Promoting Equality and Marriage

Guest Blogger

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

Julie C. Suk

The “Transformation of American Law” that drives Serena Mayeri’s monumental book, Marital Privilege, is the shift from marriage as the supreme distributive mechanism across various areas of law towards marriage as a mere privilege within legal regimes that continue to distribute unequally, though less so.  This “transformation,” as Mayeri tells us in the book’s conclusion, was not of the seismic shift variety; it was a “preservation through transformation” of the oppressive inequalities produced by marital supremacy (p. 324). Through an impressive synthesis of Supreme Court decisions, legal scholarship, and the archives of litigants, lawyers, judges, and social movement actors from the 1960s to the present, Marital Privilege explains how and why laws benefiting marriage and the marital family still contribute causally to the material disadvantage of poor, Black, immigrant, and other disfavored people.

          Dislodging marital supremacy proved difficult in part because the tools deployed by its challengers—the constitutional guarantees of equal protection and due process—were limited.  Or at least because courts decided to limit those constitutional provisions. Perhaps the cases that provided the litigation opportunities were not the best vehicles to challenge the significant inequalities stemming from people’s family situations and the state’s involvement or lack of involvement in them.  Chapter 1 begins with the example of discrimination against “illegitimate” children in eligibility for welfare benefits, who were disproportionately Black.  And Chapter 2 recounts litigation challenging public housing practices of excluding households with nonmarital children—which also harmed Black families. “Making heterosexual marriage the gateway to social and economic rights magnified the effects of racial inequality,” (p.19) Mayeri notes.  But the Equal Protection Clause did not mean heightened scrutiny for the law’s unequal treatment of marital and nonmarital children; courts only intervened when they deemed the burden of parents’ transgressions on innocent children to be excessive. (p. 62). Equal Protection jurisprudence also rejected arguments based upon racial disparate impact or poverty discrimination, evolving to limit the avenues by which the dynamics of white privilege could be challenged.   

Similarly, the constitutional law of due process—substantive and procedural—offered feeble protections for nonmarital families’ autonomy.  The Supreme Court’s recognition of procedural due process rights for unmarried fathers in Stanley v. Illinois did not stop the court from enforcing gender stereotypes and marital family norms to deny the claims of future unmarried fathers.  And, while the right to marital privacy in contraceptives in Griswold got extended to include the right of privacy in contraceptives for unmarried couples in Eisenstadt, that negative right to sexual privacy did not translate easily into a constitutional challenge to state laws that presumed that a man who cohabited with a woman and her children were a “substitute father” for the purposes of calculating welfare entitlements. (p. 52)

          Mayeri associates the legal scholar Harry Krause with this limited “transformation” story. Krause appears sporadically throughout the book as the figure that pushed the law to  pursue nonmarital fathers in the name of equality for nonmarital children.  Mayeri contrasts Krause’s approach to loosening marital supremacy in the defense of “illegitimate” children to the more ambitious goals of poverty scholars and activists (among them Jacobus TenBroek), who attacked the privatization of financial support for children in favor of heightened scrutiny for policies disadvantaging poor children under constitutional equal protection law. (p. 27).  Krause focused on decoupling parentage from marriage to protect each child’s best interests. The view that prevailed in American law, as Mayeri characterizes it, was Krause’s. (p. 187). And the impetus to identify unwed fathers to impose support obligations on them may have reinforced gender stereotypes and exacerbated inequalities of race and class.

Did the efforts to help “illegitimate” children by holding their biological fathers responsible impede a more transformative modernization of family law and policy?  The current regime of marital privilege, while representing progress from the old regime of marital supremacy, falls short of the liberal egalitarian vision of a legal order which accords equal respect to all forms of family structure (marital, nonmarital, cohabiting, communal, multigenerational, etc.), to both biological and social parent-child relationships, and to many forms of adult coupling (heterosexual, homosexual, or not sexual).  The limited successes of constitutional litigation invoking some version of this libertarian-egalitarian vision produced some gains for children born out of wedlock, some rights for nonmarital fathers and single mothers, some benefits for male caregivers and female breadwinners, and the constitutional right to marry for same-sex couples.  But these gains settled into legal regimes that still privilege marriage, despite the modern reality of significantly lower marriage rates amongst the least privileged Americans.  While Marital Privilege does not mine the data or sociological literature on the extent and causal sources of the marriage gaps between rich and poor or Black and white populations, it suggests that what is troubling about the endurance of marital privilege is that intensifies the privileges of whiteness and wealth in America. The history revealed by this book raises genuine questions about whether and to what degree reducing marital privilege will promote real equality.

Complicating the picture is 21^st-century data purporting to support the pro-marriage norms of the Moynihan Report.  Economist Melissa S. Kearney argues in The Two-Parent Privilege: How Americans Stopped Getting Married and Started Falling Behind (2023) that the decline of marriage has made vulnerable populations worse off. Relying on data measuring the academic and social advantages of children raised in two-parent marital households, she defends marriage as an economic engine rather than a moral or religious one.  According to this logic, the problem is not that law privileges marriage too much, but that it does not do enough to strengthen and lengthen marriage for disadvantaged populations. Can the law promote marriage without shunning those who choose not to marry or fail to marry?

Through the figure of Harry Krause, Mayeri’s story of the limited transformation of American law lends itself to a consideration of the alternative constitutional trajectories of transformation of marital supremacy in other modern democracies.  Krause was a leading scholar, not only of family law, but of comparative law.  As Mayeri notes, Krause grew up in Germany, immigrated to the US for college, and briefly returned to Germany as a U.S. army draftee 1950s. (p.24)   Around the time that Krause published his law review contributions on equalizing the status of “illegitimate” children under the Equal Protection Clause and proposing what evolved into the Uniform Act on Parentage, he also published “Bastards Abroad: Foreign Approaches to Illegitimacy” in the American Journal of Comparative Law in 1967. Because  American law’s treatment of “illegitimacy” rested on “legislative and judicial accident rather than intelligent design,” Krause declared, “Modernization is overdue,” and urged American law reformers to consider the experience of other countries.  “Throughout the world,” he noted, “the illegitimate’s demand for a measure of equality increasingly is being recognized as a basic human right.” 

Krause emphasized the German constitutional provision that explicitly and unambiguously guaranteed the equality of children born outside of marriage, which statutory proposals were trying to implement.  Article 6.5 of the 1949 German Basic Law provides:

Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage.

This provision operates in addition to the prohibition of discrimination on the basis of “parentage,” (along with other grounds of discrimination such sex and race) in Article 3.3.  Krause read Article 6.5 as “a constitutional provision that does not require equality, but asks for equal conditions.”  Because the provision was clear that children born outside of wedlock should have the same opportunities for mental development and their position in society as marital children, the German statutory implementation of this provision attempted to provide such children opportunities for a relationship with their fathers, which the existing Civil Code denied by making the nonmarital child a legal stranger to the biological father.  Establishing legal obligations of nonmarital fathers was only one piece—the private-law piece—of this constitutional substantive equality commitment. It was compatible with—and largely assumed—the responsibility of the public and the state for these equal conditions. By this time, Krause noted, “the position of the illegitimate in German public law is substantially equal to that of the legitimate child.”  But only fragments of this modernized legal regime traveled well to America.

Article 6 of the German Basic Law contains other provisions which could have been interpreted to be in tension with fully equalizing the conditions of nonmarital children.  Article 6.1, for instance, explicitly inscribes what Mayeri would call marital privilege into the constitutional text:  “Marriage and the family shall enjoy the special protection of the state.”  But the German Constitutional Court rejected the argument that the special protection of marriage was incompatible with the protection of nonmarital children.  When that provision was adopted, the few female framers in the 1948 constituent assembly insisted that a legal “family” need not include a married couple; a single mother and her children must be treated as a “family” especially after the demographic conditions of male shortage due to World War II.  Article 6.4 (which I discuss in Chapter 6 of my book, After Misogyny (2023)), provides that “Every mother shall be entitled to the protection and care of the community.”  A legal protection of mothers, along with Article 3.2’s guarantee of substantive sex equality, might have assuaged American feminists’ fears of empowering unmarried fathers that Mayeri discusses, (p. 236), or quelled American antifeminists’ fearmongering about the ERA depriving mothers of protections and forcing them to work (p. 96). Decades later, in 2001, the German Constitutional Court rejected arguments by conservative opponents of civil partnerships who argued that the state’s duty to protect marriage prohibited the state from supporting other relationships through law.  In a series of decisions that paved the way to national legislation authorizing same-sex marriage, the Constitutional Court determined that the constitutional duty to protect marriage did not require the law to elevate marriage above other worthwhile relationships. A decades-long dialogue between the Constitutional Court and the legislature expanded protections for the dignity and equality of people outside of marriage, while also protecting marriage as constitutionally prescribed.

Constitutional litigation leading to U.S. Supreme Court decisions is not the only avenue by which marital supremacy and marital privilege can be challenged.  But to the extent that Mayeri’s story of marital privilege is a story of constitutional law and its limits, those seeking further transformation beyond “preservation through transformation” may benefit from broadening the horizon of ideas for American law.  While the grass is not necessarily greener in Germany, expanding our constitutional vocabulary—perhaps through imagining amendment of constitutional text, at least at the state level—may be one project that Mayeri’s thorough history should inform. Such projects may also redirect transformative efforts away from courts. 

Julie C. Suk is Professor of Law and the Honorable Deborah A. Batts Distinguished Research Scholar at Fordham University School of Law. She can be reached at jsuk4@fordham.edu.