From Status to Function

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Douglas NeJaime

In Marital Privilege, Serena Mayeri masterfully shows how challenges to the legal centrality of marriage—and to a specifically heterosexual, gender-differentiated view of marriage—only partially succeeded in altering the content of marriage and its relevance to legal rights and obligations. Ultimately, courts credited claims, particularly on behalf of women and same-sex couples, that made marriage itself a more inclusive and egalitarian institution. But courts rejected claims, particularly on behalf of single parents and poor women of color, that would have reduced marriage’s role in channeling benefits to families. As Mayeri shows, challenges to the understanding of marriage that pervaded law and policy in the mid-twentieth century changed the content of marriage in important ways but, in the end, left marriage’s primacy intact.

For all the distinctions between the regulation of marital and nonmarital life that Mayeri meticulously analyzes, there is a striking continuity that Marital Privilege surfaces. Both inside and outside marriage, to varying degrees, the law shifted away from formal, categorical, status-based regulation toward functional regulation. As advocates for this functional approach argued, the law should treat spouses, partners, and parents “based on what they did rather than who they were.” (p. 81) Across the book, Mayeri unearths a rich array of functional approaches that arose to meet the challenges that confronted marriage and its privilege status. Although scholars have identified and analyzed functional approaches in various settings, Mayeri’s work to synthesize these approaches across domains is novel and important. And it has significant implications for debates raging today over the wisdom of adopting functional standards to address nonmarital couples and parent-child relationships.

The Wide-Ranging Functional Turn in Family Law and Beyond

First, Mayeri uncovers how functional approaches steadily replaced status-based approaches within marriage. Sex-based differentiation between husbands and wives and fathers and mothers gave way to “sex-neutral functional standards.” (p. 77) Rules governing property and support during marriage could no longer draw on overtly sex-based classifications. And, in allocating benefits, the government “could no longer assume that husbands and wives followed the male breadwinner/female homemaker model but must instead treat them as primary and secondary wage-earners irrespective of sex.” (p. 94) In other words, the law tracked how married couples functioned in fact, leading rights and responsibilities to track actual dependency relationships.

Functional approaches replaced status-based rules not only in the treatment of spousal relations but also with respect to parent-child bonds formed within marriage. The formally gender-neutral “best interests of the child” standard replaced a maternal presumption that gave mothers custody of children of “tender years” upon divorce. Custody law repudiated not only sex-based rules but also sexual orientation-based exclusions. When a different-sex couple divorced and one of the parents came out as gay or lesbian, a court could not deprive that parent of custody based simply on the fact of “homosexuality.” Instead, a “nexus” standard, which Mayeri describes as “based on function” (p. 9), replaced a per se rule. Now, a gay parent should only lose custody if the parent’s sexual orientation had a detrimental effect on the child.

Second, Mayeri shows how functional approaches challenged the formal distinctions between marital and nonmarital families. In the space outside marriage, advocates from intersecting movements sought legal rights and responsibilities for unmarried couples and nonmarital parents. Targeting “the formation and recognition of nonmarital and chosen family relationships; their dissolution; and the parentage and custody of children who lived in ‘nontraditional’ households, . . . advocates promoted functional definitions and standards in the final decades of the twentieth century, with varying degrees of success.” (p. 247) For example, with respect to unmarried cohabiting partners, advocates contested the default assumption that such partners were “legal strangers with no rights or responsibilities” and instead urged functional standards that “examined how relationships worked in practice.” (p. 247) As Mayeri explains, “[e]xtending legal recognition to functional relationships could confer previously unavailable rights and benefits . . . on people who did not conform to the marital ideal.” (p. 247) In this sense, functional standards to some extent challenged and eroded marital supremacy.

Advocates’ efforts, however, were not uniformly successful. With respect to adult relationships, the push to adopt “an ascriptive approach that used functional criteria to determine whether to recognize a nonmarital relationship for certain purposes, such as the distribution of property,” fell short. (p. 105) When the American Law Institute’s Principles of the Law of Family Dissolution recommended such an approach in 2001, no state enacted it. (p. 264) In contrast, with respect to parental recognition, Mayeri documents a long-running and hugely consequential functional turn. As Courtney Joslin and I have shown, about two-thirds of U.S. jurisdictions now have a functional parent doctrine that assigns rights to a person based on forming a parent-child relationship and parenting the child, even in the absence of a biological or adoptive tie to the child or a marital bond with the other parent.

Third, Mayeri not only integrates functional approaches in the marital and nonmarital contexts; she also brings functional approaches in other spheres, such as work, into the same conversation as functional approaches in the family. In examining public employment, Mayeri describes the nexus standard as a “functional approach” that represented a shift away from a per se rule that viewed homosexuality as incompatible with government employment. (p. 175) By treating the “nexus” standard in employment within the same category as functional approaches in family law, Mayeri presents functional approaches as trans-substantive and wide-ranging.

The Two Faces of Functional Approaches

Across these various settings, Mayeri shows how functional approaches were animated by and vindicated emergent equality concerns, including with respect to race, gender, sexual orientation, and marital status. Consider Mayeri’s treatment of marriage law, in which “formal and categorical exclusions” based on stark differentiation between “the roles of husbands and wives . . . gave way to functional definitions and standards.” (p. 318) Those seeking greater equality for women drove this shift. Pauli Murray, for example, argued that “laws and policies should target ‘functional attributes,’ such as homemaking, parenthood, or other care-giving responsibilities, rather than sex per se.” (p. 80) Eventually, as Mayeri recounts, Ruth Bader Ginsburg’s litigation strategy “realized Murray’s ambition to replace sex as a category of legal classification with an individual’s functional role.” (p. 81) As the Supreme Court elaborated a body of sex equality law over the latter part of the twentieth century, states were required to decide questions of property, support, and custody upon divorce based not on sex-based presumptions but instead on “sex-neutral functional criteria.” (p. 94)

In Mayeri’s telling, functional approaches did not merely promote equality within marriage (and at divorce). Functional approaches also “improved conditions for those at society’s margins by relaxing rigid per se rules of exclusion” that harmed “groups who lived outside the marital nuclear family.” (p. 247) In this sense, functional approaches challenged the marital-status distinctions—and the inequalities based on race, class, gender, and sexual orientation that such distinctions entailed—at the heart of Mayeri’s book. Functional standards could compensate women for labor performed during nonmarital relationships and could protect parent-child bonds formed in nonmarital same-sex relationships. Similarly, the shift to a nexus standard, in both public employment and child custody, improved the ability of unmarried women and gays and lesbians to keep their jobs and their children.

Mayeri’s story is complicated, though. Even as functional standards advanced critical equality aims, they also preserved and carried forward stubborn forms of inequality. Both inside and outside of family law, Mayeri shows how functional standards can “smuggle[] biases back in under the guise of neutrality.” (p. 9) For example, under the nexus test in the child custody context, state actors could simply replace straightforward moral objections to gay and lesbian parents with arguments about children’s welfare. Similarly, in public employment, the functional nexus standard, which inquired into the impact of sexual orientation or conduct on the employee’s ability to perform the job, “left the door open to discretionary decision-making by employers and courts that limited the scope and contours of sexual freedom and equality.” (p. 152) As Mayeri documents, negative “[c]ommunity reactions to gay, unmarried pregnant, and cohabiting persons frequently became the measure of ability to perform jobs that involved contact with children.” (pp. 179-80) For example, if the community disapproved of a gay teacher, a nexus existed between the teacher’s sexual orientation and his ability to do the job, such that the school district would be justified in terminating the person’s employment. Ultimately, the functional approach represents a version of what Reva Siegel famously labeled “preservation through transformation.”

Several factors limited the extent to which equality could be realized by functional approaches. As an initial matter, the rise of functional criteria within marriage made marriage more egalitarian and appealing, thereby “blunt[ing] the severest critiques of marital status law without disturbing the fundamental fact of marriage’s legal primacy.” (p. 77) Even the gender-neutral functional criteria governing spousal relations could harm women whose marriages followed conventional gender-based scripts. Consider, for example, the “best interests of the child” standard, which replaced the gender-based maternal presumption. Mothers were more likely to be primary caregivers and placed more importance on custody post-divorce. Under the former sex-based regime, mothers enjoyed, in Robert Mnookin and Lewis Kornhauser’s term, a “bargaining endowment” to custody. Yet, under the gender-neutral “best interests” standard, mothers no longer held such an endowment and would bargain away financial rights to which they otherwise were entitled as a way to secure custody.

Functional approaches outside of marriage also proved “double-edged.” (p. 9) Even as they brought rights and recognition to a wider “range of household arrangements,” they exerted a regulatory and exclusionary force. As Mayeri argues, “functional categories often required relationships that resembled marital or nuclear family ties to qualify as legitimate.” (p. 9) By requiring the performance of certain conventional family norms, functional definitions in practice excluded arrangements that would benefit from rights and recognition. Still, my own work with Courtney Joslin, which Mayeri discusses (p. 333), cautions against overestimating the assimilationist and exclusionary implications of functional standards. As our empirical analysis of nearly 700 functional parent decisions demonstrated, functional parent doctrines often serve the most vulnerable families—those facing various challenges created or exacerbated by poverty. Further, a plurality of the cases involved relatives serving as functional parents, defying the assumption that the doctrines would primarily serve caregiving arrangements that mirrored the traditional marital family.

Mayeri uncovers a partial logic to the functional approach’s double-edged nature. The state sought to maintain marriage’s role as a private welfare system. Marriage law could shift from gender-based rules to functional criteria while continuing to privatize dependency. Outside marriage, functional standards seemed most appealing when they could extend the family’s private welfare function to nonmarital arrangements. As Mayeri tells it, “the law embraced functional approaches selectively, especially when doing so would ensure that relatives, not the government, would support needy family members. Marital status mattered less, for instance, when legal recognition for a functional parent secured a private source of child support.” (p. 9) In contrast, functional standards seemed most threatening when they challenged marriage’s role in distributing government resources. In other words, because marriage was entangled with the maintenance of a stingy social welfare state, courts and legislatures were most open to reducing marriage’s salience—and adopting functional criteria for nonmarital families—when doing so would reduce the government’s obligation to support families. And they were most resistant to functional standards when such an approach would channel scarce government resources to families that failed to conform to the marital model.

Function’s Authority

Mayeri’s comprehensive treatment of the rise—and limits—of functional criteria is itself a major contribution. Under the umbrella of “function,” Mayeri brings together shifting approaches in family law, both to marriage and nonmarriage. In both settings, we see judges and lawmakers invested less in formal status-based distinctions and concerned more with meeting families where they are, based on the dependency relationships that exist within individual families. In this way, Mayeri unites the treatment of marital and nonmarital families, including both adult-adult and parent-child relationships, under the rubric of function.

But Mayeri is doing more than synthesis. In the way Marital Privilege unfolds, one can appreciate how functional approaches ascendent inside marriage supplied important antecedents to—and authority for—later functional claims challenging marriage as the exclusive and proper home for both adult and parental rights and obligations. That is, the push for functional criteria outside marriage follows from the embrace of functional criteria inside marriage.

Mayeri not only links functional recognition for nonmarital families to functional shifts inside marriage law. She also finds precursors within the regulation of nonmarital families themselves. Mayeri suggests that the rise of functional criteria governing nonmarital, nonbiological parents follows from earlier shifts toward functional criteria governing nonmarital parent-child relationships. For example, Mayeri describes mid-to-late-twentieth-century approaches to nonmarital fatherhood in functional terms. In her account, “the nonmarital fathers’ cases joined the larger movement toward functional definitions of family.” (p. 242) In Lehr v. Robertson, for example, the Court extended constitutional protection to unmarried fathers who “grasp[ed] the opportunity” that their biological tie afformed them to develop a parental relationship. Eventually, as I have shown, this functional approach to recognize unmarried biological fathers was mobilized to recognize unmarried nonbiological parents.

As we have seen, Mayeri also joins the rise of functional criteria with respect to nonmarital rights and obligations to the rise of functional criteria in other substantive domains. She situates the nexus test adopted by courts in adjudicating claims of unmarried public employees as part of the shift from status-based exclusions to functional standards. Employees living outside of marriage, including gay and lesbian workers, should be judged by their performance, rather than their marital status or sexual orientation. Just as unmarried and gay and lesbian employees should be measured by the work they performed, so too should unmarried and gay and lesbian partners and parents be extended rights and responsibilities that tracked their roles in the family.

By integrating these various developments, Mayeri provides newfound authority for functional standards in the nonmarital setting. Today, scholars and law reformers fiercely debate whether to take an ascriptive approach to unmarried cohabitants, assigning rights and responsibilities based on dependency relationships formed outside marriage. Today, as Courtney Joslin and I have explained, scholars and law reformers disagree over whether to adopt a functional standard for parentage. By placing these functional approaches along a longer arc, Mayeri makes them appear less distinctive and controversial.

Mayeri assimilates functional approaches with respect to nonmarital rights and recognition to functional approaches that gained prominence with respect to spousal relations, parental rights, and employment that now appear uncontroversial. Scholars and progressive advocates look favorably upon the functional criteria that mobilizations around sex equality brought to marriage and divorce in the second half of the twentieth century. Scholars and progressive advocates also look favorably upon the functional criteria that mobilizations around sexual orientation brought to custody and employment in the late twentieth century. The functional criteria that came to govern the constitutional treatment of unmarried fathers has come to be seen by scholars and progressive advocates as, if anything, falling short, rather than going too far. By seeing continuity between these earlier developments and today’s debates, Mayeri makes the functional turn appear both more far-reaching and less controversial.

In Mayeri’s telling, the functional approaches that today animate intense conflict appear as merely one component of a much broader shift. This is the shift from status to function. It is a shift that pervades family law and exists outside family law. It is a shift that has brought greater equality and justice to nonmarital families. And it is a shift that remains incomplete. 

Douglas NeJaime is the Anne Urowsky Professor of Law at Yale Law School. He can be reached at douglas.nejaime@yale.edu.