For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).
Kristin Collins
Serena
Mayeri’s excellent new book Marital Privilege charts the transformation
of marriage as a central fixture in American law and social policy from the
1960s to 2003. Starting in the 1960s, various groups and individuals challenged
marriage’s hold on Americans’ options for family formation, their sex lives, and
their access to state created entitlements and benefits. These challenges were not
part of an organized political or legal movement, as one often finds in stories
of legal transformation, but they were numerous and sustained. Liberal
feminists challenged the sex-asymmetrical rights and duties that marriage
entailed. Black feminists were focused on securing greater autonomy in deciding
whether and when to have children – in or out of marriage – and sought supportive
communities rather than government surveillance. Mothers and fathers argued that
the status designation of illegitimacy harmed children, in part by creating a
legal presumption that their fathers had no interest in their wellbeing.
Individuals who sought to form non-traditional families challenged family-based
zoning laws and housing regulations that were premised on the marital family
norm. Lesbian and gay couples struggled for legal recognition and rights in
just about every domain of life. Perhaps most famously, individuals who sought
to marry across the color line challenged restrictions on interracial marriage.
With
these challenges to the regulation of marriage and its legal primacy in view, Mayeri
identifies a puzzle: For a good 40 years, as marriage’s place in American law
and social policy was contested from multiple directions, and as marriage rates
declined, marriage nevertheless remained (and remains) a privileged status in
American law. How to explain this outcome? Mayeri argues that even as challenges
to marriage’s primacy succeeded in eliminating its more pronounced
discriminatory features, those challenges also helped to sustain the privileged
legal status of marriage. Moreover, she concludes, as “marriage declined among
less affluent Americans, marital status law intensified racial and economic
inequality.”
Mayeri offers abundant evidence to support her thesis, but she is also quick to acknowledge that the historical sources she has amassed tell a complicated story. Not only were the sundry challenges to marital status law uncoordinated, many of the key players in her book disagreed about the role that marriage should play in social policy and how its contours should be determined and policed. Here, I will add to the complexity of this story by focusing on a specific field of regulation: immigration.
In Marital Privilege, immigration
emerges in chapter 7 with Mayeri’s analysis of the 1977 Supreme Court case Fiallo
v. Bell. In Fiallo three fathers and their nonmarital children contended
that American immigration law should recognize their relationships for the
purpose of allocating family-based immigrant visas and exemptions from various requirements.
The families involved in Fiallo were what immigration lawyers call mixed
status families: Families where one member has a right to live in the United
States (as a citizen or lawful permanent resident), but another member does
not. Under American immigration laws of the 1970s, either parent could petition
for an immigrant visa for their marital children and mothers could do the same
for their nonmarital children. However, those laws did not recognize the relationship
between a father and his nonmarital child for immigration purposes. The Fiallo
petitioners contended that this exclusion violated the constitutional
prohibitions on sex and illegitimacy-based discrimination, but they lost.
Mayeri
rightly describes the fathers in Fiallo as poor, working-class men of
color who sought the benefit of family preferences in American immigration law
so that they could live with and care for their minor children in the United
States. They were denied that right by the immigration statutes and a Supreme
Court opinion that offered a narrow vision of constitutional equality. As
Mayeri observes, their saga is a prime example of how marital status laws often
operated in a racially salient manner. In the mid-1970s, recently expanded family-based
immigration preferences, along with other changes in immigration law, had brought
about higher levels of immigration from Latin America and Asia. The district
court’s opinion in Fiallo seemed to reflect contemporary concerns about
unchecked immigration when it noted that granting the fathers’ equal protection
claims might result in an endless chain of immigration: An “unwed mother living
here” could bring over “all of her illegitimate children,” who in turn could
bring over “his or her biological father,” who in turn could bring over “all
of the children he has ever fathered,” and “each of those
children could bring over his or her mother, who could then bring over all of her
illegitimate children, etc., etc., etc.”[1] When
the Supreme Court weighed in on the matter, the majority opinion did not express
concern about what came to be called “chain migration.” Rather, the Court
concluded that “the power to expel or exclude aliens” was a “fundamental
sovereign attribute exercised by the Government’s political departments largely
immune from judicial control”[2]
– even when that power separated a father from his child.
The
impact of the Court’s ruling was tragic for the Fiallo plaintiffs and
other families in similar predicaments. It would be a mistake, however, to
conclude that their experience represents marriage’s only role in the
regulation of immigration in the second half of the twentieth century. For many
immigrants, family status provided a pathway to entry and inclusion in the
American polity. Following major immigration reforms in the mid-1960s, this was
especially true for some immigrants of color who had been all but excluded under
earlier immigration laws, and for others who lost previously available pathways.
Seen from this perspective, and notwithstanding Fiallo, in the late
twentieth century marital status laws were an important part of the
family-based immigration preferences that were helping to change the
demographics of American immigration.
This
was not inevitable. After World War II, it became increasingly apparent to many
Americans that existing immigration restrictions based on race and ethnicity were
inconsistent with emerging understandings of equality. But reforming the
immigration laws to reflect those new understandings was an agonizingly slow
process and there was special resistance to race-neutral allocation of family-based
immigrant visas. To be sure, in the 1940s Congress provided the Asian war
brides of American soldiers time-limited exemptions from racial bars on
immigration, but that was a special case. There was no consensus that spousal
visas should be allocated on a race-neutral basis as a general matter. In the
late 1940s and early 1950s, Congress was poised to repeal the remaining prohibition
on naturalization by people of Asian descent as part of an omnibus immigration
bill. However, resistance to equal treatment of Asian families was strong
enough that someone involved in the drafting introduced a technical provision
that would have practically eliminated immigrant visas for Asian wives of
American citizens. It took a significant campaign by Chinese American civil
rights organizations to remove that provision from the bill. When the bill was finally
enacted as the 1952 Immigration and Nationality Act, it was the first time that
American immigration law provided immigrant visas for the spouses of American
citizens on a race-neutral basis.[3]
Thirteen
years later, the 1965 Immigration and Nationality Act brought about an even
more radical transformation of American immigration law. The 1965 Act repealed
the remaining ethnically and racially restrictive immigration laws. It also elevated
family-based preferences as the predominant mode of allocating immigrant visas.
The spouses and children of American citizens – that is, the citizen’s marital
family – were at the very top of the hierarchy of family-based preferences. The
marital families of lawful permanent residents (i.e., green card holders) were
just one step down in the preference hierarchy.
It is
difficult to overstate the impact of the 1965 Act and related legislation from
the same period on the racial and ethnic patterns of immigration in the late
twentieth century. In 1965, white immigrants accounted for 80% of the immigrant
population in the United States and Hispanic and Asian immigrants together accounted
for 19% of the immigrant population. By 1985, those percentages had shifted to
38% white and 59% Hispanic and Asian.[4] The
legal, economic, and social factors that led to these changes are complicated.
But it is fair to say that marital status law was a key part of the immigration
system that helped diversify the American polity along racial and ethnic lines
in the period under examination in Marital Privilege.
To be
sure, the central place of marriage in the family-based preference system meant
that marital status was used to favor some families and some immigrants over others
in the allocation of immigrant visas. In addition to the systematic exclusion
of nonmarital children who sought immigration preferences based on the
father-child relationship, gay and lesbian couples’ exclusion from marriage
also excluded them from family-based immigration preferences.[5] Some
scholars have proposed reforms that would maintain family preferences in
American immigration law but would de-emphasize marriage.[6] As
a practical matter, however, efforts to disestablish marriage’s privileged status
in immigration law could very easily undermine the legal and social foundation of
family-based immigration preferences.
The final paragraphs of Mayeri’s masterful book recognize the fragility of marriage’s role in immigration law, at least implicitly, with a discussion of the Supreme Court’s 2024 opinion, Department of State v. Muñoz. Justice Amy Coney Barrett’s majority opinion held that the State Department had no obligation to explain why it denied a United States citizen’s application for a visa for her El Salvadoran husband. Citizens do not have a constitutional right to live in the United States with their spouses, Barrett explained, and therefore no right to procedural due process when the government denies a spousal visa application. Muñoz plainly undermines marriage’s primacy in American immigration. But lest one conclude that Muñoz was purely the byproduct of conservative legal theories about immigration law, it is important to note that Justice Barrett’s opinion tracks the arguments developed by the Biden Administration lawyers who defended the State Department’s position on spousal visas. If “marital primacy claimed adherents across the political spectrum,” as Mayeri argues, in the context of immigration support for marriage’s demotion has found support from a similarly diverse set of actors.
Kristin Collins is James E. and Sarah A. Deagan Professor of Law at the University of Michigan Law School. You can reach her by e-mail at kaclaw@umich.edu.
[1] Fiallo
v. Levi, 406 F.Supp. 162, 167, n. 15 (E.D.N.Y. 1975) (emphasis in
original).
[2] Fiallo
v. Bell, 430 U.S. 787, 792 (1977) (internal quotations omitted)
[3] On this episode see Jane Hong, “‘A
Cross-Fire Between Minorities,’” Pacific Historical Review (2018):
667-701.
[4] Pew Center Research, “Immigration’s
Impact on Past and Future U.S. Population Change,” September 28, 2015.
[5] This was unlikely to have been the
primary concern for gay and lesbian individuals seeking immigrant visas given
that American immigration law simply excluded them until 1990.
[6] See, e.g., Sarah Song, “The
Claims of Family,” in Immigration and Democracy (2018).