Balkinization: Understanding the Roots of Today’s Marital Inequality

Understanding the Roots of Today’s Marital Inequality

Guest Blogger

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

Clare Huntington

On a research leave in the fall of 2019, I was in Aalborg, Denmark, presenting my work on inequality to a group of Nordic scholars. Every time I mentioned “nonmarital families,” I saw blank stares around the room. When I asked about the confusion, a scholar explained that a nonmarital family is not a distinct family form. Rather it is the same family at a different point in time. A couple will start living together, have a child, get married, and then have a second child. And although the marriage may be personally significant, it has limited legal effect. Before and after marriage, a couple enjoys considerable state support and benefits, as individuals and as a family.

Not so in the United States. Here, parents who have children outside marriage do constitute a distinct group. They are typically lower-income, do not have college degrees, and their relationships often don’t endure. Moreover, their nonmarital status has significant legal consequences. As Serena Mayeri meticulously documents in Marital Privilege, our legal system has long favored marriage above all other family forms, channeling benefits and subsidies to married parents. Underlying this privileged place for marriage, Mayeri demonstrates, is the government’s default assumption that if parents marry, their children will thrive.

As a historian, Mayeri traces the evolution of the state’s stance towards marital status, from an era in which marriage had clear legal supremacy to today’s approach of privileging marriage. She also exposes the social consequences of making nonmarital families second-class citizens. As Mayeri convincingly shows, the state no longer directly penalizes nonmarital children, but the privileging of marriage harms the children of unmarried parents and exacerbates inequality.

Mayeri’s tour de force provides an essential foundation for any serious effort to address inequality in America. Here, I want to highlight two dimensions of family-based inequality that her work illuminates: the ongoing disadvantages facing unmarried fathers and the pernicious tenacity of racial inequality.

Unmarried fathers deserve more scholarly attention, and Mayeri’s excellent chapter, Unmarried Fathers and Sex Equality, is essential reading for anyone working on this issue. Among its many contributions, the chapter helps explain how the legal system came to place unmarried fathers at the bottom of the family pecking order. Mayeri’s compelling account begins in the 1960s, when unmarried fathers started fighting for legal recognition as caregivers and co-equal parents. These fathers—and their lawyers—had to confront stereotypes of unmarried fathers as shirkers at best, and predators at worst. As Mayeri shows, these fathers had mixed success in the courts, establishing some basic rights, as in Stanley v. Illinois, but not ultimately changing the dominant narrative about their role and worth.

In this chapter, Mayeri not only brings to life iconic cases but also shares lesser-known but no less compelling stories, such as Kirkpatrick v. Christian Homes of Abilene. The case, Mayeri recounts, involved a clash between fifteen-year-old Laura and twenty-two-year-old Donald over whether Laura could put their daughter up for adoption without Donald’s consent. Mayeri notes that the record supported sympathetic and unsympathetic renderings of Donald’s motivations. Regardless of his sincerity to be an active parent, the Texas courts gave him the back of the hand. This was consistent with earlier decisions by the Texas Supreme Court, which had been quick to reinforce the image of unmarried fathers as ne’er-do-wells. As that court held in a case a few years earlier, the state could rationally distinguish between a married father, who “has accepted the legal and moral commitment to the family,” and “a sperm donor, a rapist, a ‘hit and run’ lover, an adulterer and the like.” (p. 235, quoting the Texas Supreme Court).

Donald wanted the U.S. Supreme Court to review the Texas decision. Mayeri reveals the behind-the-scenes struggles among advocates wrestling with whether to take the case, given the conflicting interests of the parents. As she explains, this debate reflected a larger uncertainty about how to balance the interests of unmarried mothers and fathers. And she depicts the differing views among the justices considering the due process and equal protection claims that Donald brought to the Court. Mayeri emphasizes that although the Court remanded the case on a question of state law, the case reveals Justice White’s strong commitment to sex equality in parenting and his discomfort with “the sexual stereotype that women can be more trusted with children than men.” (p. 237, quoting Justice White).

Across decades of litigation of similar cases in the latter part of the twentieth century, the justices did not resolve this tension and instead proved only fainthearted supporters of the rights of unmarried fathers. And this, in turn, gave constitutional permission to the states to experiment with different levels of recognition for unmarried parents.

Today, unmarried men still have considerable difficulty connecting with their children. While scholarly commentators and popular media increasingly spotlight challenges facing men, especially those without college degrees, this growing discourse too often ignores a fundamental legal dilemma: men aren’t just disconnected from jobs and community—they’re also cut off from their children. Many men without college degrees do not live with their children. Unliked divorced fathers, unmarried fathers typically do not have a custody or visitation decree, and they see their children infrequently, if at all. Without a judicial order in place, it is left to mothers to decide whether a father has contact with his children. Some mothers block fathers’ access for understandable reasons, including a history of domestic violence, but this is not always the case.

When June Carbone and I studied this issue, we found a promising middle path between the conventional solutions offered by the right and the left. The right emphasizes strengthening fathers’ rights and promoting marriage but ignores why mothers often keep fathers at bay and overlooks the reality that mothers shoulder the vast majority of caregiving responsibilities. Conversely, the left is wary about recreating patriarchy but fails to recognize the many men, women, and children who want fathers more involved in family life.

We argue that the legal system can bring unmarried fathers into the lives of their children on terms acceptable to both parents. This means taking problems like intimate partner violence seriously. And it requires a mechanism to help parents work together. The answer is not to funnel unmarried couples into an overwhelmed and ineffective family court system but rather to develop nonjudicial options that help parents cooperate and address underlying issues.

Mayeri’s work informs this kind of scholarship by reminding us of the long arc of resistance to more egalitarian models of gender equality in parental rights. She underscores the stickiness in law of stereotypes that undermine what children, mothers, and fathers might really need. And her historical account helps us understand what is wrong today with cutting off unmarried fathers from their children.

Our legal system’s entrenched commitment to privileging marriage not only undermines the ability of fathers to bond with their children but also compounds racial inequality. As Mayeri shows, privileging marriage especially harms Black families, given the lower rate of marriage among Black parents. And a social welfare policy that relies on marriage promotion is misguided. Even if more Black parents married, this would not combat racial inequality.

On this point, it is useful to pair Mayeri’s historical account with the work of sociologist Christina Cross. In a forthcoming book, Inherited Inequality: Why Opportunity Gaps Persist between Black and White Youth Raised in Two-Parent Families (forthcoming 2025), Cross exposes the limits of marriage promotion to benefit Black children. Using longitudinal data on children from birth into young adulthood, Cross shows that growing up in a family with two married parents does benefit white children, but for Black children, the impact is far more muted. Cross’s findings underscore Mayeri’s critique of marital privilege. As Cross shows, the solution to racial inequality isn’t privileging marriage but rather confronting the structural forces that perpetuate racial disparities across generations.

Given our current politics, I am not optimistic that the United States will adopt effective strategies on this front anytime soon. But it is important to be clear-eyed about what it takes to combat inequality—especially racial inequality—if we want to make progress. The Nordic countries are not a family law paradise, and these countries have not had to grapple with our centuries-long history of racial discrimination. But Mayeri’s history is a timely reminder that the roots of inequality run deep and the solutions need to question a marital privilege that can seem all too natural.

Mayeri’s careful and compelling historical account lays the groundwork for these any many other scholarly and policy endeavors. She has enriched our conversation about how law shapes family life and inequality. Now we must rise to meet the challenge her work presents.

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Clare Huntington is the Barbara Aronstein Black Professor of Law at Columbia Law School. You can reach Prof. Huntington at ch104@columbia.edu.

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