Marital Supremacy and the Constitution of the Nonmarital Family

Marital Supremacy and the Constitution of the Nonmarital Family



Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy””the legal privileging of marriage””through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their parents. By reaffirming the legitimacy of governmental objectives such as discouraging illicit sex and promoting traditional marriage, courts obscured the ways in which marital supremacy injured adults as well as children, reinforcing racial, gender, and economic inequality and circumscribing sexual and reproductive freedom.

Using court documents and archival sources, this Essay uncovers alternative visions of the harm of illegitimacy penalties offered by advocates and activists who framed these laws and practices as centrally connected to poverty, systemic racial oppression, and the subordination of women. Civil rights and poverty lawyers spotlighted the disparate impact of illegitimacy penalties on poor families of color, especially African Americans in the South. Feminists emphasized how these laws disproportionately burdened women””who often bore primary responsibility for nonmarital children’s care and support””curtailing their sexual, reproductive, and economic freedom. The failure of these broader accounts of the harms of illegitimacy penalties to influence judicial opinions impoverished our constitutional politics in ways that reverberate today. In a world where marriage is both a privileged status and a status of the privileged, marriage equality that rests upon non-marriage’s ignominy risks reinforcing the many other status inequalities that taint the legacy of marital supremacy.

PDF

More in this Issue

Toxic Spring: The Capriciousness of Cost-Benefit Analysis Under FIFRA’s Pesticide Registration Process and Its Effect on Farmworkers

Under the Federal Insecticide, Fungicide, and Rodenticide Act, the Environmental Protection Agency (EPA) must conduct a cost-benefit analysis to ascertain whether a pesticide may be sold on the market. This analysis weighs the benefits of using the pesticide against the costs imposed by the pesticide’s negative effects, such as health consequences for farmworkers, wild life, […]

Recovery and Preemption: The Collision of the Medicare Secondary Payer Act and the Medical Device Amendments

Congress often uses its power to preempt state laws when a uniform nationwide regulatory environment is desirable. Unfortunately, preemption may have unintended, far-reaching effects. When Congress enacted the Medical Device Amendments of 1976 (“MDA”), it included an express preemption clause to ensure that only the Food and Drug Administration (“FDA”) could establish ex ante, premarket […]

Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor

Most commentators on sex markets focus on the debate between abolitionists and those who defend and support professional sex work. This Article, instead, looks at debates within the pro-sex-work camp, uncovering some unattended tensions and contradictions. Some within this camp stress the labor aspect, urging that sex markets perpetuate a “vulnerable population” of workers and […]

Stare Decisis in the Second-Best World

If judges disagree about the proper interpretation of the law, can they find common ground in the treatment of precedent? The doctrine of stare decisis weighs the value of legal continuity against the value of legal accuracy. But that analysis is complicated by pervasive disputes over the implications of legal error. Likewise, the scope of […]

Waiving Disqualification: When Do Securities Violators Receive a Reprieve?

In addition to considerable sanctions, criminal and civil securities enforcement actions trigger an array of collateral consequences. This Article studies automatic “bad-actor” and “ineligible-issuer” disqualifications, which bar disqualified firms from relying on relaxed disclosure and reporting requirements when raising external capital. First adopted in 1940, the disqualifications were primarily intended to reduce the risk of […]