Let us look more closely at legal practices that regulate intersections of intimacy and economic transactions. Legal practice displays a degree of internal coherence and autonomy, but it does not evolve and exist in an entirely separate world. As a first approximation, it helps to distinguish three interacting social phenomena: relational packages, social categories, and legal categories. Relational packages consist of real-life combinations among (a) named interpersonal ties, (b) interpersonal transactions, and (c) media. Thus, persons X and Y call each other “sweetheart,” engage in transfers of information, advice, gifts, financial aid, and occasional sex, using the telephone, Internet, and money as their media. Social categories classify widely recognized relationships within a certain population, again using names, transactions, and media. Here the relationship between X and Y might fit into the social category of friends or the category of lovers, each with its distinctive transactions and media. In fact, social categories distinguish relationships more sharply than real-life practices do. Legal categories parallel social categories in matching widely recognized relations, transactions, and media and making them subject to legal action—enforcement, compensation, and penalties. Thus, conceivably X and Y could appear before the law as partners to a contract; as concubine-paramour, prostitute-client, benefactor — beneficiary; or even as members of a common-law marriage. Legal categories always differ in some regards from social categories, for
example, in accepting or rejecting distinctions among prostitution, concubinage, common-law marriage, and legally certified marriage.
A double matching process occurs. Within each of these sets— relational packages, social categories, and legal categories—partici — pants match relations, transactions, and media. But the three sets also interact, such as when legal advocates of same-sex marriage propose extending the rights and obligations that the law currently recognizes for heterosexual spouses to same-sex spouses. Notice what happens with social and legal categories. In routine social life, people regularly distinguish among categories of relations that share important properties. For instance, they often take considerable care in differentiating rights and obligations attached to kinfolk, friends, and colleagues, even though the three categories often overlap both in persons and in behavior. Implicitly, people consult a grid of relationships arranged by their similarity or dissimilarity and mark boundaries between adjacent relations. Consider how many ways men and women differentiate among relations involving the fact or possibility of sexual intimacy:
Dating
“Hooking up”
Engagement Use of escort services Frequentation of strip clubs Telephone sex Cybersex
When a male and a female engage in sex, how do we recognize which of these relations it is? Although their scripts overlap in some regards, each category of relationship names a somewhat different configuration. We mark distinctions with different names and rituals, as well as with special media and transactions. Notice, for instance, that all of these relations include distinctive economic transactions determining who pays, how, when, for what, at what time, how much, how often, for how long. Even within the world of prostitution we find differentiation: prostitutes distinguish their income by type of activity or by customer.
What about legal categories? Courts adopt a similar procedure, but their matrix has some distinctive properties. Consider what happens when personal disputes get into court. Our four couples— Patsy and Miller, Cruz and McAneney, Blackledge and Schweg — mann, and Trimmer and Van Bomel—all had their own definitions of their relations, conflicts, and hardships, their own conceptions of justice or injustice. But when they went to court, their definitions and conceptions had to conform to existing legal criteria. Those criteria are remarkably diverse depending on the particular legal rubric under which courts and lawyers place a dispute. Indeed, in the case of Schwegmann v. Schwegmann, Mary Ann Blackledge, testified that “she was a wife” to Schwegmann, serving as his companion, housekeeper, and cook. Yet, as we saw earlier, the court would not tolerate any such reading of husband-wife obligations. The court registered the relationship as concubine-paramour. Blackledge’s sole victory in court was as a business associate, not as a wife.
Although American courts recognize some of the sexually intimate relations in the list above, they have their own array of legally distinctive categories of relations and transactions. Following are some crucial definitions from Black’s Law Dictionary (1999):
Criminal coversation: A tort action for adultery, brought by a husband against a third party who engaged in sexual intercourse with his wife.
Alienation of affections: A tort claim for willful or malicious interference with a marriage by a third party without justification or excuse.
Consortium: The benefits that one person, especially a spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, and (between spouses) sexual relations.
Breach of promise: The violation of one’s word or undertaking, especially a promise to marry.
Seduction: The offense that occurs when a man entices a woman of previously chaste character to have unlawful intercourse with him by means of persuasion, solicitation, promises, or bribes, or other means not involving force.
Marriage: The legal union of a man and woman as husband and wife.
Concubinage: The relationship of a man and woman who cohabit without the benefit of marriage.
Palimony: A court-ordered allowance paid by one member to the other of a couple, that though unmarried, formerly cohabited.
Marital rape: A husband’s sexual intercourse with his wife by force or without her consent.
Prenuptial agreement: An agreement made before marriage usually to resolve issues of support and property division if the marriage ends in divorce or by the death of a spouse.
Meretricious (of a romantic relationship): Involving either unlawful sexual connection or lack of capacity on the part of one party (a meretricious marriage).
Each of these terms brings its own set of further understandings and legal practices. Take “meretricious,” a hostile worlds concept par excellence. Lawyers working in the American legal system spend a great deal of time avoiding any arrangement that can be construed as legally binding compensation for sexual services. They therefore make distinctions that separate direct reward for sexual services from legitimate contracts. As Schwegmann v. Schwegmann illusrates, “severability” rules in cohabitation disputes distinguish meretricious or illicit sexual aspects of an unmarried couple’s long-term relationship from their legitimate contractual arrangements, such as contracts for domestic services or business partnerships. Most famously, the controversial 1976 Marvin v. Marvin decision stated that “express agreements will be enforced unless they rest on an unlawful meretricious consideration” (557 P.2d 106, 122 (Cal. 1976)). The court distinguished sexual services from domestic labor and the sacrifice of a career. That distinction allowed Michelle Marvin compensation for a relinquished career.
Here, too, courts debate which relationships qualify for economic compensation, when, why, and how much. Legal categories do not recognize all social categories, and they often make distinctions that do not appear in everyday life. The authors of a well-known casebook in family law make this clear:
The facts of a case, as they present themselves to the practicing lawyers, tend to be diffuse and complex. For example, in a particular case whether there was a marriage or not may be obscure. A judge is expected to come to a clear result, perhaps by attaching a fictitious intent to the parties or applying a presumption. It may be difficult, however, for the lawyer to say whether a set of facts constitutes an engagement, nonmarital cohabitation, marriage, business partnership, cotenancy, employment, or something else. Traditional legal theory provides little guidance to the practicing lawyers in determining which characterization to adopt because it is too often limited to artificially tidy classifications. Moreover, legal theory tends to focus upon pairs of conceptual opposites—such as marriage or nomarriage—to the exclusion of other possibilities. The skilled lawyer selects from an open-ended checklist of multiple choices those that are strategically most advantageous to the client.
What may appear later in court as fact is only a reflection of reality as seen and presented by the lawyer for judicial decision. (Weyrauch, Katz, and Olsen 1994: v)
We begin to see that lawyers and courts are bringing three elements together, struggling over them, and in the process changing them. The first is the matrix of recognized relations. Within that matrix, distinctions and distances change; for example, legalization of same-sex marriage shifts the boundary of marriage and reduces the legal distance between homosexual and heterosexual relationships. The second element is a body of decided cases that serve as analogies and precedents for the case at hand. As this book proceeds, we will often see lawyers and judges using cases creatively, not matching the case at hand mechanically with already tried cases, but arguing that previous cases embodied a principle that no one had so far recognized, pressing for extension of a principle to an adjacent area of legal application, or claiming that precedents contradicted each other, hence that the court had an opportunity and obligation to make new law.
A third element binds together available precedents and the matrix of recognized relations. A body of legal doctrines incorporates categories of cases and rules for their interpretation. At the broadest level stand conventional distinctions among doctrines that distinguish tax law, the law of contracts, criminal law, and other specialized legal fields. Within each of these fields, further doctrines hold sway. Later in this chapter, for example, we will encounter the time-honored doctrines of coverture and consortium, which long affected the recognized legal rights of spouses in the United States. As we follow the intimacy of coupling, caring, and households into the legal arena, furthermore, we will eventually meet such exotic doctrines as undue influence, conditional gifts, and innocent spouse.
Take the legal doctrine of consideration. American law does not generally recognize a contract as binding unless the parties have exchanged something of value, a consideration, however nominal or unequal the exchange. What about the mutual commitments that intimate partners make without ever arriving at a formal agreement including conditions and terms of exchange? Especially after death, divorce, or separation, courts frequently find themselves forced to determine whether such commitments (for example, to provide lifetime care) are legally enforceable. As they do so, they regularly scrutinize the commitment’s origins for evidence of considerations exchanged.
Through the intersection oflegal struggles, legislation, and broad social change, all three elements—doctrines, exemplary cases, and matrices of recognized relations—change continuously, but mostly in small, inconspicuous increments. Typically, legal categories tend to lag behind the current everyday categories, as in the cases of same-sex marriages or cohabitation. On the whole, lawyers and courts respond cautiously to changes that have already gone quite far in the behavior of ordinary people. They negotiate matches, however uneasy, between everyday relationships and the existing legal matrix before they argue for changes in the matrix itself. Legal practice therefore only recognizes certain combinations of relations, transactions, and media as appropriate for its jurisdiction. For example, American law generally forbids litigation of spousal obligations such as food preparation, child care, and sexual intercourse. It also generally refuses to recognize distinctions household members have themselves established among various sources of income, such as windfall earnings committed to vacations and regular wages committed to food purchases.
Let us consider more precisely how legal practice treats interpersonal relations. Lawyers and courts match existing relational packages with established legal categories. From that matching they derive appropriate elements of intimacy, determining whether attention, information, advice, trust, exclusiveness, particularity, personal care, sexual relations, housework, feeding, health care, conversation, and/or companionship properly belong to that relationship. From that reasoning they then deduce rights and obligations binding the parties, including third parties. They also assign values to these various sorts of transactions, for example, deciding how much (if anything) advice given was worth. Finally, they adjudicate rewards, penalties, legal standings, and the propriety of transactions (such as bequests) on the basis of the legal category into which the relational package falls.
Closely observed, courts apply a simple questionnaire to connections between the parties involved. They ask the following:
1. What kind of relationship is this?
2. What rights, obligations, and interactions belong to that class of relationships? (Proper interactions are those that no third party has the right or obligation to interfere with; improper, those that at least one third party has a legal, enforceable right or obligation to challenge.)
3. Did one of the transactions violate those rights and obligations?
4. If so, what legal remedies apply?
To repeat, in applying these standards, courts and legal specialists implicitly invoke legal categories: a map of relationships, including boundaries, proximities, and appropriate bundles of rights, obligations, and interactions. They also typically adopt and rely on hostile worlds justifications of their boundary making. In Schwegmann v. Schwegmann, the court declared it not only legally incorrect to frame their relationship as marriage but morally perilous: “To equate the non-marital relationship of concubinage to a marital relationship is to do violence to the very structure of our civilized society.”
In order to avoid just this kind of condemnation, lawyers advise their clients how to present their cohabiting relations. The American Bar Association provides specific practical advice to potential litigants. Unmarried, cohabiting couples, instructs its Guide to Family Law, may enter legally binding agreements about “how much each will pay for rent, mortgage, utilities, groceries, auto expenses.” The authors warn, however, against “pillow-talk” agreements—the “don’t worry, I love you. I’ll take care of you. Everything will be okay” statements often made while “the couple may be in bed enjoying a moment of intimacy.” Such agreements, cautions the guide, are rarely enforceable. Even more emphatically the guide discourages agreements that closely entwine sexual relations with other obligations, explaining that “if a court thinks an agreement amounts to providing financial support in exchange for sexual relations, the court will not enforce it. Such an agreement will be viewed as uncomfortably close to a contract for prostitution” (American Bar Association 1996: 6-8).
Lawyers, judges, and juries do relational work of a distinctive kind: they work hard to establish proper matching within legal categories. Consider the provision of health care. People provide treatment for each other’s illness in a wide variety of relationships—par — ent-child, wife-husband, friends, physician-patient, nurse-patient, teacher-pupil, priest-parishioner, pharmacist-customer, servant — employer, nursing home attendant-inmate, and more. Courts repeatedly find themselves adjudicating the appropriateness and value of the treatment by placing the relationship within a legal category. For which categories of relations is this treatment permissible?
What responsibility do the parties bear for the consequences? What rewards, punishments, and constraints should the law therefore apply? Lawyers, judges, juries, and parties to disputes thus engage in the delicate work of translating from the language of everyday practices and social relations into the specialized idioms of the law (Felstiner, Abel, and Sarat 1980-81; Gal 1989; Rotman 1995).
In typical disputes, someone uses the available array of legal categories to allege a mismatch. A party, as we have seen, may propose straightforward matching of behavior to a location within the array. Another party may argue for excluding the relationship from legal jurisdiction, as in a wide variety of disputes between spouses. Doctrines and cases available as precedents come into play at precisely this point. Parties may engage in disputes concerning boundaries or contents of relations; in the case of a gay couple, for example, courts may have to decide whether they qualify as spouses for the purposes of taxation, whether they have the right to adopt children, or whether they acquire rights in each other’s property. In such cases, especially where the proper classification of the relationship is under dispute, argument often proceeds by analogy and proximity to other legally established relationships. This is where the legal categories listed above come into play. Is this relation meretricious? Does it qualify as concubinage? Lawyers and courts often engineer change in precisely this way, by arguing new analogies and applications for existing categories. They fashion novel combinations of cases, doctrines, and relational categories.