The Staying Power of Marriage Inequality

Guest Blogger

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

Kimberly Mutcherson

Serena Mayeri’s meticulously researched book, Marital Privilege, traces the history of the shift from marriage supremacy to marital privilege in the U.S. through the many legal cases that shaped the marriage landscape from the 1960s into the 2000s . She shows the extent to which marriage is a legal transaction as much as (perhaps sometimes more than) an expression of love and devotion between two people. It shapes the lives of people who marry and equally shapes the lives of people who opt not to marry or who cannot marry. While acknowledging significant victories along the way, Mayeri traces how movements have relegated many of the most egregious elements of marriage supremacy to the dustbin of history (anti-miscegenation laws), but she also reveals how marriage still reigns as a most favored legal status for people who build lives together, especially if they have children. She reminds us of how marriage law encourages conformity in family structure, incentivizes preferred behaviors (childbearing only when married), and protects government coffers by privatizing the costs of care.

There is incredible richness in Mayeri’s book, far more than I can cover for purposes of this symposium, so I want to highlight a few themes that I found particularly powerful while reading the book and that strike me as especially pertinent for those committed to a more egalitarian future for family building in the United States. The first theme is the consistent throughline of family, reproduction, and parenting as sites of sustained racial oppression in the U.S. In a time when efforts to erase and distort history flow from the highest ranks of government, the enduring relationship between marriage law, white supremacy, racism, patriarchy, and wealth accumulation cannot be underplayed.

Mayeri fills her book with stories, some well-known and others likely far less known, that remind us of the need for diligence lest we lose progress and momentum. For instance, she begins the first chapter of the book describing a series of segregation laws passed in Louisiana in 1960 to retaliate against court-ordered desegregation of New Orleans public schools. In addition to purging over 23,000 children from the state’s public assistance program because of their “illegitimate” status, the state passed provisions requiring Black men to disclose any children they fathered while unmarried and that erected barriers to voting for women who gave birth without being married or who had ever been in a common law marriage (15). She also notes the then Governor’s attempts to ban Black women from giving birth in public hospitals and to criminalize the act of giving birth to a child out-of-wedlock. While the majority of the U.S. Supreme Court increasingly displays hostility to the idea of a sphere of Constitutionally protected privacy when it comes to certain aspects of people’s intimate lives, Mayeri’s work reminds readers that privacy has always been a luxury for many marginalized people in the U.S. Whether it’s poor Black women forced to share details of their romantic lives to receive public benefits (200-203) or gay people losing custody of their children because of their “homosexual lifestyle” (267), retrenchment is inevitable if we fail to both acknowledge and condemn the oppression of the past. Simultaneously, we must allow the afterimage of those oppressions to fuel a commitment to greater respect for and legal protection of pluralistic families.

In keeping with a desire to see more of the history of racist laws shaping present day family making, an aspect of Mayeri’s narrative that I would love to see her expand in future work is a more robust account of the racialized nature of marriage law in the United States that goes beyond Black and white. In Marital Privilege, she writes a great deal about differences between Black people and white people in terms of marriage status and childbearing, but much less so about other groups of people of color, including Latinos, AAPIs, and Indigenous/Native American people, though some of those stories also appear in the book. I see this not as a choice to exclude, but a reflection of the persistence of the dominant racial divide in the U.S. The power of Mayeri’s work should encourage other scholars to continue to unearth the multitude of stories, some of which also sparked lawsuits, that reflect the ways in which people of color struggled to protect their families. These other stories are tremendously valuable not only because they provide a fuller account of history, but because they potentially reveal different facets of how marriage law has harmed people of color and still needs change. These excavations could be especially illuminating and useful as pronatalism, and the explicit or implicit eugenic and racist logics that undergird it, find more adherents in our present day.

Second, though more of an implicit than explicit theme in the book, Mayeri’s work is a study in the ways in which social movements build power, create change, and leave people behind on their way to victory. This is exemplified by the many stories of meticulously crafted impact litigation leading to court victories interspersed with stories of ordinary people seeking out individual lawyers to pursue cases. These latter cases made space for imperfect plaintiffs and sometimes inelegantly framed issues or simply issues framed in a way that did not conform to the precepts and strategies of mainstream advocacy organizations. For instance, Mayeri describes the well-known series of cases filed on behalf of men experiencing sex-based discrimination argued by Ruth Bader Ginsburg and the ACLU Women’s Rights Project based on ideas articulated by Pauli Murray (80-83)(for more about the link between these two legal titans, pick up Mayeri’s other fantastic book, Reasoning from Race). In contrast to these well-planned litigation strategies were cases targeting legal exclusions that had particularly deleterious impacts on low-income non-marital children and unmarried mothers (85-89). Ginsburg’s victories did not automatically translate into victories for other plaintiffs despite similarities in their cases. Here, Mayeri’s adept storytelling illustrates not just the haphazard way that law makes progress toward familial equality, but how mainstream advocacy, however well-intentioned, frequently leaves some marginalized people behind and never comes back for them. As Mayeri succinctly explains, “The gender-egalitarian, functional principle Ginsburg and her allies championed thus did not extend to unmarried women and men” (88). In our current moment of political upheaval in the U.S. with the ascendence of Project 2025 and its focus on protecting “[f] amilies comprised of a married mother, father, and their children [which] are the foundation of a well-ordered nation and healthy society,” the need to center people at the margins in advocacy for meaningful and sustainable broad-based change in how families are legally formed and protected is palpable.

Third, and connected to the above theme about how movements agitate for change, Mayeri’s book raises deeply engaging questions about law as a means to an end versus law as an end in and of itself. In other words, while Mayeri’s book provides a persuasive account of how and why marriage shifted from a supreme status to a slightly less powerful position of privilege, it also shows that marriage continues to play an outsized role in how people get to shape their private family lives. The frailty of gains in marriage access reflected by ongoing political and legal efforts to rollback marriage equality reflects the nature of marriage as a creature of the state built on the back of whatever evolutionary urges push humans toward committing to a life together. What Mayeri so carefully establishes in her book is that the most enduring hallmark of marriage law in the United States is its insistence on carving out marriage as a special status that largely acts as a vehicle for state control over sexuality (especially women’s sexuality), privatization of dependence (and shaming of people who cannot financially sustain themselves without state support), buttressing of capitalism, and reinforcement of racial hierarchies, reproductive oppression, and class divisions. Ultimately, Marital Privilege is an incredible compilation of lessons about what is lost and who suffers from a system of family formation premised on hierarchy and scarcity.

A reader of Mayeri’s book will be left with a strong impression that the hold that marriage has over U.S. law is virtually unshakeable and that making inroads into marital supremacy is a slow and exacting process. The leaders of the movement for marriage equality made a deliberate and savvy choice to name their movement not as a movement for same-sex marriage, as though they were asking for the law to create a new category of marriage, but as a movement for equality in access to marriage. Thus, marriage equality was a step toward eradicating an invidious form of marriage discrimination that harmed thousands of individuals and families throughout the United States. But, as Mayeri’s book meticulously documents, marriage in the United States has never been and does not seem on track to ever be a status fundamentally based on notions of equality despite the removal of some legal impediments to access to marriage over time. Thus, it should come as no surprise that even as marriage equality celebrates a triumphant 10-year-anniversary, a battle against it is still being waged. Marriage matters deeply and, consequently, who gets to marry also matters deeply.  

The staying power of marriage despite how its primacy hurts so many suggests ways in which Mayeri’s invocation of reproductive justice (RJ) in Marital Privilege is especially useful. As Mayeri explains, RJ is a movement, now also a framing and theoretical device for scholars, created by Black women advocates and activists in the mid-1990s as an alternative (or companion depending on one’s mindset) to the reproductive rights movement. RJ takes a human rights approach to its three central tenets which are the right to have a child, the right to not have a child, and the right to raise one’s children in safe and healthy environments. It is fundamentally intersectional, recognizes that reproductive oppression varies across identity categories, takes deep account of how history shapes the present, frames its asks in terms of both negative and positive rights, and treats law as an arrow in a quiver full of tools for lasting and potentially revolutionary change that also include public education, civil disobedience, mutual aid, and more.

Thus, part of the story that one could tell about why marriage remains so central in our family lives is that the shift that some people are searching for from marriage to a wider range of options for family building and legal recognition, cannot be achieved simply through statutes and court opinions. The work is personal, grassroots, and foundationally radical. Sometimes, the greatest gift that a well-done book about law can confer is the knowledge of law’s many  limitations, and Mayeri’s book very much fits into this tradition. No doubt, to the extent that law builds impediments to equality, it generally must also be used to breakdown those impediments, but changes in law are seldom sufficient to bring about deep societal change. Instead, in keeping with RJ, the work of breaking down marital privilege and the detriments that it creates for so many, requires that, in the words of the 2025 National Black Women’s Reproductive Justice Agenda, we continue to “shed[] light on the multiple, combined forms of systemic discrimination and oppression that contribute to the reproductive oppression of Black people [and attack the] interlocking systems of oppression (i.e., race, class, gender, etc.) [that] make up the lives of women of color.” It is only through multi-faceted work on many fronts, led by leaders who broadly reflect this country’s diversity, that lasting change and a country in which many families flourish without the benefits and constraints of marriage becomes possible. 

Kimberly Mutcherson is a Professor of Law and Dean Emeritus at Rutgers Law School in Camden. You can reach Professor Mutcherson by email at kim.mutcherson@rutgers.edu.