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New research explores the history of “marriage supremacy”

March 14, 2016

Professor Serena Mayeri is currently working on a project that examines the history of challenges to marriage's primacy as a legal instit...
Professor Serena Mayeri is currently working on a project that examines the history of challenges to marriage’s primacy as a legal institution and a source of public and private benefits.
In a new article titled “Marital Supremacy and the Constitution of the Nonmarital Family,” Penn Law professor Serena Mayeri explores the history of marital supremacy — the legal privileging of marriage — by tracing the outcomes of “illegitimacy” cases through the 1960s and 1970s.

As the recent Supreme Court decision on same-sex marriage in Obergefell v. Hodges shows, marital status is still a touchstone in American society, even as the “marriage gap” between affluent and poor Americans continues to grow.

In a new article in the California Law Review titled “Marital Supremacy and the Constitution of the Nonmarital Family,” Penn Law professor Serena Mayeri explores the history of marital supremacy — the legal privileging of marriage — by tracing the outcomes of “illegitimacy” cases through the 1960s and 1970s. In her article, Mayeri shows that by focusing on the ways illegitimacy penalties harmed children, the courts neglected to address the issues of poverty, racial oppression, and subordination of women at play in these cases.

Mayeri is a Professor of Law and History and the author of the book Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Harvard University Press, 2011), which won the Littleton-Griswold Prize from the American Historical Association and the Darlene Clark Hine Award from the Organization of American Historians. Her scholarship focuses on the historical impact of progressive and conservative social movements on legal and constitutional change.

Her article is part of her current book project, tentatively titled The Status of Marriage: Marital Supremacy Challenged and Remade, 1960-2000, which examines the history of challenges to marriage’s primacy as a legal institution and a source of public and private benefits.

By the 1960s, Mayeri explains, some of the material disadvantages imposed on nonmarital children in law and public policy had been reformed, but those reforms were uneven and incomplete. Illegitimate children could still not inherit from their biological fathers or paternal relatives, receive government benefits to which legitimate children were entitled, sue for their parents’ wrongful death or workers’ compensation, or effectively enforce nonmarital fathers’ child support obligations.

Yet as rates of nonmarital childbearing climbed among young white women and poor women of color, Mayeri notes, many policymakers viewed illegitimacy as a pressing social problem — but they made a very clear racial distinction.

“Social work professionals reframed white middle-class unwed pregnancy as a problem of individual psychological maladjustment,” Mayeri writes, “but conventional wisdom held that among nonwhite women, particularly African Americans, nonmarital childbearing reflected deeper cultural disorder.”

Civil rights victories of the time, such as access to public assistance for unmarried African American mothers, were met by efforts to punish nonmarital childbirth, writes Mayeri, and these punitive anti-illegitimacy measures were understood to be part of the backlash against civil rights.

Although lawyers had avenues to argue against illegitimacy penalties through civil rights law, poverty law, and an emerging jurisprudence of sexual privacy, Mayeri explains, the “innocent child” argument was the primary one that ultimately swayed the Supreme Court — the idea that illegitimate children should not be punished for the “mistakes” for their parents.

Illinois law professor Harry Krause, who was a leading authority of illegitimacy at the time, realized that children’s innocence was a potent argument, though he had no intention of “challenging the normative assumptions underlying illegitimacy laws,” Mayeri writes. Krause’s application of the equal protection guarantee to illegitimacy-based distinctions in child support, inheritance, the right to recover under wrongful death and workers’ compensation statutes, and eligibility for benefits accrued through parental earnings and contributions allowed for those discriminatory practices to be challenged on constitutional grounds.

Meanwhile, feminists argued that illegitimacy penalties were as injurious to women as well as to children, writes Mayeri, because women usually shouldered primary responsibility for nonmarital children’s care and support. In cases involving employment bans on “unwed mothers,” requirements that mothers identify the fathers of their nonmarital children, laws that limited nonmarital fathers’ responsibility for child support or restricted illegitimate children’s inheritance rights, feminists argued that illegitimacy penalties discriminated on the basis of sex and race. But “[h]ardly a trace of this full-throated feminist attack on marital supremacy, sex inequality, and sexual repression appeared in the dozen-odd illegitimacy opinions issued by the Supreme Court in the 1970s.”

By the end of the 1970s, Mayeri writes, the child-focused view of the harm of illegitimacy had won the day with the notion that “[a]dults could be sanctioned for immorality, but innocent children should not suffer needlessly for their parents’ transgressions.”

The Supreme Court upheld the government’s interest in discouraging nonmarital sex, cohabitation or childbearing, and in encouraging marriage and legitimate family relationships. This jurisprudence also implied that sex, race, and illegitimacy were separate categories without overlap, and not deeply connected issues.

In the cases where plaintiffs prevailed, Mayeri notes, children’s lives were improved by the access to benefits previously unavailable to them. But the reasoning behind those decisions also mattered. “The illegitimacy cases reshaped, but did not vanquish, marital supremacy,” writes Mayeri. “By focusing on the blamelessness of children, these decisions not only obscured the constitutional harms of illegitimacy penalties’ detrimental impact on adults, but also ignored how these laws reinforced broader racial, sexual, and socioeconomic inequalities that impoverished entire families.”

The idiom of the “innocent child” remains today. Justice Anthony Kennedy showed concern that depriving same-sex couples of marital status “humiliates tens of thousands of children,” Mayeri argues, but the “innocent child” claim’s effectiveness comes at the cost of non-conforming adults’ equality, freedom, and dignity.

The plaintiffs who challenged illegitimacy penalties won significant victories, Mayeri writes, and the strategic decisions they made along the way are understandable. But how marriage equality becomes part of the constitutional culture will determine “whether same-sex couples’ access to marriage is the latest chapter in the history of marital supremacy or the opening salvo in a renewed battle for racial, sexual, and economic justice.”