Response to Commentators

Guest Blogger

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

Serena Mayeri

I am immensely grateful to each of the symposium participants for taking time to engage so thoughtfully with this book, and for the countless ways their intellectual influence and personal generosity enriched the project over the dozen-plus years of its gestation. I can’t possibly do justice here to each set of comments, much less the authors’ own scholarly oeuvres and impact, so offer just a few reflections on some of the themes their posts raise.

            Kimberly Mutcherson’s post explores ideas that I came to realize were at the heart of my project, in no small part because of her own and others’ scholarship and advocacy. From the beginning, I understood the history of marital primacy as deeply intertwined with white and male supremacy, hence the term “marital supremacy” to describe the reigning legal regime in the mid-twentieth century U.S. It immediately seemed clear that single parents of color were central figures in the challenge to marital supremacy. I more gradually came to see what many of these historical actors were fighting for as (what Black feminists later named) reproductive justice. Marital supremacy, in other words, not only furthered racial and economic subordination but also served as a key tool of reproductive injustice. Eventually I realized the converse was also true: many of the reproductive justice battles of the 1960s and 1970s—for welfare rights; for equality in employment, housing, zoning, government benefits, immigration and citizenship; for the ability to form, care for, and support one’s family—were fought on the terrain of marital status law.

            And that was tough terrain on which to fight. The “staying power of marriage inequality” Professor Mutcherson evokes meant an uphill battle for marital primacy’s most intrepid challengers. Unlike the fight against racial segregation or for formal legal sex equality, no concerted social or legal movement mounted a coordinated attack on marital supremacy. Instead, many challenged the legal primacy of marriage as a collateral consequence of their work for other causes—civil rights and liberties, anti-poverty, feminism, gay liberation. Others became activists or plaintiffs or community organizers because the law intruded on their own ability to build or sustain a family or livelihood or to avoid incarceration or penury. But it’s far from clear that if, say, the ACLU had launched a Nonmarital Equality Project in the 1970s the outcome would have been starkly different. Structural, political, and ideological forces conspired to make marriage as an organizing principle difficult to unseat, a prime candidate for what Reva Siegel calls preservation through transformation.

As Professor Mutcherson observes, Marital Privilege can be read as a cautionary tale about the limitations of the law—as an advocacy tool for social movements, and as a vehicle for social change. It is but one arrow in the quiver of advocates and activists, as she notes. In the 1960s—for lawyers at least—law, especially the federal constitution, held out the promise of equality, privacy, and liberty: a right to subsistence, sexual and reproductive autonomy, the freedom to form families with state support but without government intrusion and surveillance. But by the end of the 1970s, constitutional challenges—some successful, some not—had run their course without realizing these more radical visions.

The comparative angle that Julie Suk provides, here with a fascinating glimpse into the German example, suggests that constitutional law need not be so limited a tool. There, a guarantee of protection for marriage and family sits comfortably alongside a right to equality for nonmarital children. And, she explains, the Basic Law (1949) (adopted in 1990 as reunified Germany’s constitution) also contains a positive right to community support for all mothers regardless of marital status. Feminist interventions propelled interpretation of “family” to include single mothers and their children. Government benefits are not channeled through marriage, and equal treatment of children regardless of birth status is a public commitment as well as a private law principle. Drawn from her own scholarship on European approaches to social welfare, family, and employment law, Professor Suk’s comparative glance illuminates horizons of possibility for what could be, including legislative interventions required to realize constitutional guarantees.

Professor Suk also invokes state constitutions, a potential source of positive rights that federal courts have withheld despite advocates’ valiant efforts. In the wake of Dobbs, state constitutional amendments—secured through ballot initiatives and legislation—lay groundwork not only for protection from government interference but also for state legislative and executive action to expand access to reproductive health care, combat maternal and infant mortality, and protect against the criminalization of pregnancy that long has ensnared poor women and people of color.

Bill Eskridge’s post highlights the importance of looking outside the courts for transformations in the American law of the family. He rightly notes the importance of decriminalizing nonmarital sex and cohabitation, with its collateral impacts of allowing unmarried couples to execute private instruments that allowed them to legally intertwine their lives. The complex and multivalent process of decriminalization in various jurisdictions deserves a much more thorough treatment: Professor Eskridge’s own magisterial work on sodomy laws, Dishonorable Passions, provides an excellent model and works by Cynthia Grant Bowman and Elizabeth Pleck have laid important groundwork. Similarly, how states revised their laws to comply with constitutional sex equality principles would be a valuable history to investigate. Professor Eskridge’s richly detailed and riveting account of the marriage equality movement, coauthored with Christopher Riano, exemplifies inclusion of a diverse array of legal actors in such a history. I tried to profile as key characters many who were not primarily plaintiffs, litigators, and judges (Jacobus tenBroek, Eleanor Holmes Norton, Harry Krause, Lois Fernandez, Daniel Patrick Moynihan, and Johnnie Tillmon, to name a few). But it’s fair to say that legislators—and certainly administrators, who feature prominently in (for example) Marie-Amélie George’s excellent recent book Family Matters: Queer Households and the Half-Century Struggle For Legal Recognition—play a less prominent role in my book than they might.

To the extent that my account does focus on courts and on federal constitutional cases (discussion of which comprises a little less than half of the book by my own rough count), Professor Eskridge’s post prompted me to consider why. Part of the answer relates to the questions that motivated the study: Often (though certainly not always) individuals directly affected by marital status law—and the organizations and lawyers who represented them—engaged with law reform in the 1960s and 1970s through constitutional challenges. (Much less so in the 1980s and 1990s, as the book’s later chapters reflect.) Hope generated by the LDF’s success in racial desegregation cases is one likely reason for this focus; more mundanely, persuading the U.S. Supreme Court to declare something unconstitutional nationwide was more efficient than changing the law state by state. I also hoped to explain why efforts to challenge marital supremacy succeeded only partially and failed in ways that had a lasting impact on future challenges to marital primacy. Put another way, federal constitutional rulings set the boundaries on what legislation is possible, and guard against future retrenchment—or don’t. States’ often idiosyncratic approaches to family law mean that it’s nearly impossible to find a representative case study. That said, state-specific studies are supremely valuable—see, for example, Doug NeJaime’s or Melissa Murray’s work on domestic partnerships in California or historian Alison Lefkovitz’s study of alimony awards across time in Illinois, part of her 2018 book (nationwide in scope) Strange Bedfellows: Marriage in the Age of Women’s Liberation.

On Professor Eskridge’s point that a detailed examination of federal and state income tax law is essential to a complete account of marital privilege, I stand guilty as charged. My lack of expertise (to put it mildly) in tax law combined with the extensive literature on marriage and taxation (as well as illuminating discussions in, e.g., historian Nancy Cott’s classic Public Vows: A History of Marriage and the Nation) meant that I referred only in passing to the ways that the tax code favors couples with one primary earner over those with more equal incomes. I should have done more at least to incorporate secondary literature in this area, as (for example) in chapter 3’s treatment of historian Suzanne Kahn’s excellent work on the public law of divorce in Divorce, American Style and Deborah Dinner’s terrific article on the divorced fathers’ rights movement, The Divorce Bargain.

The Pregnancy Discrimination Act of 1978 (and the 2022 Pregnant Workers Fairness Act) are important incursions on marital supremacy for the reasons Professor Eskridge suggests. Chapter 6 describes how formal exclusions receded in employment, which enabled single mothers to privatize their children’s dependency, but not in, say, welfare or even military service—where, as historian Jennifer Mittelstadt has shown, the benefits of the military welfare state burgeoned as the civilian welfare state retrenched. In other words, laws that protected pregnant workers, including unmarried women, allowed single mothers to care for and support their children without any help from the state. That’s a hallmark of marital privilege: functional definitions and standards, which allowed for the exercise of discretion by administrators and judges, often smuggled in similar moral judgments and biases. And discrimination frequently persisted in contexts where ending it was more rather than less expensive for the state.

Professor NeJaime’s post focuses on this functional turn which, like marital status law itself, cuts across many fields—parentage, domestic partnership, employment, military service, housing and zoning among them. Again, patterns gradually came into view over the course of the project. Functional parenthood was familiar from the pathbreaking work of scholars such as Nancy Polikoff, Martha Minow, Katharine Bartlett, Melissa Murray, and Professors NeJaime and Courtney Joslin. Kate Redburn and Stephen Vider each have written superb historical accounts of functional definitions of family in zoning laws. Researching the treatment of nonmarital pregnancy in the military and in public schoolteaching helped me to see a shift from moralistic formalism toward function in employment discrimination cases, where a “nexus standard” emerged in administrative proceedings regarding gay government employees (see Margot Canaday’s magnificent book Queer Career) and spread to cases involving other sexual conduct that deviated from a heterosexual marital norm. I began to see the functional shift everywhere—for example, in public housing, where a 1967 HUD circular directed housing authorities not to exclude mothers and children solely because of “illegitimacy” but rather to determine whether personal conduct would impede their ability to be good tenants. Eventually, I connected the dots with functional reasoning in cases about marriage and divorce. Strategists such as Pauli Murray and Ruth Bader Ginsburg insisted that function, not sex, should govern the legal treatment of men and women, husbands and wives, across domains.

Professor NeJaime suggests that the functional shift within marriage may have lent authority to functional approaches outside of marriage and also notes their ubiquity in nonmarital contexts. This insight recalls his own pathbreaking scholarship on the relationship between marriage and nonmarriage in partnership and parenthood, which taught me to understand their mutually constitutive nature. The boundaries between marriage and nonmarriage and between different-sex and same-sex couples have been porous, his work demonstrates: the contours of marriage shaped nonmarital recognition in California, for example, while same-sex couples’ claims to partnership and parenthood altered their meaning for everyone. Perhaps a similar dynamic operated writ large as the functional turn bled across social contexts and legal domains.

Functional regulation historically has been double-edged, as its foremost proponents have recognized. Advocates like Nancy Polikoff, Nan Hunter, and Paula Ettelbrick carefully weighed the attendant risks as they developed functional parenthood doctrines in the late twentieth century. They promoted second-parent adoption as an alternative that could protect parent-child relationships ex ante for those without a genetic or marital tie and avoid state scrutiny ex post. But second-parent adoption, too, required intrusive state intervention even as it provided greater inclusion. Marital status continued to matter in the adoption process, with unmarried nonbiological parents often compelled to prove their fitness as if they were strangers to a child they are raising as an equal co-parent.  

Professors Joslin and NeJaime’s empirical study of several hundred cases decided since 1980 suggests that in practice, functional parenthood doctrines have had salutary impacts and mostly avoided the pitfalls that concerned advocates then and now. When the alternative is to require marital or biological relationships for recognition, functional parenthood is a crucial advance. And in circumstances where parental recognition is not a zero-sum game—as Professors Joslin and NeJaime have shown, multiple parent recognition is much more prevalent than previously understood—honoring functional relationships benefits all. Their vital work on the 2017 UPA and its adoption in the states makes marital status and sex matter less to parentage by recognizing relationships based on function and intent in addition to marriage and biology. By promoting voluntary acknowledgements of parentage (VAPs) and providing for recognition of more than two parents under certain circumstances, the 2017 UPA harnesses the advantages of functional definitions while minimizing their hazards. And these functional definitions redound to the state’s benefit by providing private sources of care and support for children.

Just as recognizing functional parents need not be zero-sum, Clare Huntington’s post underscores how the 1970s feminist dilemma described in Chapter 7—balancing rights for nonmarital mothers and fathers—is not irresolvable. In a recent article, Professors Huntington and June Carbone address how family law continues to exacerbate the estrangement of economically precarious unmarried fathers from their children, less because of the law’s substantive content than because these men often fall outside of the law’s ambit altogether. In contrast to divorced fathers with means, who now have much greater access to shared parenting, low-income single fathers often are penalized and isolated by child support and welfare systems, as research by scholars such as Solangel Maldonado and Tonya Brito has shown.

Professors Huntington and Carbone propose state-funded, community-run centers to provide holistic support to fathers that enables mutually beneficial co-parenting relationships with mothers. Their proposal is “positive-sum,” designed to enhance both parents’ autonomy and well-being through employment services as well as alternative dispute resolution mechanisms. It avoids court-based solutions in favor of community-centered approaches and could yield egalitarian benefits along several dimensions, including race, class, sex, and marital status. Such approaches could pioneer institutional infrastructure that might replace coercive family policing models like those compellingly critiqued by Dorothy Roberts and by abolitionist activists. They require investment of public resources but attempt to avoid the punitive surveillance typical of state interventions in the lives of nonmarital families living in poverty.

Kristin Collins’s post draws from her field-defining scholarship and advocacy at the intersection of family and citizenship law, soon to culminate in a book, Blood and Nation: The Making of the Citizen Family in American Law. She makes a critically important point about marital primacy’s complicated valence in immigration and citizenship law, underscoring continuities as well as ruptures.  As Professor Collins has demonstrated in transformative studies that mine previously untouched administrative and other archives, marital status law—state, federal, foreign, and international—has been intricately intertwined with racial exclusion and with gendered assumptions about parental rights and duties. Here, she explains the central role that marital status law has played in shaping the contours of U.S. citizenship and belonging: as a tool of exclusion but also as a powerful engine of inclusion in the second half of the twentieth century, as marriage to a U.S. citizen or lawful permanent resident conferred preferences that enabled richly diverse post-1965 immigration, especially from Asia and Latin America.

Final edits to the book were due on the eve of the 2024 election. As Professor Collins notes, the epilogue ends with the Supreme Court’s June 2024 decision in Department of State v. Muñoz—a ruling that in hindsight foretold not only the limits of the right to marry and the precarity of marriage equality but the cheapening of U.S. citizenship and of due process rights for all. For Sandra Muñoz, a Los Angeles immigrant rights lawyer, marriage provided no right even to an explanation for her spouse’s exclusion from the country, much less to live with her husband in the United States. Tattoos—determined by an expert to have no relationship to criminal activity or gangs—appear to have been the primary reason for the exclusion of her husband, Luis Asencio Cordero, after he briefly returned to his native El Salvador in 2015 to complete the naturalization process.

A decade later, tattoos and other dubious markers of alleged criminal involvement landed an unknown number of Latin American immigrants in the notorious Salvadoran CECOT prison with no process, marriages or other ties to U.S. citizens notwithstanding. After a federal district court found a “mountain of evidence” that ICE agents sometimes violently and apparently indiscriminately detain Latinos and other people of color on the streets of Los Angeles without reasonable suspicion, the Supreme Court recently allowed resumption of “roving patrols” that sweep in U.S. citizens and legal residents. Heart-wrenching scenes of spouses, parents, and children abruptly separated as they emerge from courtrooms, doctors’ offices, schools, and homes suggest that today, immigration status—and sometimes race—eclipse any privilege conferred by marriage or family bonds.

The harrowing present reality makes it difficult to find a positive note on which to end. But just as states and localities seized opportunities for experimentation with more expansive definitions of family in the late twentieth century, today they are important loci of resistance to federal retrenchment on many fronts, from reproductive rights and gender-affirming care to arbitrary and violent immigration enforcement. And the state and local innovations, statutory reforms, community initiatives, and comparative examples championed by this symposium’s authors offer hope for a future that more completely realizes the vision of those who struggled against marital supremacy and reproductive injustice in last century.

Serena Mayeri is Arlin M. Adams Professor of Constitutional Law and Professor of History (by courtesy) at the University of Pennsylvania Carey Law School. She can be reached at smayeri@law.upenn.edu.