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.