Understanding the Roots of Today’s Marital Inequality
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.
____________
Clare Huntington is the Barbara
Aronstein Black Professor of Law at Columbia Law School. You can reach Prof.
Huntington at ch104@columbia.edu.