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 21st-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.