Emory University School of Law
This essay explores the relationship between the male problematic and the problems of family law. The problem of fatherhood, or what religion scholar and marriage movement leader Don Browning calls the male problematic, is a central concern of that movement. The premise is that marriage addresses a core societal challenge - binding men to the mothers of the children they foster and securing men's paternal investment in those children. The essay responds to Browning's review (in 56 Emory Law Journal 1383 (2007)) of my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006), in which he compares my approach to family law and policy with the critical familism approach to the American family debate developed by Browning and his colleagues in the multiyear Religion, Culture, and Family Project at the University of Chicago. Browning's work has contributed to the underpinnings of the marriage movement, which aims to restore a marriage culture and promote the institution of marriage.
First, Browning contends that The Place of Families misunderstands the idea of the male problematic as an appeal to the domesticating and gatekeeping role of women, rather than to the channelling power of marriage as an institution. However, although Browning and many others in the marriage movement focus on the role of the institution of marriage as encouraging paternal investment, it is no caricature to say that at least some in the marriage movement also invoke the role of women as sexual gatekeepers to lead men to marriage and, thus, to responsible paternal investment. Second, Browning argues that The Place of Families gives inadequate attention to the premoral or nonmoral good of fatherhood and is vulnerable to a sort of indiscriminate acceptance of any and all family forms in the name of family diversity or equality among families. Because Professor Browning views the supposed limits of my approach as illustrative of a broader failing in contemporary family law and family law theory, I identify in The Place of Families versions both of a male problematic and of the goods of family life. I use the example of care, since both my approach and critical familism stress the importance of parental care. Third, I respond to his contention that my commitment to governmental promotion of equality within and among families leads to an indiscriminate acceptance of family diversity and to an approach that is too wary of relying on families and other institutions of civil society (particularly religious institutions) to generate virtues and too ready to employ government for the aggressive promotion - in families - of norms like sex equality.
The essay concludes with some preliminary thoughts on Browning's broader question about whether and how theological accounts of contemporary families and the challenges they face should inform family law and policy.
Linda C. McClain,
The 'Male Problematic' and the Problems of Family Law: A Response to Don Browning's 'Critical Familism',
Emory Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/460