Legal historian traces history of ‘marital privilege’ in American law

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While the right to marry has expanded during the last few decades, marriage remains an institution of privilege “legally, socially, and economically,” says Penn legal historian Serena Mayeri.

Her new book, “Marital Privilege: Marriage, Inequality, and the Transformation of American Law,” is a sweeping national history of how advocates challenged laws that reward marriage and penalize the unmarried.

Mayeri, the Arlin M. Adams Professor of Constitutional Law at Penn Carey Law and professor of history, is a historian of movements for legal and constitutional change. Her past work includes a prize-winning book, “Reasoning from Race: Feminism, Law, and the Civil Rights Revolution,” as well as articles on reproductive rights and the uses of history in constitutional interpretation.

Mayeri’s new book traces a transition from “marital supremacy” to “marital privilege.” The story begins in the mid-20th century, when the New Deal welfare state channeled government benefits to households headed by male breadwinners and female homemakers. 

She recounts how many states made it illegal for couples to live together or have sex outside of marriage. Women who became pregnant while unmarried often were fired from their jobs and lost public benefits such as cash assistance and housing. Children born outside of marriage faced discrimination in everything from Social Security to inheritances, while legislators proposed fines, jail, or sterilization for their parents. Opponents of racial desegregation often used marital status laws as a weapon to punish impoverished people of color. 

Creative arguments

As movements for civil rights and civil liberties, economic rights, and women’s liberation gained steam in the 1960s and 1970s, advocates used constitutional principles such as equal protection and due process to argue for change. 

“They made creative and innovative arguments about racial and economic justice and about reproductive and sexual liberty and autonomy and equality,” Mayeri says. “They advocated in federal court and also in Congress, state legislatures, state courts, and municipalities for the rights of those who couldn’t—or didn’t wish to—marry.”

American family life underwent a transformation during the same period. Marriage rates declined, and no-fault laws made divorce easier and more common. Births outside of marriage rose, from about 5% in 1960 to approximately 40% today.

Unlike the NAACP Legal Defense Fund’s litigation campaign against racial discrimination, there was no cohesive movement against marital supremacy. While some advocates worked to “undermine the centrality of marital status, many did so as a collateral consequence of their advocacy for other causes,” Mayeri says, such as struggles against poverty, racial injustice, and sex discrimination. Single mothers and fathers, gay parents, feminists, and unmarried couples fought on fronts including not just family law but also military service, local zoning laws, immigration and citizenship, and public welfare benefits.

Mixed results

Mayeri identified patterns in how courts responded to these efforts. Advocates for change, she says, “succeeded in making the law of marriage and divorce formally race- and sex-neutral—abolishing laws against interracial marriage, turning husbands and wives into spouses with the same formal rights and duties, and so forth.” 

Judges and juries “often were sympathetic when they saw the victims of marital supremacy as innocent children punished for their parents’ ‘sins,’” Mayeri says. “They were also receptive to arguments about race and sex discrimination, such as when Black but not white teachers were fired for being pregnant and unmarried, or when the law presumed that husbands would be breadwinners and wives would be homemakers and caregivers.” 

Yet courts preserved the government’s prerogative to promote marriage and declined to view discrimination based on marital status as a constitutional problem. “The law made marriage matter less mostly when doing so saved the government money,” Mayeri says, for example, imposing child support obligations on parents regardless of marital status. 

Functional definitions of family allowed more nonmarital families to be legally recognized but also could have down sides. “When courts or other government entities decide who looks enough like a family to count as legal relatives, that’s its own form of intrusion and regulation,” Mayeri says.

The legalization of same-sex marriage in 2015 by the U.S. Supreme Court in Obergefell v. Hodges was the culmination of many of the trends that Mayeri identifies. “Giving people the ability to marry regardless of sex unsettles traditional assumptions in ways that those who value greater freedom to choose different life paths rightly celebrate,” she says. “Marriage equality also symbolizes the persistence of marriage as a key source of public and private benefits that many of us take for granted.”

Lack of protections

Today, “marriage itself has become formally equal: Spouses and married or divorced parents now have the same rights and obligations regardless of sex,” Mayeri says. But gender roles persist, and unmarried parents and partners lack many of the legal protections their married counterparts enjoy. “Nonmarital partners are often left with nothing after the dissolution of a relationship,” Mayeri says.

Moreover, thousands of state and federal benefits remain linked to marriage. Federal legislation such as the Family and Medical Leave Act as well as welfare and immigration reforms passed in the 1990s intensified marital privilege. “Because marriage is now so correlated with race, class, and education, the legal privileging of marriage works to the detriment of people of color and low-income Americans disproportionately,” Mayeri says.