Marriage Equality and The “New” Maternalism

Marriage Equality and The “New” Maternalism


The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist philosophy wherein a woman’s perceived natural and limited role is as an all-sacrificing mother virtually inseparable from her children. Justice Kennedy’s description of one female plaintiff couple speaks volumes: “April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.”

This Essay explores the maternalism infusing the Obergefell opinion and argues that it expresses a traditional view of women’s place in the family and in the public sphere. Maternalism brings dual harms of limiting all women’s roles while ignoring the many women, particularly low-income women and women of color, who do not fit the ideal mother paradigm. Obergefell‘s focus on the female plaintiffs’ maternity, in contrast to its description of the male plaintiffs’ occupations, mirrors the nineteenth century concept of separate spheres; women are guardians of the private home sphere while men dominate the public professional and civic sphere. Despite deciding against opponents of same-sex marriage, the opinion thus inadvertently endorses their gendered parenting arguments. Indeed, this Essay draws parallels between Justice Kennedy’s praise for the ideal motherhood of the plaintiffs and his prior opinion restricting access to abortion in Gonzales v. Carhart. To be clear, this critique is not meant to suggest that Obergefell should have come out differently, or that its holding is as harmful as Carhart‘s. Nonetheless, even the well-intended reification of motherhood brings costs. The ongoing gendered stereotypes embedded in Obergefell reinscribe essentialist gender roles in the family and polity, ultimately limiting marriage equality’s egalitarian power.

Recommended Citation: Marriage Equality and The “New” Maternalism, 6 Calif. Law Rev. Circuit 145 (Nov 2015),

More From California Law Review Online

Eyes Wide Shut: Using Accreditation Regulation to Address the “Pass-the-Harasser” Problem in Higher Education

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when […]

A Pathway to Health Care Citizenship for DACA Beneficiaries

Since 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other […]

The Discounted Labor of BIPOC Students & Faculty

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, […]

#BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law Racial Justice for Street Vendors     Introduction […]