
recognitionthrough which gays and lesbians (and other identity groups) employ equal-
protectionprincipletogainmajority rights).
194.To be sure,thepathtorecognition ofmarriage rights forLGBTcouplesdoesnot
followthestylized
precisely three-stage processdescribed in thisArticle. Buttheoverall
patternlargelytracks thiscourse. Two landmark Supreme Court decisions dramatically
markthechangein status wedescribe. In 1986,theSupreme Courtin Bowers v.Hardwick
the
upheld constitutionality of a stateantisodomy statute as applied to sexualintimacy
between gaymen.478U.S. 186,189-90(1986),overruled byLawrence v.Texas,539U.S.
558 (2003).Twenty-seven yearslater,in United v. Windsor
States , theCourtstruck down
section3 oftheDefenseofMarriage Acton thegroundthatexcluding same-sex couples
married understatelawfromthefederaldefinition ofmarriage offended thedignityof
133S. Ct.2675,2683-84,2695-96(2013).
theirrelationships.
1980s and well beyond, many (perhaps most) gays were closeted,195hid-
ing their sexual orientation and intimate relationships from family,
friends,and colleagues to avoid harsh social and legal sanctions.196But
even in this hostile environment, couples cohabited in long-term
unions197and developed clear understandings of their mutual obliga-
tions.198Same-sex couples in committed relationships began to execute
contracts to formalize their understandings regarding propertysharing,
support, inheritance, and related issues.199Over time these couples and
their advocates, motivated by a common goal of attaining respect and
legal protection for their relationships, increasingly formed networks
through theirsocial, political, and religious affiliations.200
This movement
contributed to greater openness about sexual orientation, stimulated
media interest, and increased public familiaritywith- and acceptance
ofsame-sex familyrelationships.In recent years,advocates have sought
and won legal recognition of these unions through an incremental pro-
195. See GlennChapman,BeingGayin America: A 50-YearLoveStory, RawStory

(May8, 2013,7:20AM),http://www.rawstory.com/rs/2013/05/being-gay-in-america-a-50
year-love-story/ (on filewiththeColumbia LawReview) (providingtwogayinterviewees'
description ofsocially stigmatized in 1950sand1960s).
lifestyle
196. See,e.g.,Lawrence , 539U.S.at 562 (describing onestate's"statute [thatmade]it
a crimefortwopersons ofthesamesextoengageincertain intimatesexualconduct" but
thatremained in forceas lateas 2003);Bowers, 478U.S.at 193-94(notingas of1986"24
Statesand theDistrict of Columbiacontinueto providecriminal penalties forsodomy
performed inprivate andbetween consenting adults").
197. MaryMendola,The MendolaReport: A NewLookat GayCouples9-10 (1980)
(recounting resultsof 1970ssurveyin whichsixty-seven percentof same-sex-couple
respondents definedtheirmarital statusas "[permanently committed" and elevenper-
centas "[1]ivingwithsomeone");see, e.g.,AnneHull,JustMarried, After51 Years
Together: Activist GayCoupleAcceptsLeadingRole,Wash.Post,Feb. 29, 2004,at Al
(describing lifeofgaycouplewhohadbeentogether foroverfifty
years);Chapman, supra
note195(same).
198. Forinstance, GeorgeChauncey's historyofthemovement describes gaypartners
exchanging vowsin marriage ceremonies performed in the Metropolitan Community
Church inthe1970sand1980s.See Chauncey, supranote19,at91-92.
199. See, e.g., Whortonv. Dillingham, 248 Cal. Rptr.405, 406 (Ct. App. 1988)
(upholding oralcontract between same-sex partners in whichone promised to provide
financial supportin exchangeforemotional supportand householdservices); Posikv.
Layton,695 So. 2d 759, 760 (Fla. Dist.Ct. App. 1997) (upholdingwritten support
agreement between same-sex partners); Anonymous v.Anonymous, No. 121930-2002, 2004
WL396492,at *8-*10 (N.Y.Sup.Ct.Feb.9, 2004) (upholding writtenagreement between
same-sex partners thatdecideddivision ofproperty upontermination ofrelationship).
200. The movement fromisolation to broadsocietalacceptance is generallyseenas
in the1950swiththeMattachine
starting Society,a groupofgaymenin LosAngeles who
wanted tocreatesocialacceptance forLGBTpeople.See C. ToddWhite, Pre-Gay L.A.16-
18 (2009) (tracing founding ofMattachine); see alsoJamesT. Sears,BehindtheMaskof
theMattachine 147-50(2006) (including earlyMattachine members' accounts offound-
ing). The modernLGBT-rights movement is thenseen as havingstartedwiththe
Stonewall riotsin 1969.See SamDeaderick 8cTamaraTurner, GayResistance: TheHidden
History39-40(1997) ("Stonewall marked thebeginning ofsaying'NO' toallforms ofgay
oppression.").
cess, culminatingin the largelysuccessful (and ongoing) effortto obtain

marriage rights.
1. Contractand Commitment. - Throughout the twentiethcentury,
gays and lesbians faced intense public animus. Until quite recently,polls
showed that most Americans thought same-sex intimacywas immoral;201
social and religious conservativesin the 1980s even suggested that AIDS
was God's punishment for sinful behavior.202Some states had criminal
antisodomystatutesaimed at gays,until these laws were ruled unconstitu-
tional in 2003.203Discriminationin employment,housing, and education
was rampant, and gays and lesbians received little protection under
antidiscrimination laws.204Unsurprisingly,in this environment many
LGBT individuals chose not to publicize their sexual orientation or their
intimate relationships,a stance that in many settingsprevailed into the
twenty-firstcentury.
Despite this hostile climate, many gays and lesbians found partners
and cohabited in stable unions in the last decades of the twentiethcen-
tury.205Functioning in isolation from the larger society,and often from
201. Fromthe 1970sto theearly1990s,pollsshowedthatbetweentwo-thirds and

three-quartersofAmericans thoughtgaysexualrelations were"always wrong." TomW.
Smith, Nat'lOpinionRes.Ctr.,PublicAttitudes TowardHomosexuality 2 (Sept.2011),
available at http://www.norc.org/PDFs/201 l%20GSS%20Reports/GSS_Public%20Attitud
es%20Toward%20Homosexuality_Sept2011.pdf (on filewiththeColumbia LawReview). That
percentage droppedto forty-four percentby2010.Id.; cf.Jeffrey M.Jones,Americans'
Opposition to GayMarriage EasesSlightly,
Gallup(May24, 2010),http://www.gallup.
com/poll/ (on filewiththe
128291/americans-opposition-gay-marriage-eases-slightly.aspx
Columbia LawReview ) (noting, since1996,support forsame-sex marriage has increased
amongmajorpolitical andideologicalsubgroups).
202. See, e.g., HansJohnson& WilliamEskridge, The Legacyof Falwell'sBully
- A Commentary
Pulpit by WilliamEskridge'78, Yale Law Sch. (May 19, 2007),
http://www.law.yale.edu/news/5131.htm (on filewiththeColumbia LawReview) (recount-
ingReverend Jerry Falwell'spolarizingstatementsconcerning homosexuality).
203. Lawrence v.Texas,539U.S.558,573,578-79(2003)(striking downTexassodomy
banas unconstitutional). Somestates stillhavetheselawsin theircriminalcodes,butthey
do notenforce themagainst consentingadults.See Lauren 12
Langlois, States StillHave
Anti-Sodomy Lawsa DecadeAfter TheyWereRuledUnconstitutional, Huffington Post
(Apr. 21, 2014), http://www.huffingtonpost.com/2014/04/21/anti-sodomy-laws_n_518
95.html(onfilewiththeColumbia LawReview) (reportingAlabama, Florida,Idaho,Kansas,
Louisiana,Michigan, Mississippi,NorthCarolina, Oklahoma, SouthCarolina, Texas,and
Utahstillhaveantisodomy laws"onthebooks").
204. The firstnondiscrimination lawforLGBT peoplewaspassedin Wisconsin in
1981;thenextwaspassedeightyearslaterin Massachusetts. DavidE. Newton, Same-Sex
Marriage:A Reference Handbook21 (2010).Theselawsgenerated strongopposition and
to repeal.Ultimately
efforts theSupremeCourtintervened in Romerv. Evansto prevent
repealoftheselaws.517U.S.620,623-24(1996).
205. Manyrelationships havebecomefamiliar through themedia,historical
litigation,
accounts,and cases.See,e.g.,UnitedStatesv.Windsor, 133S. Ct.2675,2695-96(2013)
(holdingmultidecade lesbianrelationshipmustbe recognized underfederal law);Braschi
v.StahlAssoes.Co.,543N.E.2d49,51,55-56(N.Y.1989)(relying on evidence ofsame-sex
couple'sten-year relationship to concludetheyqualifiedas a "family"); WilliamN.
Eskridge,Jr.& DarrenR. Spedale,GayMarriage: ForBetteror forWorse?251 (2006)
family,friends,and colleagues, same-sex couples constructed their rela-

tionships in a highly uncertain environment in which they lacked legal
protection and often social support. The evidence suggests that many
same-sex couples had clear understandingsof theirmutual obligations to
care for and support one another and to share income and property.
Despite stressesunfamiliarto straightcouples, these couples were able to
sustain stable relationshipson the basis of these understandings.206
Some
couples in supportive communities signaled their marriage-like com-
mitment to one another through wedding ceremonies207even though
neither regulatorsnor (often) familyrecognized theircommitments.208
The understandingsof same-sex couples in committed relationships
during this period can be seen as analogous to collaborative agreements
in the business setting.These earlycohabitation agreements were experi-
mental endeavors worked out under conditions of high uncertainty.In
this environment,collaborative commitmentsserved to guide normative
behavior and to build the trustand confidence that reinforcescommit-
ted relationships. But even couples who exchanged marriage vows well
understood that their commitmentswere not legally enforceable. By the
1990s, however,courts began to apply equitable remedies in cases where
one partnerhad exploited the other in a grosslyunfairmanner. Thus, for
example, some courts imposed constructivetrustson propertyheld in
legal titleby one cohabitant where the other had invested large amounts
on improvementsin reliance on the relational understanding.209These
judicial responses resemble the limited enforcementof collaborative con-
tractsby courts seeking to deter blatant cheating on the commitmentto
collaborate.
Over time, as the collaborative model predicts,210 some cohabiting
couples began to execute formal agreements creating mutuallyenforce-
able propertyrights.Although courts firstenforced agreements between
(describingforty-year
relationship ofJackBakerand MikeMcConnell); Chapman, supra
note195(describing fifty-year
relationship).
206. See Braschi,
543N.E.2dat55 (describing same-sexcouple'sinterwoven sociallives
and sharedfinancial commitments). See generallyMendola,supranote197,at 41-95,
118-35(providing in-depth interviews
qualitative withsame-sexcouples).
207. See supranote198(describing ceremonies).
208. See Chauncey, supranote19,at 98-99(discussing pattern during AIDS crisisof
andregulators
hospitals favoringbiologicalfamilyofLGBTpatient overpartners without
see also,e.g.,In re Guardianship
legalrelationship); of Kowalski,478 N.W.2d790,791
(Minn.Ct.App. 1991).KarenThompson's partner,SharonKowalski, wasinjuredin a
severecaraccident.Id. Kowalski'sfamilypreventedThompson from seeingherpartner for
severalyears.Id. A Minnesotaappeals courtultimately ruled thatThompsonwas
Kowalski's
lawfulguardian. Id. at797.
209. See,e.g.,Cannisiv.Walsh, No. 6435/2005, 2006WL3069291, at *4 (N.Y.Sup.Ct.
Oct.30,2006) (holdinglesbianpartner "articulated
a colorableclaimfora constructive
trust
on theproceeds ofthesaleofthesubject property").
210. See supraPartII.B (describingcollaborative
model).
cohabitantsin the 1970s,211fewearlycases involved same-sex couples. But

by the 1990s, courts began to enforce contractsbetween gay and lesbian
partners that specified mutual financial obligations and understand-
ings.212Indeed, cohabiting same-sex couples probably were (and are)
more likelyto execute formal contracts than their straightcounterparts
because contractingprovided the only means by which same-sex couples
could secure some of the rightsand obligations that automaticallyfollow
frommaritalstatus.213
2. PoliticalAction
, Public Acceptance . - By
, and NormativeIntegration
the 1980s and 1990s, the number of lesbian and gay families increased,
and the need for legal protection and political advocacy became more
pressing. Scholars agree that two developments during this period- the
AIDS epidemic and the lesbian baby boom - motivated social and politi-
cal actions that had far-reachingconsequences.214A criticallyimportant
element of this process was the formation of networksby couples and
advocates aiming to promote the rightsof couples in same-sex relation-
211. See, e.g.,Marvin v. Marvin,557 P.2d106,122 (Cal. 1976) (holdingexpressor

implied agreements between cohabitantsareenforceable) .
212. See,e.g.,Doe v.Burkland, 808A.2d1090,1094(R.I.2002) ("[I]t is notillegalfor
twomento livetogether, muchlessto contract and to enterintopartnerships witheach
otherwhiledoingso.");seealsosupranote199(citing casesupholding contracts between
same-sex couples) .
213. Coupleswhoarenotableto marry or entercivilunionsfrequently executecon-
tractsregarding support, propertysharing, inheritance,custody rights, guardianship, and
othermatters. Althoughestimating thenumber ofsuchagreements isspeculative,in 1995,
itwasestimated thattenpercent ofsame-sex coupleshadwritten relationship agreements.
Margaret F. Brinig,Domestic Partnership and DefaultRules,inReconceiving theFamily,
supranote126,at269,277 (reporting study).Somewebsites andlegaldocuments encour-
age same-sex couplesto executewritten agreements, especiallyin stateswheretheylack
othermeansoflegalformalization. See,e.g.,ModelCohabitation Agreement forDomestic
Partners, LexisNexis LegalNewsroom: Estateand ElderLaw (Oct. 5, 2010,10:31AM),
http://www.lexisnexis.eom/legalnewsroom/estate-elder/b/estate-elder-blog/archive/2
0/10/05/model-cohabitation-agreement-for-domestic-partners.aspx [hereinafter Model
Cohabitation Agreement] (on filewiththe Columbia Law Review ); SampleDomestic
Partnership Agreement, HumanRightsCampaign, www.hrc.org/files/assets/resources/
Domestic_Partner_Agreement.pdf (on filewiththeColumbia LawReview) (lastvisitedFeb.
4, 2015).Evenwheregaycouplesmarry or entercivilunions,theymayexecutecontracts
out of concernthatotherstateswillnotrecognizetheirstatus.Cf.KarelRaba,Note,
Recognition andEnforcement ofOut-of-StateAdoption DecreesUndertheFullFaithand
Credit Clause:TheCaseofSupplemental BirthCertificates,15Scholar293,303-04(2013)
(describing struggleof same-sex parentswho adoptout of stateto get revisedbirth
instates
certificates wheresame-sexjointadoption isprohibited).
214. See Chauncey, supranote19,at 95-111(identifying AIDS epidemic andlesbian
babyboomas keycatalysts stimulatingmarriage movement); see alsoNejaime,supranote
80,at 102("TheHIV/AIDSepidemic brought countless gaymenoutofthecloset, united
lesbiansandgaymenbehinda common cause,andprofoundly shapedtheorganization of
theLGBTmovement.").
ships, in part through strategies that increased acceptance of gay and

lesbian familylife in the larger society.215
The AIDS epidemic was a traumatic,exogenous shock that played a
powerfulrole in triggeringthe process of social and legal reformbecause
it provided stark evidence of the vulnerabilityof committed same-sex
relationships when partners were required to engage with society's
institutions.First,AIDS patients who lost their health insurance because
theywere too ill to work were not eligible for familycoverage on their
partners' plans.216Moreover,when gay and lesbian individuals contracted
AIDS (or, indeed, any serious illness or disability217), their partners fre-
quently were prevented from participating in treatment decisions, acting
as proxy medical decisionmakers, or even from planning funerals and
memorial services, often despite decedents' express wishes.218Surviving
gay partners had no inheritance rights; in the absence of a will (and
sometimes even with one), parents, siblings,and even more remote rela-
tives acquired the deceased partner's property.219 In response to the
of
plight patients and their partners, the gay and lesbian communityral-
in
lied, uniting ways that reinforced its cohesiveness, and an energized
corps of legal advocates mobilized to assert same-sex couples' rights.220
The AIDS crisis effectivelymotivated collective action and provided a
foundation for a powerful interestgroup aimed at gaining protection of
same-sex couples' familyrights.Despite the onerous cost of livingopenly,
the stakes had become sufficiently high that more couples were willingto
take the risk.
215. See Chauncey, supranote19,at 41-42,47 (describing mobilization ofgays, with

largenumbers comingoutto friends, workmates, and families in late1980sand 1990s);
Newton, supranote204,at 22-23 (describing LGBTmobilization in responseto AIDS
followed
crisis, byefforts togainrightsforsame-sex couples).
216. See Chauncey, supranote19,at96 (describing lossofinsurance).
217. The case of SharonKowalski discussedabove,see supranote208,also had a
galvanizing impact,as it made clearhowlittleprotection gaypartnerships had. See
Chauncey, supranote19,at 111-16(recounting impactofKowalski caseon LGBTmove-
mentandsuggesting marriage couldhaveoffered thecouplelegalsecurity) .
218. See Chauncey, supranote19,at99-100(discussing difficulties
same-sex partners
haveencountered in planning funeralsand memorial William
services); B. Rubenstein,
WeAreFamily: A Reflection on theSearchforLegalRecognition ofLesbianandGayRela-
8 J.L.& Pol'y89,91 (1991) ("AIDShas madethelackofa legalrelationship
tionships,
crushinglyapparent tolesbianandgaycouples:a gaymanwhosepartner is dying ofAIDS
mayhavedifficulty inquiringabouthiscondition or visitinghimin thehospital because
thecouplehasno legalrelationship tooneanother.").
219. See,e.g.,In reCooper,592N.Y.S.2d 797,801 (App.Div.1993)(rejecting same-sex
claimto"surviving
partner's spouse"designationforpurposeofinheritance).
220. See Chauncey, supranote19,at 41-42 ("AIDS also led to an unprecedented
mobilization ofgaymenand [a] . . . degreeofcooperation between themand thelarge
numberoflesbianswhoplayedleadingrolesin theresponseto AIDS.");see also Tina
Fetner,HowtheReligious RightShapedLesbianand GayActivism 55-56(2008) ("Lesbi-
ans,thoughnotafflicted byAIDS in largenumbers, wereon thefrontlinesof [AIDS
response].... In dealingwiththistragedy,thelesbianandgaycommunity . . . established
closenetworks oforganizationsworking towardcommon causes.").
In the last decades of the twentiethcentury,this drive for legal

protectiongained momentum fromanother source as well. Lesbian (and
some gay) couples began to formfamiliesand to have and raise children,
usually biologically related to one partner and often produced through
sperm donation (or surrogacyarrangements).221This trend in itselfindi-
cated the growingdesire of same-sex couples to live togetherin commit-
ted familyrelationshipsthat,of necessity,could not functionin complete
privacy.But these families faced daunting legal challenges unknown to
different-sexcouples. The partner who lacked a biological connection
with the child enjoyed no parental rights.222 If the legal parent died or
became incapacitated, her parents or other relativeswere likelyto gain
custody;despite having lived foryears in a parent-child relationship,the
partner became a legal stranger to the child.223Further,if the parents
separated, the nonbiological parent's relationshipwithher children con-
tinued only with the consent of her former partner.224 Even biological
parents lacked secure parental rightsas courts in some states were pre-
pared to find lesbians to be unfit parents on the basis of their sexual
orientation.225
The growing interest among gays and lesbians in forming family
relationships,togetherwithincreased awareness of how vulnerable these
relationships were, became a catalystfor collective action, conforming
roughly to the collaborative processes described in Part II. During the
last decades of the twentiethcentury,same-sex couples increasinglyaffili-
ated through social, political, and religious networks, strengthening
bonds withinthe gay community.226 Commitmentceremonies grewin po-
221. See MelanieB. Jacobs,MicahHas One Mommyand One Legal Stranger:

Adjudicating MaternityforNonbiological LesbianCoparents, 50 Buff.L. Rev.341,342n.2
(2002) (reporting as manyas tenmillionU.S. childrenlivein families withsame-sex
parents).
222. See id.at342("Eventhough . . . lesbiancouples makethedecisiontohave
jointly
children, thepartywhoisartificially
inseminated isa legalparentbecauseofherbiological
tie,whiletheotherpartyhas no legalparentalrolebecauseof herlackof biological
connection tothechild.").
223. See, e.g.,T.F.v. B.L.,813 N.E.2d1244,1254 (Mass.2004) (rejecting custodial
claimofbiological mother's former femalepartner, whohadno biological relationshipto
child);Adoption ofTammy, 619N.E.2d315,320n.8 (Mass.1993)(observing that,despite
mother's designatingherpartner as child'sguardian in herwill,partner'scustodialclaim
wasvulnerable ifmother died).
224. See,e.g.,AlisonD. v.Virginia M.,572N.E.2d27,28 (N.Y.1991)(rejecting visita-
tionpetition bylesbiande factoparent) .
225. Divorcedor unmarried custodialmothers werevulnerable to challengesby
fathersor otherrelativesclaiming thatlesbianmothers wereunfit.In a muchpublicized
Virginia case,SharonBottoms, a lesbianmother, lostcustody to hermother. Bottoms v.
Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (awarding custody to grandmother in part
because"[c]onduct inherentin [mother's] lesbianism is punishableas a Class6 felonyin
theCommonwealth").
226. See supranotes214-225and accompanying text(discussingroleofAIDS crisis
andlesbianbabyboominpromoting network formation amonggays).
pularity,and religious couples underwent nonlegal marriage ceremonies

before friendsand familyin supportivechurches.227Committed same-sex
couples, together with their children, formed the basis of a normative
community of families that provided social support to one another.228
Particularlywith the abolition of antisodomylaws criminalizingsame-sex
intimacy,229 these families also began to live more openly in their
communities and had more interactionwithstraightneighbors, teachers,
and others,who thus could observe theirconventional character.230
The common goal of securing legal protection for gay and lesbian
family relationships was criticallyimportant at several levels. First, it
served to reinforcecohesiveness within the gay community,with a grow-
ing networkof same-sex couples and their legal and political advocates
collaborating on a common set of political and social objectives.231As
with the formation of collaborative business networks,this networkwas
supported by the shared goals and common purposes of its members. A
norm of cooperation and open exchange of informationamong network
members was essential to the effectivepursuit of legal reform.But the
evidence suggests that the reform movement served as well to solidify
family-commitment norms. Beginning in the 1980s with the effortto per-
suade localities to pass domestic-partnershipordinances offeringlimited
protection to gay couples, the clear strategy of the advocates who
227. See Chauncey, supranote19,at91-92(discussing how"[performing [same-sex]

marriages was a centralmissionof the Metropolitan Community Church"); JamesN.
MCC and Marriage
Birkitt, Equality, Metro.Cmty. Churches(2013),http://mccchurch.
org/overview/history-of-mcc/mcc-and-marriage-equality/ (on filewiththe Columbia Law
Review) (describingearlyMetropolitan Community Church marriage ceremonies).
228. See AmandaK. Baumleet al.,Same-Sex Partners 84-91(2009) (discussing rea-
sonsLOBT peopleinteract and maychooseto livein predominantly LGBT neighbor-
hoods). The formation ofa socialcommunity beganevenbeforethecatalyst oftheAIDS
crisistriggereda moreactivist approach.See,e.g.,Katherine Turk,"OurMilitancy Is in
OurOpenness": GayEmployment RightsActivism in Californiaand theQuestionofSex-
ual Orientation in Sex Equality Law,31 Law& Hist.Rev.423,432-33(2013) (describing
earlyformation ofsocialnetworks amonggaysand lesbians, togetherwithorganizations
likeMattachine Society andDaughters ofBilitisin 1950s).
229. See Lawrence v. Texas,539 U.S. 558,577-78(2003) (finding criminal statute
prohibitingsodomy unconstitutional).
230. Much evidencesupportsthe contention thatpositiveattitudes followwhen
straightshavepersonalassociation withgays.See infranote237 (citingpollingdataand
scholarship supporting thiscontention). Surveys showthatthepercentage ofthepopula-
tionthathaspersonal relationshipswithgayshasincreased dramaticallyin thelasttwenty
years.See,k.g.,PewResearch Ctr.,In GayMarriage Debate,BothSupporters and Oppo-
nentsSee LegalRecognition as Inevitable
14 (2013) [hereinafter PewResearch Ctr.,Gay
Marriage Debate],availableat http://www.people-press.org/files/legacy-pdf/06-06-13%20
LGBT%20General%20Public%20Release.pdf (on file withthe Columbia Law Review)
(reporting eighty-seven percentofAmericans knowa gayindividual, comparedto sixty-
onepercent twentyyearsago).
231. See Fetner, supranote220,at 46 (discussing changeresulting in "[t]hemost
influentialorganizations in the movement [being]entrenched in a battleforequal
rights").
emerged to lead the political and legal movement (the norm entrepre-
neurs) was to define the relationships of same-sex couples as being like
marriage and not like those of different-sexcouples who chose not to
marry:232Advocates described same-sex couples seeking relationship
recognition as being in committed, financiallydependent unions like
their married counterparts. Thus, the state's decision to exclude these
couples from benefits that married couples enjoyed was unfair
discrimination.233This strategy,in effect,both defined the norms for
same-sexfamilyrelationshipsand encouraged conformityto those norms
as the means to attain the community'slegal goals.234
The movement to gain legal protection of same-sex familyrelation-
ships also contributed importantlyto the transformationof public atti-
tudes about these relationshipsand ultimatelyabout same-sex marriage.
To be sure, changes were not immediate. Although the AIDS epidemic
awakened in the gay communitya realization of the importance of legal
reform, public anxiety about AIDS in the 1980s seemed to intensify
hostility toward gay and lesbian relationships.235But, in our view,
collaboration within the community on political and legal goals and
consensus about the means to achieve them contributed both indirectly
and directlyto public acceptance of same-sex relationships.236 The suc-
232. DouglasNejaimemakesthispointindescribing thestrategyofadvocates seeking

to acquiredomestic-partnership statusforsame-sex couplesin Los Angelesand San
Francisco inthe1990s:
[T]o achievenonmarital recognition, advocatesappealedto marriage's
conventions, pointed to the unique exclusionof same-sex couplesfrom
marriage, andstressed same-sex couples'commonality withmarried cou-
ples. In building domestic partnership, theyemphasized marital
norms - suchas adultromantic mutualemotional
affiliation, commit-
ment,and economicinterdependence - capableofincluding same-sex
couples.Bychallenging marriage's primacy whilearguing forrecogni-
tionin terms defined bymarital norms, advocates contested,
accepted,
and ultimately shapedtheinstitution ofmarriage whilesimultaneously
portraying same-sex relationships as marriage-like.
Nejaime, supra note80,at 113.
233. Id.
234. AsWilliam Eskridge explains, theconstitutional equal-protectionframework de-
ployedbylegal advocates has
intrinsically propelled gay-rightsactivists
toward an integra-
tiveapproach, sinceitis basedon a claimthatsame-sex couplesweresimilarly situatedto
sex
opposite couples but denied equal treatment.See Eskridge, Channeling, supranote
93,at480 ("[(Constitutional doctrine notonlychannels theenergies ofthesesocialmove-
ments. . . butalsochannels theirrhetoric andperhapseventheirideologies intothefur-
rowsplowedbyjudgesandlawprofessors.").
235. GalluppollsduringthepeakoftheAIDS crisisfrom1986to 1988consistently
foundthatoverfifty percent ofrespondents thought thatsexbetween same-sexpartners
shouldbe illegal,a marked risefromprevious years.See GayandLesbianRights, Gallup,
http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx (on filewiththeColumbia Law
Review)(lastvisitedFeb.4,2015).
236. To be sure,manyadvocates in thegaycommunity regrettheprioritygivento
attaining marriage rightsas wellas theassimilative strategy adoptedto shiftpublicopin-
cess of the marriage-equalitymovement required effectiveengagement

with mainstream society.In part, this happened informallyas more les-
bian and gay couples came out, signaling the quality of their relation-
ships to the straight community; in turn, that community became
familiarwithsame-sex couples livingtogether (often with their children)
in conventional family relationships. Research studies clearly indicate
that personal association with gay and lesbian individuals as friends,fam-
ily members, colleagues, and neighbors is stronglycorrelated with posi-
tive attitudes and support for marriage equality.237Gays and lesbians
coming out dispelled fears held by many straights:Two adults raising
their children in a loving and supportivefamilywas hardlya threatening
image. The softeningof public attitudes,in turn, made it easier for les-
bian and gay families to live more openly, furtherreinforcingthe trend
towardpublic acceptance.238
The strategiesof legal and political advocates and the behavior of
gay and lesbian couples who became the public face of the marriage-
equality movement also were critical to the process of changing public
attitudes. Advocates understood their role as norm entrepreneurs and
chose their clients carefully;239
most petitionershad compelling histories
of long-term,committed relationships.240 In various ways,advocates, peti-
tioners, and other couples highlighted by the media signaled to the
ion. See Franke,Marriage Politics, supranote71, at 237-42(challenging movement's

focuson marriage); NancyD. Polikoff, Commentary, WeWillGetWhatWeAskFor:Why
Legalizing GayandLesbianMarriage WillNot"Dismantle theLegalStructure ofGender
in EveryMarriage," 79 Va. L. Rev.1535,1549 (1993) (opposingstrategy emphasizing
similaritiesbetween"our relationships and heterosexual marriages");WilliamB.
Rubenstein, DividedWeLitigate: Addressing Disputes AmongGroupMembers and Law-
yersin CivilRightsCampaigns, 106 Yale L.J.1623,1635 (1997) (arguingadvocating
marriageis "contrary to. . . 'the affirmation of gay identity and culture"'(quoting
Ettelbrick,supranote71,at 14)); see alsoEttelbrick, supranote71,at 16 (arguing same-
sex marriage "wouldundermine ourmovement to recognizemanydifferent kindsof
relationships").
237. See PewResearchCtr.,GayMarriage Debate,supranote230,at 16 ("68%of
thosewhoknowa lotofgaysand lesbians . . . saytheysupport same-sexmarriage."); see
alsoPublicOpinionand Constitutional Controversy 201 (Nathaniel JackCitrin
Persily, &
PatrickJ.Eganeds.,2008) ("AsmoreAmericans havecometo realizethattheydo know
gaypeople,they havealsobecomemorecomfortable withthem.").
238. PewResearchCtr.,A Survey of LGBTAmericans: Attitudes,
Experiences, and
Valuesin Changing Times32, 34 (2013),availableat http://www.pewsocialtrends.org/
files/2013/06/SDT_LGBT-Americans_06-2013.pdf (on filewiththeColumbia LawReview)
(reporting percentofLGBTindividuals
ninety-two saysociety is moreaccepting ofthem
thana decadeago,and attributing changeto individuals knowing and interacting with
LGBTpersons, totheeffortsofadvocates, andtoLGBTcouplesraising .
families)
239. See Nejaime,supranote80,at 123(describing strategy ofemphasizing marriage-
likequalityofgayrelationships as contrasted withunmarried couples).
straight
240. See, e.g.,RobertBarnes,GayMarriage at theSupremeCourt:A 'RealCouple'
BehindProp8 Challenge, Wash.Post(Mar.9, 2013),http://www.washingtonpost.com/
politics/gay-marriage-at-the-supreme-court-a-real-couple-behind-prop-8-challenge/20
3/09/39ddl2f0-869e-lle2-98a3-b3db6b9ac586_story.html (on filewiththe Columbia Law
Review) (discussing
relationship ofcouplechallenging California'sProposition8).
larger communitythe marriage-likequality of same-sex relationships.241

The clear message was that if gays and lesbians were actually allowed to
marry,couples that chose this option could be expected to conform to
stabilizing family norms embraced by the larger community. Media
reports confirmed that the desire of gay and lesbian partners to under-
take formal commitment through marriage was motivated by the same
sentimentsand goals as those of straightcouples. As Edie Windsor,who
successfullychallenged the constitutionalityof DOMA's exclusion of
same-sex spouses from federal benefits,242 famously remarked,
"[M]arriage is this magicthing.... [It] symbolizescommitmentand love
like nothing else in the world."243Eighty-four-year old Windsor and the
story of her decades-long relationship with Thea Spyer became world
famous; TIME magazine named her a runner-up the 2013 Person of
as
the Year.244In our view, the success of the marriage-equalitymovement
owes a great deal to the impact on public and lawmakers' opinion of the
stories of petitionerssuch as Windsor.Without these stories,it is unclear
whether the powerful legal arguments made on the petitioners' behalf
would have succeeded.245
This account of the gay and lesbian movement to attain marriage
rights tracks the evolutionary process from isolation to integration
described in Part II. Couples and theiradvocates collaborated in forming
normativecommunitieswith the common aim of gaining social recogni-
tion and legal protection of gay and lesbian families,and these networks
reinforced and supported their familyrelationships. Partlythrough the
strategiesof advocates, same-sex couples signaled effectively
to the larger
241. See id. (describing "remarkably normal"coupleinvolved in Proposition 8 chal-

lenge). Attractiveandnonthreatening forlegalequality,
couplespetitioning registeringfor
civilunions,and applying formarriage licensescameto represent all lesbianand gay
families subjectto legaldiscrimination. Cf.Franke, Marriage supranote71, at
Politics,
239-40(raising objections toprioritization
ofsame-sexmarriage recognition in marriage-
equality movement) .
242. In United States , theCourtstruck
v. Windsor downDOMA'ssection 3, whichlim-
itedtheapplications ofprovisionsunderfederal lawrelatingtomarriages ofdifferent-sex
couples.133S. Ct.2675,2695-96(2013).
243. NinaTotenberg, Meetthe83-Year-Old TakingOn theU.S. overSame-Sex Mar-
riage,NPR(Mar.21,2013,4:36PM),http://www.npr.org/2013/03/21/174944430/meet-
(on filewiththe Columbia
the-83-year-old-taking-on-the-u-s-over-same-sex-marriage Law
Review) .
244. ElizaGray, EdithWindsor, theUnlikely TIME (Dec. 11,2013),http://
Activist,
poy.time.com/2013/12/ll/runner-up-edith-windsor-the-unlikely-activist(on filewiththe
Columbia LawReview ); see alsoAdamGabbatt, EdithWindsor and Thea Spyer:'A Love
AffairthatJustKeptOn andOn andOn,' Guardian(June26,2013),http://www.theguar
dian.com/world/2013/jun/26/edith-windsor-thea-spyer-doma (on filewiththe Columbia
LawReview) (describing relationship).
245. RobertaKaplan,attorney for Edie Windsor, describedthe importance of
Windsor's personalstory tothesuccessoftheconstitutional Roberta
litigation. A. Kaplan,
"It'sAllAboutEdie,Stupid":LessonsfromLitigating UnitedStatesv. Windsor (Feb. 28,
2014)(transcript onfilewiththeColumbia LawReview).
communitythat they lived in conventional, marriage-likerelationships,

caring for each other and for their children. This process has led to a
dramatic shift in public attitudes; by 2013, a majority of Americans
approved of marriage rightsfor same-sex couples.246In many parts of the
country,the social statusof committed same-sex couples has evolved in a
generation fromthat of isolated outsiders or even outlaws to familieswho
are integratedinto the broader normativecommunity.
3. IncrementalProgressToward Legal Recognition.- Although the
stages of the collaborative process described in Part II are usefullysepa-
rated for analytic purposes, one would expect the networking-social-
acceptance stage and the legal-recognitionstage to overlap substantially;
this overlap has certainlycharacterized the marriage-equalitymovement.
As explained above, the realization that same-sex unions were legallyvul-
nerable directly led to the creation and strengtheningof LGBT net-
works.247 Moreover, signaling the marriage-likequalities of same-sex fam-
ily relationships, which contributed to social acceptance, was partly a
legal strategy;the evidence suggests that this signaling furthered legal
claims, reassured lawmakers, and influenced public opinion.248Finally,
the extension of legal protections has had a powerful expressive effect,
legitimatinggay relationshipsand reinforcingpositivepublic attitudes.249
In the past decade, of course, the dynamic synergybetween evolvingpub-
lic attitudesand legal reformhas been extraordinary.250
Incremental progress toward full legal recognition of same-sex cou-
ples' familyrelationshipsbegan in the late 1980s and continues today.In
the early period, LGBT legal advocates enjoyed limited successes; a few
courts recognized gay or lesbian couples as de facto familiesfor particu-
246. See LydiaSaad,In U.S.,52% BackLawto LegalizeGayMarriage in 50 States,

Gallup(July29, 2013),http://www.gallup.com/poll/163730/back-law-legalize-marriage-
states.aspx(on filewiththe Columbia LawReview) (providingpollingshowing majority
supportforsame-sex-marriage rights).
247. See supranotes214-230andaccompanying text(discussing
thistrend).
248. See UnitedStatesv.Windsor, 133S. Ct.2675,2694(2013) (discussing of
"aspects
married andfamily life"embodied inmanysame-sex supraPartII.A.2(dis-
relationships);
cussingpositiveeffectsofsocialacceptanceofsame-sex family .
relationships)
249. See supranote169 and accompanying text(discussingexpressive functionof
law).
250. The viewsoflawmakers changedin responseto publicopinion,ofcourse,but
alsosometimes as a resultofpersonalexperience. See RichardSocarides, Rob Portman
andHisBrave, GaySon,NewYorker (Mar.15,2013),http:// www.newyorker.com/online/
blogs/newsdesk/ 2013/03/rob-portman-and-his-brave-gay-son (on filewiththeColumbia
Law Review)(notingSenatorRob Portmanchangedhis mindin favorof same-sex
marriage afterhissoncameout);RobinToner,CheneyStakesOutHis OwnPosition on
GayMarriage, N.Y.Times (Aug.25, 2004), http://www.nytimes.com/2004/08/25/pol
itics/campaign/25cheney.html (on filewiththe Columbia LawReview)(describing Dick
Cheney's shift
inopinionon marriage after
equality acknowledging sexualityofhislesbian
daughter).
lar purposes,251and cities such as New York and San Francisco allowed
gay and lesbian couples (and sometimes others) to registeras domestic
partners,a status that carried symbolic meaning but few benefits.252 In
the mid and late 1990s, a handful of state legislaturesenacted laws creat-
ing registrationsystems that conferred a somewhat broader array of
rightsand benefits.253Following the Vermont Supreme Court opinion in
Bakerv. Statein 1999,254several statesenacted civil-unionstatutesallowing
same-sex couples to registerfor a statusthat closely mirroredmarriage in
In
its tangible benefitsand obligations but lacked its respected status.255
2003, the Supreme Court held antisodomy laws unconstitutional in
Lawrencev. Texas,256removing a major obstacle to safe familyformation
for same-sex couples. Thereafter, beginning in 2003 with the
Massachusettscase of Goodridgev. DepartmentofPublic Health, courts and
legislatureshave extended the rightto marryto same-sex couples.257To-
statesand the Districtof Columbia recognize thisright.258
day, thirty-six
251. See E.N.O.v. 711N.E.2d886,893-94(Mass.1999)(holding lesbianpart-

nerto be de factoparent);Braschiv. StahlAssoes.Co., 543 N.E.2d49, 55 (N.Y.1989)
(holding gaycoupletobe de factofamily) .
252. See Nejaime,supranote80, at 142-46(describing efforts to enactdomestic-
partnership ordinances in LosAngeles andSanFrancisco); see alsoRaymond C. O'Brien,
DomesticPartnership: and
Recognition Responsibility, 32 San Diego L. Rev. 163,184
(1995)(describing NewYorkCityordinance extending "healthbenefitstobothhomosex-
ual and heterosexual domestic partners"). Different-sexcoupleswereallowedto register
undersome domestic-partnership ordinances, but the purposewas to extendsome
recognition to gayand lesbiancouples.See, e.g.,id. (notingin NewYorkCity, benefits
wereoriginally "contemplated onlyforhomosexual couples"butwereeventually also
extended toheterosexual domestic partners).
253. HawaiiandCalifornia weretwosuchstates. Haw.Rev.Stat.Ann.§§ 572C-1, 572C-
6 (LexisNexis 2010) (creating beneficiary
reciprocal see In reMarriage
status); Cases,183
P.3d 384, 413 (Cal. 2008) (describing 1999 California legislationcreatingstatewide
domestic-partnership .
status)
254. 744A.2d864,886,889 (Vt.1999) (holdingban on same-sex marriage violated
Common BenefitsClauseofstateconstitution).
255. Vermont responded to Bakerbyenacting a comprehensive civil-union
statute,as
did severalotherstatesoverthe nextdecade.MishaIsaak,Comment, "What'sin a
Name?":CivilUnionsand the Constitutional Significance of "Marriage," 10 U. Pa. J.
Const.L. 607,640-42(2008) (describing states'enactment ofcivilunionsand domestic
partnerships,withmany, butnotall,rights ofmarriage).
256. 539U.S.558,578(2003).
257. 798N.E.2d941,957 (Mass.2003)(finding righttomarriage forsame-sex couples
instate).
258. 36 StateswithLegalGayMarriage and 14 StateswithSame-Sex Marriage Bans,
ProCon.org, http://gaymarriage.procon.org/view.resource.php?resourceID=004857 (on
filewiththeColumbia LawReview) (lastupdated Jan.13,2015,8:14AM).Thisnumber con-
tinuesto change;foran updatedlist,see NationalStatusMaps,Marriage EqualityUSA,
http://www.marriageequality.org/national_maps (on filewiththe Columbia LawReview)
(lastvisitedFeb.4, 2015).Priorto October6, 2014,nineteen statesand theDistrict of
Columbia recognized same-sex marriage.AdamLiptak, Supreme CourtDeliversTacitWin
toGayMarriage, N.Y.Times(Oct.6,2014),http://nytimes.com/2014/10/07/us/denying-
(on filewiththe Columbia
review-justices-clear-way-for-gay-marriage-in-5-states.html Law
This account is familiarand need not be repeated in detail. For the

purposes of this Article, three aspects of the regulatory history are
important.First,as predicted in the model set out in Part II, the process
was iterative, allowing lawmakers to gain information incrementally
about the functioning of same-sex unions to determine whether these
groups provided the stabilityand capacity to fulfillfamilyfunctions. In
this way,lawmakerswere able to meet the challenge of verifyingthat an
aspiring familygroup that had been the targetof hostilityand disparage-
ment deserved legal protection. Courts and legislatures evaluated the
claim by marriage opponents that children raised by gay and lesbian par-
ents faced harms not experienced by children raised by married par-
ents- and that therefore,these couples lacked the qualities to function
adequately as families.259Evidence of same-sex couples raising their chil-
dren satisfactorilyaccumulated over time, along with scientificstudies
indicating that the opponents' claim was groundless.260This information
greatlyweakened the argument against extending the right to marryto
gay and lesbian couples since few disputed that, in the absence of
particular harm, children benefited if their parents were able to enjoy
the benefitsof marriage.261
The second key feature of the process by which legal rightswere
extended to gay couples suggests another way in which regulators and
advocates collaborated to produce the informationnecessary to evaluate
thisgroup of aspiring families.From the beginning,even when the rights
sought and conferredwere meager, marriage has provided the template
of best practices against which both advocates and regulators have mea-
sured same-sex relationships. As Douglas Nejaime demonstrates in his
Review)(describing SupremeCourt'sOctober6th ruling).On October6, 2014,the

Supreme Courtletstandfivefederal circuit courtopinions holding statebansofsame-sex
marriage unconstitutional.Id. Otherstatesin thesefederalcircuits are boundbythese
holdings, increasingthenumber ofstatesallowing same-sexcouplestomarry. Id.
259. Thisubiquitous claimwasmaderecently in thebriefsofthestateofUtahappeal-
inga districtcourt'sholdingthatitsstatute restricting
marriage todifferentsexcouplesis
unconstitutional. See StateDefendants' Replyin Supportof MotionforStayPending
Appealat 9, Kitchen v.Herbert, 961 F. Supp.2d 1181(D. Utah2013) (No. 2:13-cv-217),
2013WL 7175328("[M]an-woman marriage promotes theState'scompelling interest
in
thecareand well-being ofchildren(and society)byfacilitating responsible procreation
andtheidealmodeofchild-rearing.").
260. See, e.g.,Perryv. Schwarzenegger, 704 F. Supp.2d 921,948 (N.D. Cal. 2010)
(evaluating and rejecting claimsby plaintiffs that"children raisedby theirmarried,
biologicalparentsdo betteron averagethanchildren raisedin otherenvironments"),
aff'dsubnom.Perry v.Brown, 671F.3d1052(9thCir.2012),vacatedand remanded sub
nom.Hollingsworth v.Perry,133S. Ct.2652(2013);seealsoGoodridge , 798N.E.2dat962-
64 (rejectingstate's
claimthatchildren raisedbygayparents sufferedharm).
261. For example,David Blankenhorn, the advocatewho arguedin Perryv.
Schwarzenegger thatchildren wereharmedbysame-sex parents,abandonedhisposition in
2012 (on the groundthatchildrenbenefited fromthe stability of marriage).Ethan
Bronner, GayMarriage GainsBackeras MajorFoe Revises Views,N.Y.Times(June22,
2012),http://www.nytimes.com/2012/06/23/us/david-blankenhorn-drops-opposition-t
y-marriage.html (onfilewiththeColumbia LawReview).
interestingstudyof LGBT-rightsadvocacy in California in the 1980s and

1990s, advocates and couples argued consistentlyin differentlegal set-
tings that same-sex unions were marriage-equivalentand differentfrom
the casual affiliationsof heterosexual couples who chose not to marry.262
Moreover, lawmakers required, as a condition of even limited legal
recognition, that qualifying relationships be marriage-like. Under
California domestic-partnershipordinances and statutes, for example,
domestic partnerswere defined as two individuals, not related by blood
or marriage, who '"share the common necessaries of life"'263and
'"declare that they are each other's principal domestic partner."'264 As
Nejaime points out, the language reflected an effort to define the
responsibilitiesand commitment of domestic partners as equivalent to
those of married couples.265
Two importantpurposes were served by defining domestic partner-
ships as marriage-equivalent.First,domestic-partnershipstatus provided
same-sex couples withanother and clearer means of signaling the quality
of theirrelationships,expediting the process of public acceptance. Regis-
trationas domestic partners may have carried few tangible benefits,but
the act announced to the world that couples were in a committed
interdependent relationship. Second, domestic-partnershipand civil-
union registrationhas some similarityto the collaborative "best prac-
tices" process described in Part II: The aspiring couples provided infor-
mation to the state about how they planned to fulfill their family
functions,the parties collectivelyestablished benchmarks that embodied
their expectations for the support and care of familymembers, and law-
makers could use domestic-partnershipregistrationby same-sex couples
to monitor compliance with advocates' claims that many gay couples
lived in marriage-likeunions.266
The thirdaspect of the process of legal reformthat meritsattention
is the extent to which lawmakershave conferredlegal protection of same-
sex relationshipsthrough registrationand licensing, ratherthan through
judicial recognition of informalunions. Although de facto parents have
had some success in obtaining visitationrightsin custody disputes, only
262. See Nejaime,supranote 80, at 114-21(describing approachesof domestic-

partnership advocates inNorthernandSouthern California).
263. Id. at 119(quotingMemorandum fromHumanRelations & WelfareComm'nto
Hon.Mayor & Members oftheCityCouncil20 (July 17,1984)).Thislanguage wasbased
on California caselawdefiningmarital Id. at 117.
obligations.
264. Id. at 115 (quotingAn Ordinance to Createa RecordofDomestic Partnerships
(Draft)(1982)).
265. Id.
266. Thus,forexample, ifmostdomestic partnerships claimsabout
failed,advocates'
thenatureoftheseunionswouldhavebeenweakened. Ofcourse, notallaspiringfamilies
aremodeledon marriage. Thissuggeststhatsomenovelfamily groupsmayfacedifferent
challenges as theyseeklegalrecognition and thatregulators mayalso need to adopt
differentverification to evaluatethesegroups.Thisissueis addressed
strategies belowin
PartIII.C.
rarely in the past decade have courts and legislatures conferred rights
and obligations on same-sex couples living in informalunions. The ALI
Domestic PartnershipPrinciples, under which couples livingin informal
unions are subject to the inter se rights and duties of marriage, have
gained little traction.267Given the momentum toward greater legal
protection of same-sex relationships, this may seem surprising. But as
suggested in Part II, a licensing approach has many advantages. Registra-
tion is an efficientand privacy-protective mechanism for resolving the
daunting verifiability problems faced by lawmakersaiming to offerfamily
benefitsonly to those groups thatfulfillfamilyfunctions.By allowing cou-
ples to signal that theirrelationship is based on mutual commitmentand
responsibility,registrationassistsregulatorsin distinguishingunions that
warrant legal protection from more casual affiliationswithout costly
probing inquiries.
B. TheIncomplete ofCohabitation
Recognition Relationships
Although LGBT-rightsadvocates have enjoyed considerable success
in attaininglegal recognition of same-sex familyrelationships,informally
cohabiting couples in this countryhave received few legal protections.268
Public hostilityor ignorance about cohabitation cannot explain lawmak-
ers' failure to confer legal protection on cohabitants; surveysindicate
substantial tolerance of informal unions.269Yet many couples live to-
gether in marriage-likerelationshipswithfew of the state benefitsassoci-
ated with marriage and withoutthe obligations to one another that pro-
tect spouses on divorce. The analysis in Part I suggests that a liberal
society should confer legal protection on all groups that fulfillfamily
functionssatisfactorily.Why then have same-sex couples been so success-
ful in attaining the legal benefits awarded to families while cohabitants
have largelybeen leftunprotected?
267. See Clisham& Wilson, supranote189,at 610 (reporting no statehas adopted

ALIdomestic-partnership supranote189(discussing
status); ALIdomesticpartners'rights
andobligations).
268. Fora discussionoftheverylimited enjoyedbyunmarried
legalprotections cou-
ples,seeEllmanetal.,supranote52,at967-73.Somehavecriticized thelimitedavailabil-
ityoflegalprotectionsand haveproposedreform. See Polikoff,
BeyondMarriage, supra
note1,at 3-4 (describingand critiquing
lackoflegalprotectionofunmarried couples);
Cherlin,supranote69,at 292-94(proposing greater forcohabiting
legalprotection par-
ents);AnnLaquerEstin,Ordinary Cohabitation,76 NotreDameL. Rev.1381,1383-84
absenceofrights
(2001) (describing andobligationsbetween Weiner,
cohabitants); supra
note58,at 160(arguing forincreased andobligations
rights betweenunmarried parents).
As Polikoff
has noted,unmarried couplesin Canadaand othercountries have
beenmoresuccessful inattaining Polikoff,
legalprotections. BeyondMarriage,supranote
1,at 111-20.
269. See PewResearchCtr.,The DeclineofMarriage, supranote7, at 7-8 (finding
majorityofpublicis eitherneutralor positive
aboutcohabitation(includingunmarried
children)).
couplesraising
Our analysis of the impediments facing aspiring families and the

means of overcoming these obstacles through collaboration sheds light
on this puzzle. Two interrelatedfeatures of cohabitation have impeded
progress toward legal recognition and left cohabitants with few of the
legal rightsand duties conferred on protected families. First,the cate-
goryof cohabitants includes a broad range of couples withvaryinginten-
tions for their relationships.Some cohabiting relationshipsare based on
enduring commitment and interdependence; for psychological or
ideological reasons, these couples have chosen not to enter legal mar-
riage.270Other couples are experimental and tentativein their commit-
ment; theymay or may not develop into long-termfamilyrelationships.
Still other cohabitants affirmativelyreject commitment and financial
interdependence: Indeed, this is a significantreason not to marry.271 Of
course, thisvariabilitymightdescribe gay and lesbian unions as well. But
the difference, emphasized by LGBT-rights advocates, is the second
feature of cohabitation that has complicated the path to familyrecogni-
tion. The decision not to marry when marriage is an option sends a
confusing signal about the nature of cohabitants' relationships and the
extent to which they are defined by family-commitment norms. This
uncertaintyimpedes the sortingof those informal unions that serve fam-
ilyfunctions adequately from more casual relationships that do not. The
uncertain signal created by the choice not to marry,together with the
variabilityamong cohabiting couples, has hindered networkformation
and normativeintegration;it also poses challenging verifiability problems
for regulators. In short, the defining features of cohabitation as a cate-
gory create the uncertainty that has inhibited progress toward legal
recognition.
1. Cohabitationand Norm Creation : Networkingand Integration.-
Researchers have found that cohabitants have lower levels of commit-
ment to their relationships than do married couples;272perhaps for this
reason, informalunions typicallyare far less stable than marriages. This
is partly due, of course, to the diversityamong cohabiting couples
described above. For many couples, cohabitation is experimental, a way
foreach cohabitant to evaluate whetherthe relationshipis viable and the
other partya trustworthy and compatible life partner.Thus, withinthree
270. Contractual claimsforpropertyandsupport areoftenbroughtbypartieswhose

informalunionwasmarriage-like. See Friedman v.Friedman, 2d892,901 (Ct.
24 Cal.Rptr.
App.1993)(rejecting supportclaimbypartner relation-
oftwenty-five-year
at dissolution
shipwithtwochildren).
271. SeeJudith FormedOutsideofMarriage,
Families
Seltzer, 62J.Marriage8cFam.
1247,1250(2000)(noting between
relationship couples'economic to-
goalsandattitudes
wardmarriage) .
272. See supranotes73-74(discussing outcomes
relationship ofcohabiting
couples);
seealsoStephen L. Nock,A Comparison ofMarriages andCohabiting 16J.
Relationships,
Fam.Issues53,56-58(1995)(noting lowerlevelsofcommitment incohabiting
couples).
years,many informalunions either end or transitionto marriage.273Like

same-sex couples, some different-sexcouples may deal with the uncer-
taintyof theirrelationshipsby enteringinto collaborative contractsin the
early experimental phase. But as other scholars have noted, cohabiting
couples infrequentlyexecute formal contracts regarding propertyshar-
ing and future support: Plausibly this is because many couples who
collaborate successfully see marriage as a superior option to formal
contracting.274
Unlike the pattern observed among same-sex couples, there is little
evidence that cohabiting couples generally affiliate in normative
communities that support and reinforce their familyrelationships. This
also is likelydue to the variations among cohabitant relationships. Cou-
ples who eschew commitmentlikelyhave littlein common with those in
long-term,marriage-likeunions (who indeed may present to the commu-
nityas married couples).275Moreover,social class plays a role in cohabita-
tion patterns,with poor and less educated couples being more likelyto
dissolve their relationships and less likely to marrybefore having chil-
dren than those who are more educated.276This diversitylikelydeters the
development of collaborative networksthat reinforcebehavioral expecta-
tions promoting care and interdependence. Stephen Nock has argued
that, in contrast to marriage, cohabitation is "under-institutionalized,"
lacking a strongset of stabilizingsocial norms.277Consistentexpectations
273. The NationalSurvey ofFamily Growth foundthatfortypercent offirstcohabita-

tiontransitioned tomarriage bythreeyears. Copen,Daniels8cMosher, supranote73,at5.
Manyofthesecohabiting coupleslikelyaredetermining whethertheywanttoundertake a
moreseriouscommitment to one another. Almost halfoftherelationshipsthatdid not
transition to marriage (twenty-sevenpercent ofthetotalgroup)dissolved in threeyears;
thirty-twopercent wereintact atthreeyears. Id.
274. See Ellman,Contract Thinking, supranote188,at 1375(describing successful
marriages as not"baseduponparties'compliance withanyagreement explicitenoughin
itsterms forthelawsensibly totreatitas a contract").Same-sexcoupleswhocannotmarry
areoftenadvisedtoexecutecontracts toafford totheirrelationships.
legalprotection See,
e.g.,ModelCohabitation Agreement, supranote 213. Different-sex coupleshavethe
optionofformalizing theircommitment through whichmanydo. Cf.Ellman,
marriage,
Contract Thinking, supranote188,at 1380(notingsame-sex couples'greaterinterestin
contract duetounavailability ofmarriage).
275. See Friedman, 24 Cal. Rptr.2d at 894 (describingsituation
in whichassociates
thought coupleintwenty-one-year relationshipweremarried).
276. See Carbone8cCahn,supranote68,at 13-20(providing generaldiscussion of
roleofsocialclassin cohabitation patterns);see also Edin8cKefalas, supranote69,at
104-37 (discussing attitudestowardmarriageamong poor women);cf. VivianE.
Hamilton, Family Structure, Children, andLaw,24 Wash.U.J.L.8cPol'y9, 14n.22(2007)
("[Cļhildren in. . . cohabitingfamiliesarealmostthreetimesas likely tobe pooras chil-
drenin married-parent families."
(quoting AdamThomas8cIsabelSawhill, ForLoveand
Money? TheImpactofFamily Structureon Family Income,FutureChild.,Fall2005,at57,
63)).
277. See Nock,supranote272,at 55 (describing cohabitation
as underinstitution-
alized).
for cohabitants' behavior or goals would fitpoorly with the broad range
of relationshipsin the category.
Nor do we find evidence that groups of cohabitants or their advo-
cates collaborate to further their common interest in attaining legal
protection. Cohabitants experience most of the legal disadvantages that
same-sex couples have suffered: They are excluded from government
benefits conferred on married couples and other legal protections;
moreover, absent contract, the parties have few obligations to one
another.278 Yet the response to these exclusions has been relativelypas-
sive. To be sure, advocates for poor families, which include many
cohabitants and their children, seek generally to better lives strained by
poverty.But these effortsfocus largely on improving child welfare and
not directly on extending legal recognition to cohabitants.279There
appears to be no evidence of networkformationaimed at extending legal
protection to cohabitation as a familycategory.Perhaps this is because
the vulnerabilityof nonmarital unions can easily be remedied by mar-
riage. Straight couples likely sometimes marry to avoid the frustration
and harms of nonmarital status,even if theirpreference mightbe to con-
tinue to cohabitate. Those cohabitants who do not marrymust solve a
difficultcollective-actionproblem if theyare to pursue legal recognition
and protectionof theirnonmaritalfamilies.
The process of normativeintegrationinto the larger communityalso
has not proceeded in a waythatwould position cohabitants to attain legal
protection. The LGBT drive to attain familyrightswas instrumentalin
fosteringnormative integration of same-sex couples into the broader
communityand in shaping public attitudesabout the character of their
family relationships. Cohabitants are not subject to the hostilitythat
same-sex couples endured; thus,in some sense, informalfamiliesalready
enjoy public acceptance. But this does not translateinto public support
for elevating cohabitants to the status of fullyprotected legal families.
This is not surprisingsince cohabitants have not signaled their commit-
ment to family-functioning norms. Instead, the wide range of cohabiting
relationships means that the signals are noisy: Couples in casual or tenta-
tive relationships do not signal long-termcommitmentwhile many cou-
ples in durable and committed unions often do not announce their
unmarried statusat all.280
2. Cohabitationand the Verifiability Problem.- Even if cohabitants
formed networks to advocate for legal recognition of their families,
278. See Ellmanet al.,supranote52,at 967-73(describing lackoflegal

cohabitants'
protectionsenjoyedbyspouses);supratextaccompanying notes48-58 (discussing
legal
rights, andbenefits
obligations, ofmarriagenotconferred .
on cohabitants)
279. See McLanahan 8cGarfinkel,supranote27,at 149,154-57(presentingevidence
ofpooreroutcomes in childdevelopment andhealthin childrenborntounmarried par-
entsandarguing forvarious .
reforms)
280. See Friedman 2d at894-95(describing
, 24 Cal.Rptr. inwhichassociates
situation
assumed long-termcohabitantsweremarried) .
regulatorswould face difficulty in verifyingcohabitation as a familycate-

gory. The broad range of cohabitants includes many couples who lack
the qualities of well-functioningfamilies but who may seek familystatus
with its benefits and privileges. Coresidency in an intimate union is
unlikelyby itselfto serve as an adequate basis for designating informal
dyads as families, and sorting couples in committed relationships from
less deserving types poses a challenge for regulators. Because informal
unions lack the clear commitment signal provided by registration,281
accurate determination of familystatus requires a costlyfactual inquiry
that threatens privacy282 and is prone to error. Courts have occasionally
been willing to make these determinations,but typicallyit has been in
situations where simpler mechanisms for signaling family status are
unavailable.283As the lukewarm response to the ALI Domestic Partner-
ship Principles demonstrates,state actors resortonly reluctantlyto thisex
post approach to determiningfamilystatus.284
Some cohabiting couples are clearly in family relationships, and
regulators may be able to employ a few straightforward proxies to mini-
mize verifiabilityproblems. For example, biological parenthood could
serve as a basis for creating familybonds between cohabiting parents.
Currently,unmarried parents living together have no financial or other
duties to one another,although both parents have substantialobligations
to their children. The combination of shared parenthood and cohabita-
tion could function as a verifiableproxy subjecting the couple to family
obligations and entitlingthem to the benefitsthat legal familiesenjoy.285
Cohabitants can also be classified on the basis of the duration of their
unions. Most cohabiting couples separate or marryin a fewyears:A cou-
ple who live together for fiveyears or more can be assumed to be in a
marriage-likerelationship, with the attendant rights and duties, unless
theyopt out contractuallyfromfamilyobligations.286 Well-designedprox-
ies such as these would allow regulators to sort cohabitants in family
281. Forexample, marriage licensing is themechanism forimposing binding obliga-

tionsof mutualcareand interdependence, whichcohabitants onlyundertake through
contract.
282. See Case,Marriage Licenses,supranote178,at 1772-73(showing howlicensing
ofmarriage protects againstintrusive
government inquiry) .
283. See supranote81 and accompanying text(discussing judicialrecognition of
functionalfamily relationships);see also supranotes209-212and accompanying text
(discussingcasesinwhichcourts enforced agreements between cohabitants).
284. See Clisham8cWilson,supranote 189,at 576 (finding littleimpactof ALI
Domestic Partnership Principleson statelegislatures)
.
285. See Weiner, supra note 58, at 135-36 (arguingfamily rightsand obligations
towardoneanother shouldbe assigned tocohabitants whohavea common child);seealso
Cynthia GrantBowman,Social Scienceand Legal Policy:The Case of Heterosexual
Cohabitation,9J.L.8cFam.Stud.1,45-48(2007)(presenting similar
argument).
286. See Elizabeth S. Scott,Marriage, Cohabitation and CollectiveResponsibilityfor
Dependency, 2004U. Chi.LegalF. 225,259 (arguing coupleswhohavecohabited forfive
yearstypicallyare in marriage-likerelationships and shouldbe subjectto defaultrules
regulatingproperty sharingandsupport on divorce).
relationships from those whose commitment (and social value) is less

compelling.
C. NovelFamilies: NavigatingNew Territory

Non-dyadic
Both same- and different-sexcohabiting couples are in intimate
dyadic relationships and have been measured against a template based
on marriage. For same-sex relationships,this familiarmodel has simpli-
fied and facilitatednormativeintegrationand, ultimately,verificationby
regulators of the qualities of couples aspiring to gain legal protection.
Other aspiring families,however,may lack ready models of familybehav-
ior to provide them with normative guidelines or to assist others in
evaluating their functioning.Polygamous, multigenerational,and volun-
tarykin groups may all function as viable families, but to some extent
theyare pioneers adapting behavior and structuringfamilyobligations to
suit their unique forms. To be sure, some such families- such as
multigenerational relationshipsare familiar, but they have thus far
functioned informallywithoutthe goal of full legal protection.287 In gen-
eral, these novel families face the initial task of structuringtheir family
relationshipsthrough experimentation and adaptation without the tem-
plate thatmarriage provides.
These groups are characterized by one of two features- some by
both- that distinguish them from families modeled on marriage. The
firstis that they often include more than two adult parties.288A group
that includes multiple adults is more complex than a dyad in ways that
generate uncertaintyabout its functioning.Avoiding exploitation,impos-
ing obligations fairlyand efficiently,and protectingthe interestsof adult
members who dissent from decisions by the majorityrequire more com-
plex mechanisms than are needed to regulate an equalitarian dyad.289
Second, while polygamous relationships involve sexual intimacy,other
aspiring unions are not based on conjugal bonds among the adults. The
combination of multiple parties and asexual relationshipscreates uncer-
tainties about the stabilityand functioningof these novel families that
are differentfrom,and possiblygreater than, those familiesbased on the
model of marriage. For multigenerationalgroups, of course, this uncer-
taintymay be offsetby genetic ties and by historical tradition.But other
287. Grandparents in the1980sand 1990sdidlobbysuccessfullyfortheenactment of

See Ellmanet al., supranote52, at 732-33(discussing
statutes.
grandparent-visitation
grandparents'visitationrights). 530U.S. 57,63 (2000) (hold-
Butsee Troxelv.Granville,
ingapplication of Washington grandparent-visitation violatedparents'constitu-
statute
tionalrights);Moorev. Cityof E. Cleveland, 431 U.S. 494,499-500(1977) (rejecting
zoningordinancethateffectively excludedgrandparent raisingher grandchild from
definition ).
of"family"
288. A multigenerational kinfamily
or voluntary couldincludejust twoadults,but
many willincludemore.Forsimplicity,thisArticle withdyads.
doesnotdealspecifically
289. See Davis,supranote8, at 1958-61(explaining governance facing
challenges
polygamous groups andoffering modelinresponse).
partnership
non-dyadic groups may face greater challenges in demonstrating their

viabilityas stable families.
1. PolygamousGroups.- In the currentclimate, it may seem fanciful
to discuss the path to legal recognition for polygamous familyaspirants.
In contemporary American society,polygamyis largely associated with
fundamentalist Mormon communities and other notorious cultlike
groups that are generallyviewed with hostilityfor posing a severe risk to
teenage girls who reportedlyare coerced into sexual relationships with
older men.290On this ground, fundamentalistMormons have been sub-
ject to child-protectioninterventions,and their leaders have faced crimi-
nal prosecution.291These groups are deeply hierarchical, with women
occupying subservientpositions in a male-dominated oligarchy- a family
structurethat is discordant with contemporary norms of gender equal-
Finally,because outlaw polygamous groups include a small number
ity.292
of (usually older) men with many wives,young men are often expelled
from their communities.293It is fair to say that polygamous families are
unlikelyto attain public acceptance or legal recognition so long as funda-
mentalistreligious polygamistsrepresentthe archetypicalmodel.
But attitudes toward polygamyappear to be softeningsomewhat, as
evidenced by the popularityof the televisionseries Big Love and the real-
290. TheFundamentalist ChurchofJesusChrist ofLatterDaySaints(FLDS) is ledby

Warren Jeffs,whohasbeenconvicted in several
statesofcriminal offenses relatedto the
coercion ofminorgirlsto "marry" adultmen.See MarkShurtleff, Religion andNon-State
Governance: Warren Jeffsand theFLDS,2010UtahL. Rev.115,118-21(transcribing
then-sitting UtahAttorney General'sspeechdiscussing Warren Jeffs and his criminal
history withminors).A polygamous cult,the BranchDavidians, attracted worldwide
notoriety whenitengagedin a shootout withfederal agentsresulting in dozensofdeaths
at itscompoundnearWaco,Texasin 1993.Branchleader,DavidKoresh,had multiple
"spiritual"wives, includingreportedly underageminors. See MalcolmGladwell, Sacred
and Profane: HowNotto Negotiate withBelievers, NewYorker (Mar.31,2014),http://
www.newyorker.com/magazine/201 4/03/31 /sacred-and-profane-4(on filewiththeColumbia
LawReview) (discussingDavidKoreshanddetailing events atWaco).
291. In a notorious Texascase,allegationsofsexualabuseofunderage girlsledtothe
removal of468children bytheTexasDepartment ofFamily andProtective Services
from
theYearning forZionRanch,a FLDS community. In reTex.Dep'tofFamily & Protective
Servs.,255 S.W.3d613, 613-14 (Tex. 2008). The Texas SupremeCourtupheldan
appellate court's ordervacatingstatecustody,finding that,despiteevidence ofa patternof
sexualabuseofpubescent girlson theranch,children notatriskwereremoved andthose
atriskcouldhavebeenprotected without removing themfromtheirparents' custody.See
id. at 615 (notingFamily Code did notgivecourtsauthority to removechildren from
home,though othermeans - suchas protective orders - couldbe employed).
292. SeeJonKrakauer, UndertheBannerofHeaven:A Story ofViolentFaith11-15
(2004) (describing fundamentalistpolygamous family in whichwomenare taughtto
follow "
strictly obedience").
[p]erfect
293. SeeJulianBorger, TheLostBoys,Thrown OutofUS Sectso thatOlderMenCan
MarryMoreWives,Guardian(June13, 2005,7:02 PM),http://www.theguardian.com/
world/2005/jun/14/usa.julianborger (onfilewiththeColumbia LawReview) (notingthere
areover1000"lostboys"whohavebeen"separated fromtheirparents andthrown outof
theircommunities bya polygamous sectto makemoreyoungwomenavailableforolder
men").
ity show Sister Wives, both depicting rather conventional polygamous

families.294Further,the legal basis for prohibiting polygamous families
may be eroding. In 2013, in a case involvingthe familydepicted in Sister
Wives , Utah federal districtcourt held unconstitutionala state criminal
a
ban on polygamy.295 Fundamentalist Mormon men practicing polygamy
typically enter multiple religiousmarriages but have only one legal wife.
On this basis, the court applied Lawrencev. Texasto hold that the prong
of the Utah bigamy statuteprohibitingcohabitation by a legally married
person violated the individuals' right of privacy protected under the
Fourteenth Amendment.296Further,the court found that the Utah law
interfered with the free exercise of religion in targeting a particular
group.297 None of this indicates that polygamy has gained public
acceptance, but it does suggest some change in public attitudes and a
movement toward decriminalization, an essential step in the process
leading to legal recognition.298
Although some polyamorous groups may value the fluidityand lib-
ertythat parties in unregulated relationshipsenjoy,299 others (such as the
hypotheticalpolygamous family described in Part II) mightaspire to rela-
tionships based on commitment and interdependence.300For those in
294. See generally KaitlinR. McGinnis, Casenote,Sister Wives: A NewBeginning for

UnitedStatesPolygamist Families on theEveofPolygamy Prosecution?, 19Vili.Sports&
Ent.L.J.249,257-60(2012) (discussing impactof Sister Wives and BigLoveon public
of
perception polygamous relationships). The websiteofSisterWives describes thepurpose
oftheshowas showing viewers howthepolygamous Brownfamily "navigate [s] lifeas a
'normal'family in a society thatshunstheirlifestyle." What'sNewwiththeSisterWives,
TLC, http://www.tlc.com/tv-shows/sister-wives/about-the-show/about-sister-wives/ (on file
withtheColumbia LawReview) (lastvisitedFeb.4,2015).
295. Brown v.Buhman, 947F.Supp.2d 1170,1234(D. Utah2013).Brown rejected the
authorityofReynolds v.UnitedStates, 98 U.S. 145(1879),a nineteenth-century Supreme
Courtopinionupholding theconstitutionality ofsucha ban.See Brown , 947F.Supp.2d at
1189("[T]hecourtbelieves thatReynolds is not,orshouldno longerbe considered, good
law,butalsoacknowledges itsambiguous status ").
296. See Brown , 947 F. Supp.2d at 1222-25("Thecohabitation prongoftheStatute
doesnotsurvive rationalbasisreview andmustbe stricken as a violation ofsubstantive due
processunder Lawrence"). Other courts have See,
disagreed. e.g., State v.Holm, 137 P.3d
726,743 (Utah2006) (holdingpolygamy marriage
implicates and thusis outsideprivacy
protection ofLawrence).
297. See Brown , 947F.Supp.2d at 1209-21(noting cohabitation prongoflawwasnot
"operationallyneutral").
298. Of course,Lawrence v. Texasprovidedthis step in the marriage-equality
movement.
299. See Emens,Monogamy's Law,supranote35,at 309-30(discussing commitment
tofreesexualexpression among many .
polyamorists) Some advocates for polyamory may
respondsimilarly to criticsarguing thatthemarriage-equality movement haslimited the
freedom ofgaystolivetheirintimate livesfreeoftheconstraint ofmarriage. See Franke,
Longing, supranote59, at 2689 ("The challengeof thismoment is to conceptualize a
legalstrategythattakes on the exclusivityof marriageby repudiating the homophobia that
underwrites theexclusive, whilenotratifying thenormative priority ofmarriage.").
300. One polyamory website reports polyamorous groups in committed partnerships
and undergoing commitment ceremonies. LovingMorePolyamory Frequently Asked
the latter category,familystatus may be a desirable goal, made more

plausible by the success of the LGBT marriage-equalitymovement.301
Aspiring polygamous families confront two challenges, one common to
multipartyadult relationships generally and the other familiarfrom the
LGBT experience. Like other familieswith multiple adults, polygamous
groups aiming for recognition must create governance structuresthat
promote stability,while ensuring a fair distributionof rightsand obliga-
tions,withoutthe guidance provided by the dyadic model of marriage. In
addition, like same-sex couples, polygamous groups face the formidable
challenge of moving from outlaw status to integrationinto the broader
normative community. Moreover, aspiring polygamous families must
overcome a challenge not confronted by gays and lesbians- the reputa-
tional harm created by the actual practices of fundamentalist
polygamists.302
The firstchallenge for aspiring polygamous families is to create a
collaborative agreement sufficientto overcome high levels of uncertainty
about the viability of this relationship form. Multiparty contracting
requires more complex governance structures than does bilateral
agreement.303In addition to the challenge of specifyingmutual obliga-
tions and responsibilities,parties must structuretheir relationships and
performance to avoid exploitation of all members and also address the
key question of how to resolve disagreements.304 Adrienne Davis has sug-
gested that this challenge can be met by adapting the default rules
governing partnership relationships.305These rules protect dissenting
members from exploitation by the majorityand permit exit from the
partnership by dissenting minorities under specified conditions.306In
addition, the parties can contractfor a unanimityrule governingall fam-
Questions orFAQ,LovingMore,http://www.lovemore.com/faq LovingMore

[hereinafter
FAQ](onfilewiththeColumbia LawReview) (lastvisitedFeb.4,2015).
301. See Davis,supranote8, at 1957(describing howbothsupporters anddetractors
ofpolygamous-marriage rights viewgoalas moreplausible inwakeofmarriage for
equality
gays).
302. See supranotes290-293andaccompanying text(describing
association
ofFLDS
withsexualabuseandotherharmstochildren). In contrast,
no evidence
supportsallega-
tionsthatchildren ofgayparents sufferharmbyvirtue oftheirparents'
sexualorientation.
See supranotes259-261andaccompanying text(discussingcasesthathaverejectedsuch
allegationsas groundless)
.
303. Fabrizio Cafaggi, Introduction to Contractual Networks,Inter-Firm
Cooperation
andEconomic Growth 9 (Fabrizio Cafaggied.,2011) (discussing complexityofmultiparty
contractsincommercial context) .
304. As ourcolleagueLiz Emenspointsout,theriskofcoercionmaybe as greatin
dyadicrelationships.
305. Davis,supranote8,at2003-04.
306. Somepolygamists favora structure in whichtheentity endures,butindividual
members arefreetowithdraw. See Davis,supranote8, at 2011-12(likening pluralmar-
riagesto commercial associations, as members in bothmaydesireto remainassociated
uponanother member's exit). A partnership modelofgovernance wouldincorporatethe
dutiesofcareandloyalty.
fiduciary
ily decisionmaking. Here, the threat of dissolution of the relationship

should the parties fail to agree on a course of action deters frivolousdisa-
greements and encourages compromise. Under this regime, parties are
able to learn rather quickly whether their partners are capable of ade-
quate family functioning and whether they have the capacity for
collaborative decisionmaking. Such an environment has been shown to
create bonds of trustin commercial relationshipsbased on similarcollab-
orative structures.The success of multipartyprofessional partnerships
and other commercial collaborations suggests that there are available
models to solve the contractingproblems facing polygamous groups who
wish to testthe durabilityof theirrelationshipthroughcontract.
But even if individual polygamous relationships can be sustained
throughcollaborative and formalcontracting,these groups face a daunt-
ing taskseeking to move fromoutlaw statusto integrationwiththe larger
normativecommunity.Just as same-sex intimacyweiscriminalized in the
pre-Lawrence era, (at least some) polygamous unions are oftenprohibited
under criminallaw.307 For thisreason, polygamous groups are likelyto be
secretive; as with same-sex couples, this inhibitsthe formationof norma-
tive networksand, ultimately,acceptance by the broader social commu-
nity.Moreover, a powerful strategydeployed by LGBT-rights advocates
for gaining public acceptance and legal reform, the identification of
same-sex unions with marriage, is likely not available to polygamous
groups. Further,stable commitment may seem to be incompatible with
the simultaneous maintenance of multiple intimate relationships; if so,
polygamous relationshipsmay be perceived as offendingthe strongsocial
norm against adultery.
But polygamistshave been heartened by the LGBT movement, the
success of which may function as a catalystthat emboldens polygamist
groups to live more openly and to pursue legal recognition of theirfam-
ilyrelationships.If these groups functionas stable, caring units in which
adult members relate to one another on the basis of equality and minors
are not exploited, polygamous families plausibly can signal to the larger
communitythat theyare committedto family-functioning norms. As with
the LGBT marriage-equalitymovement, a key element of this process is
the formationof networksof aspiring familiesand their advocates. Effec-
tive legal and social advocacy by norm entrepreneurs on behalf of
contemporary polygamous groups might gradually supplant religious
polygamistsin the public imagination. Indeed, the process of network
formationhas begun, facilitatedby the Internet,with the emergence of
interestgroups whose goals are to promote interaction among polyga-
mists,disseminate informationto correct negative impressions,and ulti-
SupportCtr.,The Primer:
307. See,e.g.,The Family A Guidebook forLawEnforce-
mentand HumanServices Agencies Who Offer to
Assistance Mormon
Fundamentalist
Families53-59 (2011),availableat http://www.familysupportcenter.org/Primer.pdf
(on
filewiththeColumbia LawReview) lawsthatcanbe usedagainst
(cataloguing polygamists
invarious .
states)
mately acquire plural-marriagerights. The website of one such group

announces that "[f]reely-consenting, adult, non-abusive, marriage-
committedpolygamyis the next civilrightsbattle."308
Polygamistsface particularlydaunting challenges in attaining state
certification.Because the form is not modeled on the familiar marital
dyad and because of the sordid and familiarrecent historyof polygamy,
the state will require extraordinaryassurances that these new familiesare
differentfrom fundamentalistcults. Because of these unique obstacles,
transparencyand cooperation withregulatorswill likelybe essential. The
model developed in Part II predicts that an iterativeprocess of collabora-
tion to develop and enforce best practices offersthe most plausible path
for polygamiststo attain familystatus. To be sure, the goal of attaining
marriage rightsfor polygamistsmay currentlyseem unlikely,but Buhman
and other recent developments hint that the legal prohibition of and
moral distastefor multipartyintimateunions is beginning to erode. If so,
polygamous groups may well be in the early stages of the evolutionary
process thatleads to legal recognition.309
2. NonconjugalAspiringFamilies.- Aspiring nonconjugal families
include groups that are trulycontemporary and those that are quite
familiar;both confrontunique challenges in attaininglegal recognition.
Some aspiring families,such as voluntarykin groups, have only recently
attracted public interest and attention.310Others, such as multigenera-
tional families,have deep roots in American societyand have been recog-
nized by the Supreme Court as having constitutionallyprotected family
status for some purposes.311Nonconjugal groups have some advantages
as aspiring families. They avoid the destabilizing risk of infidelityand,
because their nonsexual bonds do not incite moral disapproval, theyare
unlikely to stir public opprobrium. In this regard, the process toward
legal recognition may be smoother than that of same-sex couples or poly-
gamous groups. But paradoxically, the absence of conjugal ties may
generate skepticism about the durability and stability of some
nonconjugal affiliations.Because the legal familyhas long been modeled
308. Pro-Polygamy.com, (on filewiththeColumbia

http://www.Pro-Polygamy.com Law
Review)(lastvisited
Feb.4, 2015).Websiteshavebeenveryimportant in themovement to
createnetworks and gainpublicacceptanceof polygamy. See, e.g.,LovingMoreFAQ,
supranote300 (providing informationaboutanddismissing myths relatedtopolyamory).
Pro-Polygamy.com aimsto provideinformation to mediaoutletson contemporary poly-
amoryand to dispelmyths aboutpolygamous as abusive.Id. Network
relationships for-
mationis alsopromoted whichallowspolygamist
bywww.polygamylifestyle.com, groupsto
findothersintheirlocality.
See Polygamy supranote142.
Lifestyle,
309. Cf.Goldfeder,supranote1 (notingpublicopinionremains in favorofbanning
polygamy butconcedingpubliccannot"continue ignoringthepolygamists' clamorfor
acceptance").
310. See,e.g.,Angier,
supranote29 (examining recenttrends in familycomposition
anddiscussingvoluntarykinrelationships)
.
311. See,e.g.,Moorev.CityofE. Cleveland,431U.S. 494,498-500(1977) (recogniz-
ingrightofgrandparent tolivewithgrandchild).
on marriage, nonconjugal groups may need to overcome an implicit

assumption that a sexual bond reinforcesfamilycommitment between
unrelated adults. Moreover, like polygamous groups, multimembernon-
conjugal familyaspirants need to create governance structuresthat pro-
mote commitment and avoid exploitation. Finally, some nonconjugal
relationships (particularlyvoluntarykin) fill importantfamilyfunctions,
but the parties themselves do not expect the group to satisfythe full
range of dependency needs.312In short,the evolutionaryprocess whereby
these groups mightacquire legal protection remains unclear.
a. MultigenerationalGroups. - These obstacles may be least likelyto
impede legal recognition of multigenerationalfamilies. Extended fami-
lies have the benefitof both deep historicalroots and genetic bonds, ties
that are assumed to form a solid basis of familycommitment. Indeed,
until the twentiethcentury,when the two-parentnuclear familybecame
the norm, multigenerationalfamilieswere verycommon. The Supreme
Court, in an opinion rejectingthe constitutionalityof a zoning ordinance
that prohibited a grandson from living in his grandmother's home,
famouslynoted that extended families have played an importantrole in
American societyfor centuries.313But despite the fact that multigenera-
tional families are recognized for some limited legal purposes,314and
generally are regarded favorablyin the public imagination,315for the
most part these familiesfunctioninformallyand do not receive the legal
protectionof maritalfamilies.
In part, this may be due to the complexityof extended familiesand
uncertaintyabout which genetic family members are, or should be,
recognized as a legal family.A familywith multiple adults of different
generations may include some who are eager to assume durable family
obligations in an extended familyunit and others whose affiliationsare
more attenuated,and who may preferto formsmaller unitswithnonfam-
ilypartners.Some members may reside with the group for a period and
312. See infranotes323-324and accompanying text(discussinglimited functions of

somevoluntary kingroups).
313. See Moore, 431U.S.at504("Oursisbyno meansa tradition limited torespect for
thebonds... ofthenuclearfamily. The traditionofuncles,aunts,cousins,andespecially
grandparents sharinga householdalongwithparentsand childrenhas rootsequally
venerableandequally deservingofconstitutional
recognition.").
314. Examplesincludestatutes imposing obligationson adultchildrento carefor
parents,grandparent-visitation and
statutes, See,e.g.,23 Pa.
statutes.
intestate-succession
Cons.Stat.Ann.§ 4603(a)(1) (West2010) (imposing careobligationson adultchildren);
Troxelv. Granville, 530 U.S. 57, 72-73 (2000) (decliningto strikedowngrandparent-
statute
visitation butfinding itviolatedparental as applied);Kristine
rights S. Knaplund,
Grandparents Raising Grandchildrenand the for
Implications Inheritance,48 Ariz.L. Rev.
1,22 (2006)(discussing intestate-succession
statutes).
315. See,e.g.,Constance Rosenblum, TogetherAgain:Multigenerational Households
on theUpswing, N.Y.Times(Dec. 13,2013),http://www.nytimes.com/2013/12/15/real
(on filewiththe
estate/multigenerational-households~on-the-upswing.html?pagewanted=all
ColumbiaLawReview) .
then depart. If legal recognition is justified for multigenerationalgroups

withstable long-termcommitmentsto provide mutual care, the state will
require a sorting mechanism- beyond genetic ties- to separate those
members that fulfillfamily-functioning needs fromthose that lack either
the willingnessor the capability (or both) to fulfillthe familialrole.
Probably the strongestcandidate for full familystatus is the linear
familygroup composed of grandparent(s), parent(s), and child(ren). It
is clear that this familiartype of extended familycan function satisfacto-
rilyto fulfillfamilyfunctions.Further,the genetic bond among the mem-
bers, together with well-definedfamilyroles, reinforcesalready existing
norms of commitment and caring. The primary challenge for these
extended families may be the creation of networkswith other similar
families to pursue their goals of increasing public support and attaining
officialfamilystatus.316More complex multigenerational groups pose a
greater challenge because they are less familiar to the public and less
likely to be bound by family-commitment norms than are linear family
groups. Partly for this reason, regulatorsmay find it more difficultto ver-
ify the family functioning of these unconventional multigenerational
groups.
b. VoluntaryKin Groups. - Voluntary kin groups have recently
received media attention,317 but generallytheyare relativelyunfamiliarto
the public and to regulators. In part, their emergence can be explained
as a product of deficits in the functioning of more traditional family
formswith the increase in divorce and decline of extended families in
recent decades. Thus, some groups of voluntarykin function as substi-
tutes for marriage or other familyrelationships.Lacking genetic or legal
ties, members assume certain familyroles and insist that their relation-
ships are not simplyfriendships.318 These groups can take many forms:
Variations include two or more divorced or widowed adults, sometimes
with their minor children; a parent who has lost an adult child and a
younger adult who has assumed that role;319and adult friends who
decide to live together,share resources, and care for one another in a
316. Anestablishedgroupsuchas theAARPmight be enlisted toassistin thisproject.

The AARPeffectively advocatedforlawsallowing grandparent visitationin the 1980s,
mobilizing grandparentsacrossthecountry. See NatalieReed,Note,Third-Party Visitation
Statutes:WhyAreSomeFamilies MoreEqualthanOthers?, 78 S. Cal.L. Rev.1529,1536-
37 (2005)(describingroleofAARPinlobbying infifty
successfully states
forstatutes).
317. See,e.g.,Angier,supranote29 (reporting onvoluntary kinfamilies).
318. See Braithwaiteetal.,supranote4, at 396-402(describing typesofvoluntary kin
relationships);MariekeVoorpostel, Justlike Family:FictiveKin Relationships in the
Netherlands,68J.Gerontology: SeriesB: Psychol.
Sci.& Soc.Sci.816,816 (2013) (noting
fictive
kinrelations"comeintoplaytofillfamily-likerolesandfunctions").
319. See, e.g.,Angier,supranote29 (detailing voluntary kinrelationship between
orphaned friendofdeceasedmananddeceased'smother).
nonconjugal group.320The latter affiliationmay include retired seniors

who decide to live togetherformutual companionship and support.321
In one sense, the path to legal recognition mightbe less difficultfor
these aspiring families than for gay couples or polygamous groups
because voluntarykin are less likelyto face public enmity.Moreover, in
contrastto some relationshipsbased on sexual intimacy,these nonconju-
gal groups are formed specifically (and solely) for the purpose of ful-
fillingfamilyfunctions.322 But voluntarykin groups have many varying
goals and expectations about their family roles. While some live as
committed interdependent families, researchers report that in many
relationships the voluntarykin do not purport (or aspire) to satisfythe
fullrange of familyfunctions.323 Sometimes the relationshipis viewed as a
supplement to other primaryfamilyrelationships. For example, lesbian
parents may have a relationship with their child's biological fatherwho
an
plays important role in the child's life but does not assume other fam-
ily obligations.324As with cohabiting couples, this varietypredictablycan
impede the formation of networks based on common interests and
complicate the ability signal the family-likenature of the category.Of
to
course, unlike cohabitants, committed voluntarykin cannot marryand
thus groups that do functionfullyas familiespredictablycan signal their
nature more effectively than can cohabitants.
One issue raised by the possibilityof assigning familystatusto volun-
tary kin and other multi-adultfamilygroups is whether the size of these
groups is self-limiting.As suggested above, increasing the number of
adults adds complexityand costs to familyrelationships,along with the
risk of exploitation, shirking,and other potential harms.325These risks
320. Asexualindividuals whoseekto formfamilies wouldbe voluntary kingroups.

Asexualcouplescould"pass"as a married couplebutthiswoulddenytheiridentity. Fora
discussionofasexualidentity, Elizabeth
see generally F. Emens,Compulsory Sexuality, 66
Stan.L. Rev.303(2014).
321. A Canadianstudyfoundthateightpercentof widowedindividuals includea
friendindescriptionsoffamily.LawComm'nofCan.,supranote1,at5. A variation is the
naturallyoccurring retirement community or NORC.See NORCs:An Agingin Place
Initiative,
www.norcs.org(lastvisitedFeb. 4, 2015) (promoting communities of "older
adultswhowereliving inmarket rateapartment buildings . . . whereolderadultswerethe
predominant residents").
322. OurcolleagueBertHuangmadethispoint.
et al.,supranote4, at 396-402(listing
323. See Braithwaite functionsofkingroups);
see also Angier,supranote29 (discussing Dr. Braithwaite 's researchon voluntary kin
relationships).
324. Morebroadly, de factoparentsrepresent a category ofvoluntary kinthatmay
sometimes be inlimitedfamily roles.Olderadultsmayassistoneanother inrealizing their
healthcareand othercaregiving needsbutnotbe financially interdependent,and mem-
bersmayhaveallegiance to theirprimary families.
biological etal.,supra
See Braithwaite
note4,at396-402(describing various of
types voluntarykin family .
relationships)
325. See supranotes303-306and accompanying text(discussing theseproblems in
polygamous groups);see alsoRobertEllickson, The Household:Informal OrderAround
theHearth76-85(2008)(discussing costsandbenefitsofincreased householdsize).
may tend to increase as members are added, with the result that only
multipartygroups withrelativelyfewmembers are likelyto functioneffec-
tivelyin fulfillingfamilyfunctions. Limitations on the size of aspiring
familiesthat are able to qualifyforlegal recognition forestallthe possibil-
itythat communes or cult groups might registeras a voluntarykinship
family.
A final important question that we note but do not fullyaddress is
raised by the heterogeneity of voluntary kin groups (and some
multigenerationalfamilies), withmany fulfillinga limited range of family
functions.Here the question is whether these limited purpose relation-
ships are likelyto acquire legal recognition through the evolutionarypro-
cess described above. To be sure, many individuals in voluntarykin rela-
tionships, like some cohabitants, prefer to maintain informal ties. But
others may desire legal enforcement of the particular rightsand obliga-
tions that they have assumed and seek protection of those family
bonds.326Suggestive evidence of groups attaining limited familyrights
supports the plausibilityof this outcome through some variation of the
process we describe. For example, grandparentshave lobbied successfully
(with the assistance of the AARP, a powerfulinterestgroup) to enact stat-
utes thatgive them standing to seek visitationwiththeirgrandchildren.327
Moreover, at least one state has enacted a statute that allows couples to
customize their family relationships by executing "designated benefi-
ciary"agreements in which each partychooses to extend particularrights
and protections to the other from a menu of options.328It may be that
the path to legal protection of more limited familyrelationships raises
feweror differentchallenges than those faced by groups who aim to gain
social and legal recognition as fullyfunctioning families. But, in any
event,that analysisis beyond the scope of thisArticle.
326. Theinvolved biologicalfather ofa childraisedbylesbianparents isoneexample.

327. See Ellmanetal.,supranote52,at732-33(describing enactment ofgrandparent
statutesacrossthecountry) . Grandparent websitesprovideinformation aboutgrandparent
rights.E.g.,Am.Grandparents Assoc.,www.grandparents.com (on filewiththeColumbia
LawReview) (lastvisited
Feb.4, 2015).Moreover, somestatesauthorize visitation
byde
factoparents basedon thefulfillment ofparental foran extended
obligations periodof
timewiththeconsent ofthelegalparent.See,e.g.,V.C.v.M.J.B., 748A.2d539,555 (N.J.
2000) (authorizing custody orvisitationbyde factoparentanddescribing These
factors).
factorseffectivelyrequiresubstantialevidenceofcommitment to theparental roleanda
contractual understanding between thede factoandlegalparent. Butwehavenotfound
evidence ofnetworking or advocacy tofoster publicacceptance. See supranotes276-278
and accompanying text(describing cohabitation and cohabitants'
patterns advocacy
.
strategies)
328. See Colo. Rev.Stat.Ann.§§ 15-22-101 to -112(West2011).The partiesto the
designated beneficiary
agreement (DBA) mayselectanyofthesixteen rightsandprotec-
tionson thestate-provided form.Id. § 15-22-106.Theserightsinclude jointownership of
property, hospital-visitation
rights,
medical-decisionmaking rights,and theability to sue
forwrongful deathand tobenefit from workers'compensation. Id. § 15-22-105.DBApar-
tiescannotbe marriedto anotherperson.Id. § 15-22-104. See generally ErezAloni,
Registering 87TulaneL. Rev.573,593-609(2013)(discussing
Relationships, DBAs).
Conclusion
The past decade has witnesseda dramatic change in public attitudes

and legal status for same-sex couples who wish to marry.These events
demonstrate that the legal conception of the familyis no longer limited
to traditionalmarriage. At the same time, the lack of substantial move-
ment towardgrantinglegal benefitsto unmarried cohabitants is evidence
that the state remains committed to a welfaristcriterion for granting
legal status, one that embodies a commitment to family-functioning
norms; as a category,cohabitants are too diverse to satisfythis criterion.
Viewed together,both of these developments suggest that other groups
aspiring to legal recognition as familiesmust overcome substantialuncer-
taintiesif theyare to achieve their ultimate objectives. At the core, over-
-
coming these uncertainties requires establishing trust at every level
among the individual members of the aspiring familygroup, among the
individual group and other similar aspirants,and among the networkof
aspiring families,the larger social community,and the state. Collabora-
tive processes have been shown in other settings to offera means for
creating trustendogenously and thus appear to offera way forwardin
the evolution of other novel families.Moreover, collaboration was a cru-
cial element in the successful movement to achieve marriage rightsfor
LGBT couples, and the absence of meaningfulcollaboration is one factor
in explaining the stasis that characterizes the status of unmarried coha-
bitants. This, then, is the evidence supporting the prediction that the
future progress of other aspiring familygroups toward legal status will
depend in large part on how well theyare able to engage the collabora-
tivemechanisms thatsmooth the path fromcontractto status.

From Contract To Status - Collaboration and The Evolution of Novel Family Relationships PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

From Contract To Status - Collaboration and The Evolution of Novel Family Relationships PDF

Uploaded by

Copyright:

Available Formats

FROM CONTRACT TO STATUS:

COLLABORATION AND THE EVOLUTION OF

Elizabeths. Scott*& RobertE. Scott**

The past decade has witnesseddramaticchangesin public atti-

t The titledrawson (and challenges) HenryMaine'sfamousstatement that"the

tiveprocesseshave beenshownin othersettingsto be effective mecha-

4. Resolving the VerifiabilityProblem Through

Many contemporary scholars and policy advocates challenge the

based on a feministcritique of marriage as a patriarchal institutionthat

(2001) (describing growing diversityoffamily formsin Canadaandarguing forextension

Some observers suggest that even polygamous relationships are becom-

8. Adrienne D. Davis,Regulating Polygamy: Intimacy,DefaultRules,andBargaining

This Article develops an informal model to illustrate those uncer-

state can develop confidence in the capacities of the novel familycate-

16. See RonaldJ.Gilson,CharlesF. Sabel8cRobertE. Scott,Contract and Innova-

sends a confusing signal about the nature of cohabiting unions.22More-

22. Somecohabitants arein marriage-likeunionswhileotherscohabitspecifically to

centurythat have created the possibilitythat other familyformscould be

I. Marriage and the Special Legal Status of Families

As the public has increasinglycome to accept nonmarital families,

function satisfactorilyto fulfillfamilyfunctions qualify to receive the

25. See generallyMarshaGarrison 8cElizabethS. Scott,LegalRegulation ofTwenty-

The factors contributingto these demographic changes have been

LawReview) (discussing ofmodern

thus far have attracted little public or political attention.36Nonetheless,

36. Scholars and law-reform groupshaveshownsomeinterest. See LawComm'nof

Nation'sPoor Childrenand Families(2006) (discussing safety-netprograms); Clare

pie is not in a familyrelationshipwithhis aunt and uncle because the co-

47. The GeneralAccounting Officefamously reportedmorethanone thousand

itance rights.49Further,as advocates for LGBT rightshave argued, mar-

49. See Goodridge, 798 N.E.2dat 955-57(listing rightsgranted bymarriage under

duties inhere in their relationships.55Moreover, these relationships

response to polyamoryand tackled the challenge of designing a regula-

Staceyarguefortheabolition ofmarriage. See supranote1 (citingreformers whohave

A general theme emerges from these critiques: A wide range of

66. A fewscholars havequestioned thelaw'sdeferential treatment offamilies. Mary

over,courts and legislatureshave often invoked marriage as the template

notseethepossibility ofa strong financialfooting aremorelikely todecidetohavea child

ment,and other measures of well-being.73 Although manyfactorscontrib-

73. The recentNationalSurvey of Family Growth foundthatalmosthalfof those

legal structure,marriage is embedded in informalsocial norms that pre-

theColumbia LawReview). On theirview,thiscommitment facilitatesa long-term invest-

II. A Collaborative Model of the Evolution of Novel Family Forms

This Part seeks to explain the legal inertiaand to specifya process by

80. Courtsassessing whether somenonmarital couplesdeserverecognition as "fami-

which novel familyformscan achieve legal statusas families.The analysis

82. ThisArticle does notchallengethatmarital mayhavehistorically

family will be unsure whether their affiliation will be durable and

85. The publicreactionto polyamorous groupsis verylikelyto be hostile.See

dence in their respectiveabilities before theycan make credible commit-

88. Theevidencethat,forwomen, almosthalfoffirst cohabitations

2. Social Isolation: The Absenceof AssociationalBonds and Public Ac-

91. Aswediscussbelow,thecreation ofa networkofaspiring familiesmaybe a key

dependent members, or that they are engaging in immoral behavior.94

94. The testimony in thecongressional hearings fortheDefenseofMarriage Actin

polygamous familiesthat is separated fromthe larger societylargelylacks

riagebetween same-sex partnerswouldhaveseemedfanciful to mostpeople.See infra

not readilyobservable to thirdparties. Moreover,intangible qualities that

102. RonaldJ.Gilson,CharlesF.Sabel8cRobertE. Scott,Contracting

and confidence needed to overcome the unique uncertaintycaused by

lem of relational uncertainty. Because of the increasing pace of

105. See FrancineLafontaine& MargaretSlade, VerticalIntegration and Firm

come of the collaboration, which is entirelyunspecified. That means any