RHODES V MacDONALD - 8 - MOTION To Dismiss Plaintiff's Complaint For Damages, Declaratory Judgment, and Injunctive Relief and Application For TRO - Gov - Uscourts.gamd.77605.8.0
Chapter 1 offered a minimal definition of ‘the family’ as
a multigenerational group, normally stably co-habiting, whose adults take primary custodial responsibility for the dependent children. On such a definition there will be numerous and varied familial forms – ones in which there is one adult, where there is a pair of adults, or perhaps several; ones whose adults are in a same-sex or heterosexual relationship, who are married or merely co-habiting, who may even be sharing their parental tasks across two residences; and ones whose children are and are not biologically related to their adult custodians. The definition provided allows us to dis- tinguish between questions of whether or not some social arrangement counts as a family (as opposed to a household, for instance) and questions as to whether a familial form is ideal, less than ideal, or undesirable. There are, in short, both descriptive and normative questions to be asked about the family which need to be kept separate and not confused. The distinction is important. A fair number of the possi- ble familial forms encompassed by the suggested definition will be viewed by some as not ideal. Defenders of the tradi- tional family, most obviously, will view with disfavour any- thing other than a family whose married adults rear their biological offspring. Such criticism can nevertheless best be couched in terms of what kind of family is preferred, rather than by simply legislating through definitional fiat that the disliked form is not even a family. Chapter 1 cautioned
precisely against the use of persuasive definitions to win
arguments in favour of some kinds of family by excluding other kinds from the relevant conceptual category. Nevertheless the definition offered here does characterise the family in functional terms of what it does rather than what it is. Interestingly, at least one introduction to the soci- ology of the family which notes the difficulties considered in Chapter 1 of supplying a unitary definition of the family opts for a unifying functional account:
Broadly speaking, the family is a group of people related
by blood or by law, living together or associating with one another to a common purpose, that purpose being the provision of food, shelter, and the rearing of children. (Wilson, 1991, p. 2; emphasis added)
A functional definition of ‘the family’ licenses an appraisal
of its different forms according to how well any particular family or type of family fulfils its defining role, namely that of the custodial care of dependent children. The better a kind of family looks after its children, the better it is as a kind of family or as an instance of a family. The functional definition also allows for an appraisal of the family as such, and thus provides the basis of an answer to the question of whether there is something that could do a better job than the family of doing what it is that the family is essentially designed to do. We can thus separate, and address in turn, two issues: whether the family is ideal, and whether there is an ideal family.
Is the family ideal?
Maybe there are better ways of raising children than
by doing so within families. Amy Gutman’s distinction between a ‘family state’ and a ‘state of families’ (Gutman, 1987, Chapter 1) cited in the Introduction helps. Whereas a family state takes exclusive responsibility for the rearing of the children within its jurisdiction, a state of families
RHODES V MacDONALD - 8 - MOTION To Dismiss Plaintiff's Complaint For Damages, Declaratory Judgment, and Injunctive Relief and Application For TRO - Gov - Uscourts.gamd.77605.8.0