Marital Supremacy, Liberalization & Privilege

Guest Blogger

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

William N. Eskridge Jr. 

In Marital Privilege (2025), Serena Mayeri documents many of the ways that the American law of marriage was transformed between 1960 and 2000 (and somewhat beyond). Earlier scholars have demonstrated how the extensive liberalization of family law was accompanied by policies channeling relationships into what policymakers and most citizens have considered socially productive forms, primarily marriage.[1] In the new millennium, demographers have shown that marriage remains popular among well-to-do and professional couples but is declining among lower-income and working-class couples.[2] Critical scholars have argued that the many discriminations against nonmarriage are constitutionally or normatively wrong and have criticized the disparate racial and income effect of what Melissa Murray calls “nonmarriage inequality.”[3] Building upon and adding to this scholarship, Professor Mayeri argues that the “marriage supremacy” regime holding sway in 1960 had by the new millennium collapsed and had given way to a legal regime of “marital privilege” (pp. 6, 112, 318) that, obviously, benefits the “Haves” in our society and, less obviously, often harms the “Have Nots” (pp. 316-18).[4] This new, discriminatory regime has been challenged by many progressive lawyers and their clients, but largely without success in court.

A well-documented and strikingly original contribution to the academic literature is the book’s detailed examination of lawsuits seeking constitutional recognition of legal rights of unmarried couples and their families, and their mixed success at the Supreme Court especially. Professor Mayeri synthesizes the oft-told tales of the leading contraception cases, Griswold (1965) and Eisenstadt (1972); the recently overruled abortion decisions, Roe v. Wade (1973) and Casey (1992); the landmark right to marry cases, Loving (1967) and Red Hail (1978); and Stanley v. Illinois (1972), the leading fathers’ rights case. But Marital Privilege provides a powerfully documented counterpoint to the triumphalist account typically suggested by academic emphasis on those leading cases. Thus, the author shows how the Supreme Court that recognized rights for nonmarital children did little for their unmarried parents (pp. 39-71, 237-42), purged family law of explicit sex discriminations while rejecting feminist efforts to expand equality and privacy rights to nonmarital families (pp. 77-113), and treated the claims and needs of single mothers with either indifference or hostility (pp. 185-211). 

More important, Marital Privilege provides a deeper account of the constitutional challenges by examining lower court cases neglected by prior scholarship. For example, the treatment of Anne Flores’s exposure of the armed forces’ double standard—dismissing female service personnel for pregnancies outside of marriage while tolerating widespread extramarital sex and unplanned children by male personnel—is both educational and deeply disturbing (pp. 144-51). Because official embarrassment mooted the case, the Flores lawsuit never got to the Supreme Court, but Professor Mayeri rescues it from the ACLU’s archives and demonstrates its importance to any history of constitutionalized family law.  Likewise, her book provides personally moving and intellectually stirring accounts of cases adjudicated in state and lower federal courts in response to challenges to state and local rules penalizing parents for having children outside of marriage (ch. 2), to failure to apply housing discrimination laws to protect nonmarital families even when disparate racial and gender impacts were clear (ch. 4), to the exercise of discretion by school districts that harmed such families (ch. 5), to paternity-disclosure laws and exclusions of single parents from the military (ch. 6), and more. The sheer variety of issues presented by the emerging regime—marriage is no longer supreme, but is preferred with a wide range of new policies, most of which have discriminatory effects on less-advantaged families—is breathtaking.

The foregoing virtue has a flip side: In contrast to the in-depth examination of Supreme Court and significant lower court cases, Professor Mayeri understates (but does not ignore) the importance of statutes in her account of the decline of marital supremacy, the liberalization of family law, and the perseverance and expansion of marital privilege.  Overall, Marital Privilege gives enormous attention to plaintiffs, litigators, and judges, while neglecting a lot of the legislators, public officials, and policymakers who were more important to the transformation of American family law. Specifically, legislatures played a more important role in the transformation than courts did, and key legislators (as well as administrators) ought to figure prominently in any account of the transformation of American family law.

For example, the same year Griswold was decided after a bizarre drafting process (1965), the New York Legislature debated the Bartlett Commission’s Model Penal Code-based proposals to decriminalize fornication (consensual sex outside of marriage), adultery (consensual sex where one or more persons are married to someone else), and consensual sodomy (anal or oral sex). Assembly Member Richard Bartlett, a Rockefeller Republican, teamed up with Columbia Law School’s Herbert Wechsler to resist the Catholic Church’s full-court press against these proposals. Ultimately, the legislature voted by a huge margin to continue the criminalization of consensual sodomy and, by a small margin, adultery. (Professor Wechsler cracked, “there are are a lot more of us than there are of them,” namely, “homosexuals.”[5]) But decriminalization of fornication was uncontroversial. While legislative reform moves slowly and unevenly, its role in family law reform has been and remains central, and its stories are just as interesting as those accompanying judicial landmarks.  

Because the Court’s opinion tied the constitutional interest in sexual privacy to the marital bedroom (two plaintiffs were a married couple), Griswold is an ambiguous landmark in the decline and fall of Marital Supremacy. Surely, a key reason marriage was “supreme” in 1960 was that it had a legal monopoly on sexual intimacy, children’s legitimacy, and relationship recognition in general. Like almost all other states, New York made it a crime for unmarried adults to engage in any kind of sexual intercourse—they could not have penile-vaginal intercourse (criminal fornication) nor oral or anal intercourse (criminal sodomy).  Marital supremacy was also advanced by criminal bars to adultery and by harsh divorce penalties that could be imposed on cheating spouses.  Although not the law in New York, many states and municipalities made sexual cohabitation outside of marriage a separate crime.  Because of the criminal law backdrop, unmarried couples, including lesbian and gay couples, could not always be sure that their contracts, wills, and property arrangements would be respected by the legal authorities.

Decriminalization of intercourse between consenting unmarried adults was the most important legal development undermining marital supremacy—and courts played a modest role in this process between 1960 and 2000. Professor Mayeri mentions the 1962 Model Penal Code (MPC), but mainly as a backdrop to the Court’s constitutional privacy jurisprudence (pp. 35, 53).  A couple of sentences note that some states adopted the Code (p. 148). In comparison with the extraordinary detail given to largely unsuccessful constitutional challenges, this cursory treatment ignores the great importance and the complicated process by which the Code’s reforms played out state-by-state.  The crime of adultery, for example, survived as a misdemeanor in early-adopting states like Illinois (1961), New York (1965), and Connecticut (1969) but was repealed in other states like Pennsylvania (1973) and was ultimately repealed in Connecticut (1991) and New York (2024). As Assembly Member Bartlett learned, fornication laws were more vulnerable than adultery laws, and by the year 2000 all but a handful of states had repealed them; in the remainder they were completely unenforced.[6]  Suffering the same fate of repeal at the hands of legislators bowing to social practice were the laws prohibiting sexual cohabitation.[7]

Decriminalization, even when fornication or cohabitation laws had not been enforced, not only ended marriage’s monopoly on sexual intimacy, but also its monopoly of legal relationship regimes. Legally cohabiting couples were presumptively governed by property, contract, and tort regimes that were theoretically less accessible to them when they were living in what courts sometimes called “meretricious” relationships.  Thus, after decriminalization, unmarried couples could, without too much concern about legal enforcement, enter into domestic contracts, wills, joint tenancies, bank accounts, and other instruments that bound together legally lives that were intertwined socially and economically. Statutes applicable to unmarried couples contributed to cohabitation as a quasi-status often recognized or regulated by law; the Violence Against Women Act (1993) is the most famous federal law, but dozens of state and municipal domestic abuse laws were enacted to regulate cohabiting as well as married couples.

In the last half of the period covered by the book (1980-2000 and a bit beyond), city councils were adopting domestic partnership ordinances, albeit with very limited benefits (pp. 247-60). By 2000, dozens of cities and counties had created this new family format for same-sex and, increasingly, different-sex couples. San Francisco’s ordinance (1990) was dramatically expanded by the city’s 1996 law barring contractual relations with any firm not offering domestic partnership benefits. The 1996 law had nationwide ramifications, for San Francisco leveraged airport lease agreements to induce the major airlines to offer such benefits nationwide—and hundreds of other companies everywhere in the country followed their lead, including southern companies such as Delta Airlines.[8]  This was a big deal in the larger public law story of the decline of marital supremacy.

Meanwhile, California adopted a statewide domestic partnership law (1999) that a quartet of lesbian legislators steadily expanded to include most of the benefits and duties of marriage (2003)—similar to the civil union laws or statewide domestic partnership laws enacted in Vermont (2000) and eleven other states plus the District of Columbia between 2005 and 2013.[9] Hawaii’s reciprocal beneficiaries law (1997), adopted as a gesture toward some appreciation of gay and lesbian couples whom the legislature wanted to deny marriage rights, offered many of the unitive benefits of marriage (such as inheritance rights, surrogate decisionmaking, and family leave) without its commitment features and the arduous divorce process. Similar laws with some legal benefits for same-sex couples were adopted in Arizona (1992), the District of Columbia (1992), Maine (2004), Maryland (2008), New Jersey (2004), New Mexico (1995), New York (2010), Rhode Island (2001), Washington (2007), and Wisconsin (2009).[10]  In a singularly underappreciated move, Colorado’s Legislature enacted a law recognizing “designated beneficiaries” (2009), where straight as well as gay couples could pick and choose which benefits and duties they wanted for their tailored relationships. Most of these particular laws are still in effect, even after marriage equality has become the national norm.

Legislatures had their limits—and some gaps were filled in by courts. Or not. Thus, the ALI’s controversial Principles of Relationships (2002) that would have imposed divorce-like rights onto the breakup of longtime cohabitants (pp. 260-66), have not been adopted by state legislatures or supreme courts. State courts have filled that gap with contract principles in some jurisdictions, and a few states have codified those contract principles to create a modest set of cohabitant rights.

The erosion of marriage’s monopoly on the legitimacy of children played out most dramatically, albeit erratically, in the Supreme Court, starting in 1968 (pp. 27-71). Even here, where the Court played a key role, statutes paved the way, starting with the Uniform Act on Paternity (1960), promulgated by the National Conference of Commissioners on State Law and adopted by several states, including such conservative jurisdictions as Mississippi, Kentucky, and Utah. The UAP created a statutory process for recognizing paternity and imposing support and financial obligations on fathers. Thus, statutes helped nonmarital children beyond what the Court was willing to require. Professor Mayeri’s account appreciates the contributions of the Uniform Parentage Act (UPA, 1973), which built on the work of the UAP as well as the judicial decisions she examines in illuminating detail. What is notable about the UPA is that it was the blueprint for widespread statutory reform (p. 218). Why was this uniform law much more successful than the UAP? Professor Mayeri suggests that, in California, there was a synergy between the constitutional protection for nonmarital children and adoption of the UPA or something similar (pp. 225-26), a suggestion that makes sense to me—but I wonder how this synergy played out elsewhere?

An account of the decline and fall of marital supremacy should not ignore the evolution of state adoption laws. Nineteenth-century adoption laws were vague as to who could adopt; some twentieth-century laws limited adoptions to married couples, and agencies often discouraged or refused to process single-person adoptions. As early as 1930, however, New York explicitly allowed adoptions by single persons as well as by married couples (applying jointly).  According to the Children’s Bureau, by the 1970s every state had updated its adoption law to allow single persons to adopt. Of course, single persons have often adopted children to be raised by the adoptive parent and their unmarried partner. Unmarried gay, lesbian, bisexual, and straight couples secured joint “second-parent adoptions” from some state courts in the 1980s and 1990s (pp. 266-81). Vermont (1992), Connecticut (2001), and New York (2010) enacted statutes explicitly allowing joint adoption by unmarried couples.

As a legal matter, decriminalization of consensual sexual intimacy and cohabitation, combined with erosion of discriminations against nonmarital children, and with recognition of other family forms dethroned marriage’s monopoly in these areas and, therefore, its supremacy. But the institution that was dethroned—and that continued to be preferred by the state—was not the institution that existed in 1960. Arguably, the biggest transformation in American family law between 1960 and 2000 was Marital Liberalization, or expanding Americans’ choices of whom to marry, what freedoms they could enjoy during marriage, and under what circumstances they could divorce. Here, too, the Supreme Court played a significant but academically overhyped role, for most of the work was accomplished by legislatures, with the Court sometimes motivating change or, more typically, cleaning up straggler jurisdictions. 

Much is made of Loving v. Virginia (1967), one of the most celebrated Supreme Court decisions of the century.  But the Supreme Court’s invalidation of state “racial purity” laws barring different-race marriages nullified laws only in Virginia and fifteen other states.  By 1967, thirty-three states had either repealed their exclusionary laws or had never barred different-race marriage in the first place.[11] In one state (California, 1948), the race-discriminatory law was invalidated by the state supreme court a generation before Loving.  Little noticed, but also important to liberalization, were myriad state laws and policies barring many people with mental or physical disabilities from getting married. By 2000, almost all of these laws had been repealed or liberalized by statute.  No state recognized same-sex marriages in 2000, but that, too, was on the horizon—mainly the result of state constitutional decisions and state legislative action between 2003 and 2014. By the time the Supreme Court made marriage equality the law of the land in Obergefell v. Hodges (2015), only thirteen states had to change their forms to accommodate lesbian and gay couples.  Eight of the thirteen had also barred different-race marriages in 1967.

One of the biggest changes in the law of marriage in American history—and the biggest “transformation” in American family law between 1960 and 2000—was no-fault divorce. Kicked off by California’s law (1970, p. 98), no-fault divorce statutes spread like weeds in a vacant lot in the 1970s. By allowing unhappy married couples to dissolve their marriages with merely a showing of irreconcilable differences, no-fault divorce statutes fundamentally changed the institution. Marriage was no longer “till death do we part,” and was often just until the sexual chemistry dissipated. This has been regarded as an example of statutory change for the worse (pp. 96-97)—but made much worse by the Supreme Court’s fall-faith-and-credit jurisprudence, which required interstate recognition of “quickie” unilateral divorces where one spouse established residency through a brief sojourn in Nevada and obtained a divorce without consent from the other spouse.[12]

A byproduct of the ACLU’s campaign to persuade the Supreme Court to make “sex” a suspect classification under the Equal Protection Clause was judicial invalidation of explicit sex-based features of marriage, such as “master and servant” laws, alimony rules, and requirements that wives take their husbands’ last names (pp. 77-89). While some states were already revising their family law codes to reduce sex-based terminology and rules, the Supreme Court decisions surely motivated a broader revision of state statutes, including and especially those governing marriage and family. A complete account of the transformation of American family law ought to map the process by which at least some states responded to (or anticipated) the Court’s sex discrimination jurisprudence.

The foregoing changes in the law (as well as legal recognition of antenuptial agreements) transformed marriage from a joint lifelong enterprise, with the husband as titular head, into a formally equal regime where individual choice and negotiated consent dominated the old mandatory rules for sexual expression, lifetime commitment, and spousal support. Although Lenore Weitzman was an early theorist recognizing the movement from status to contract in American family law (pp. 99-104), her landmark contribution was The Divorce Revolution (1985), demonstrating that no-fault divorce, a keystone to the new pro-choice regime, had terrible consequences for women as a group.[13]

Today’s family law is a “guided choice” regime,[14] where the state maintains a thumb on the scales in favor of marriage—i.e., the Marital Privilege of the book’s title.  Oddly, the author does not seriously examine the many reasons the state might have for encouraging romantic couples, especially those with children, to marry and, hence, does not mount a systematic case against a guided choice regime where marriage is privileged. (Such reasons make cameo appearances (e.g., p. 265).) Perennial outsiders, lesbian and gay couples debated whether they should seek marriage equality in the 1980s and 1990s—but Professor Mayeri presents the debate in strategic and material terms (pp. 253-54), without serious focus on the primary argument for same-sex marriage: it was a good aspiration for many lesbian and gay couples, and their marriages were good for the general community.[15]

Professor Mayeri’s biggest contribution is to provide details on how the transformation of American family law has created a regime where the new guided choice regime is populated with a lot of carrots and sticks that are odd, to say the least, and sometimes vicious in application. While everyone agrees that marital supremacy ended in the late twentieth century, Professor Mayeri shows how crude mechanisms like sex crime laws were succeeded by civil law mechanisms directly or indirectly punishing nonmarital families—withholding of a wide range of governmental benefits, mandating paternity disclosure, and employment exclusions. In a particularly illuminating discussion, the book shows how zoning laws emerged as a popular mechanism for regulating or barring cohabitation among unrelated persons (pp. 119-31).

In short, standards and rules incentivizing couples to choose marriage and/or penalizing couples for not choosing marriage have not only survived Supreme Court privacy and sex discrimination jurisprudence (p. 112), but have expanded. In an excellent chapter on “securing marital privilege” (pp. 283-313), Professor Mayeri analyzes Clinton-era statutes that privileged marriage and often penalized nonmarriage.

And what a rogue’s gallery of statutes it was—ranging from the constitutionally squalid Defense of Marriage Act (1996) to the much-criticized Personal Responsibility & Work Opportunity Reconciliation Act (1996) and the Illegal Immigration Reform and Immigrant Responsibility Act (1996) to the much-admired Family & Medical Leave Act (1993). These laws not only privileged marriage but punished nonmarriage in ways that grew worse under the Bush 45 Administration (pp. 293-301). And the process of privileging marriage is ongoing. As suggested by no-fault divorce, the statutory transformation of American family law has not always been beneficial—and Professor Mayeri’s account persuades this reader that the Supreme Court (now more conservative than ever before) is not going to smooth out the rough edges of discriminatory statutes.

For better or for worse, however, the foregoing statutes do not give us a complete account of marital privilege in the period 1960-2000 or today. Was (is) marital privilege also “secured” or entrenched in state statutes?  There is very probably a lot of state-by-state variation. Was there—is there—a red state versus blue state divide on issues of marital privilege, like the divide that June Carbone and Naomi Cahn have documented for family law generally?[16]  Do red states penalize unmarried couples more than blue states?  Have some states adopted a guided choice regime where the “marital privilege” has been reduced in the last two generations? Has the entrenchment or erosion of marital privilege not been accomplished primarily by statute?

Consider Colorado.  Straight, lesbian, gay couples not wanting to get married can enter into civil unions and secure all the legal rights and benefits (and duties) of marriage.[17] If they want only some of the rights and duties, they can sign up to be designated beneficiaries and check off only those rights and duties they choose. For many Colorado unmarried couples, their employer provides benefits for their domestic partners. If unmarried couples cohabit in Colorado, they do not automatically share property or most state benefits, but their mutual contracts or cohabitation agreements are enforced by courts.  Colorado adopted the Uniform Parentage Act and revised its code to eliminate discriminations against nonmarital children. Colorado’s employment law bars discrimination against unmarried persons because of their marital status.[18] How many states have regimes like that in Colorado?  How many states have regimes that punish nonmarital families? What is the range of statutory regimes? These are central questions for any account of the state of marital privilege in the story of family law’s ongoing transformation.

Nor do federal statutes all point in the same direction. Federal full faith and credit statutory and constitutional law has for decades protected unmarried persons or (more recently) couples who have legally adopted children or where one partner has second-parent-adopted the child of their partner. Unlike Colorado’s laws, federal anti-discrimination statutes do not explicitly protect unmarried persons or couples against discrimination—but the Pregnancy Discrimination Act (1978) and the Pregnant Workers Fairness Act (2022) protect pregnant workers regardless of their marital status. Although religious employers might find defense against liability in the Clinton-era Religious Freedom Restoration Act (1993), as a general matter employers who resent out-of-wedlock pregnancies cannot under the federal statutes fire or refuse to accommodate unmarried pregnant workers.  Because of the central role of jobs in people’s lives and relationships, this is a major legal dilution of marital privilege.

The Affordable Care Act (ACA, 2010) is the great super-statute of the new millennium. Although this law falls outside the announced scope of Professor Mayeri’s tome, it is not new in its complicated balance of marital privilege and penalty. ACA access and rules governing health plans do not differentiate between unmarried and married people. In practice, the ACA does affect married and unmarried couples differently—but in ways that can be advantageous or disadvantageous depending on income and filing status. For example, married couples must file jointly for ACA subsidies, which can negatively affect their eligibility for or the amount of subsidies they receive if eligible.[19] Households headed by two blue-collar or poor unmarried partners sometimes receive more favorable subsidies, because their incomes are considered separately.[20] Likewise, the Medicaid expansion often benefits unmarried couples, because their incomes are not combined for purposes of coverage.[21] Allowed by the ACA,[22] employer coverage rules often favor married spouses over unmarried partners, though many employers still recognize and include different-sex as well as same-sex domestic partners.

As illustrated by the ACA’s tax provisions, no account of marital privilege or (sometimes) penalty can be complete without a detailed examination of federal and state income tax law. Again, older patterns are dramatically reflected in newer legislation. Because it drastically curtails Medicaid benefits and imposes new requirements (and paperwork administered by a collapsing bureaucracy), the One Big Beautiful Bill Act (OBBBA, 2025) will affect working class and poor couples whether married or not.  Interestingly, the OBBBA’s increased tax credit for children (now $2200) applies to both marital and nonmarital children.[23] Likewise, OBBBA’s pledge to provide each child born between 2025 and 2028 a $1000 “Trump account” does not on its face discriminate against nonmarital children. Other tax benefits, such as a higher standard deduction and a higher cap for state and local taxes,[24] will help well-to-do taxpayers more than poor or working class taxpayers—married or unmarried. I leave to tax scholars the distributional details of how all this would shake out in practice. The point is that, under tax and safety-net statutes, marital penalties may outweigh marital privileges.

*          *          *

Given its focus on courts, Professor Mayeri’s Marital Privilege inevitably ends on a pessimistic note (pp. 335-37). Specifically, the author laments that the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) may “call into question nearly every major federal constitutional precedent discussed in this book, from Griswold to Obergefell” (p. 335).  I strongly doubt it—in light of statutes. State and federal laws accepting or subsidizing contraceptives reflect a social as well as political consensus that makes radioactive any effort to overrule Griswold, however goofy its legal reasoning. Even if the Court overruled the marriage equality precedents—Obergefell (2015) and Windsor (2013)—the Respect for Marriage Act (2022) assures that more than 1000 federal marriage-based statutes and regulations will include validly married same-sex as well as different-race couples and requires states to recognize such valid out-of-state marriages. The bipartisan support for marriage equality reflected in the 2022 Act will dampen any inclination the Supreme Court or even traditional marriage litigation groups would have to repudiate Obergefell and dislocate untold numbers of same-sex marriages.[25] Because of overwhelming statutory and public rejection of discriminations against nonmarital children and against wives, it is highly unlikely that the Court would revisit those liberalizing precedents.  And, of course, the Roberts Court will not revisit the many Burger and Rehnquist Court precedents that rejected equality and privacy claims for racial minorities, poor people, women, and gay people.

I agree with Professor Mayeri that an important consequence of Dobbs is to encourage red states to impose statutory or administrative prohibitions or burdens on abortion that fall most heavily on minorities and poor or working-class women and their families (pp. 335-36).  Her point is not only well-taken as regards Dobbs, but illustrates how constitutional baselines interact with federal and state statutes, which in turn influence the Court’s baseline-setting. For the rights of nonmarital children and same-sex couples, the synergy has often been positive—but for women of color or without resources the synergy has been devastating. 

William N. Eskridge Jr. is the Alexander M. Bickel Professor of Public Law at the Yale Law School.  His email address is william.eskridge@yale.edu.