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.