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Marital Supremacy and the Constitution of the Nonmarital Family

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Marital Supremacy and the Constitution of the Nonmarital Family University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2015 Marital Supremacy and the Constitution of the Nonmarital Family Serena Mayeri University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Courts Commons, Family Law Commons, Family, Life Course, and Society Commons, Gender and Sexuality Commons, Inequality and Stratification Commons, Juvenile Law Commons, Law and Gender Commons, Law and Race Commons, Law and Society Commons, Legal History Commons, Policy History, Theory, and Methods Commons, Public Law and Legal Theory Commons, Race and Ethnicity Commons, Social and Cultural Anthropology Commons, Social Control, Law, Crime, and Deviance Commons, and the Social Policy Commons Repository Citation Mayeri, Serena, "Marital Supremacy and the Constitution of the Nonmarital Family" (2015). Faculty Scholarship at Penn Law. 1593. https://scholarship.law.upenn.edu/faculty_scholarship/1593 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. Marital Supremacy and the Constitution of the Nonmarital Family Serena Mayeri* 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 Copyright © 2015 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Professor of Law and History, University of Pennsylvania Law School. I am grateful to Gregory Ablavsky, Regina Austin, Susanna Blumenthal, Michael Boucai, Tomiko Brown-Nagin, Kristin Collins, Nancy F. Cott, Rebecca L. Davis, Deborah Dinner, Justin Driver, Ariela Dubler, Katie Eyer, Anne Fleming, Smita Ghosh, Linda Gordon, Sarah Barringer Gordon, Michael Grossberg, Joanna Grossman, Rachel Guberman, Courtney Joslin, Felicia Kornbluh, Michael Klarman, Seth Kreimer, Regina Kunzel, Sophia Z. Lee, Solangel Maldonado, Harriet Mayeri, Sara Mayeux, Mary Mitchell, Melissa Murray, Douglas NeJaime, Nancy Polikoff, Dorothy Roberts, Rebecca A. Rix, Rebecca Roiphe, Kermit Roosevelt, Reva Siegel, Justin Simard, Edward Stein, Stephen Sugarman, Karen Tani, Rose Cuison Villazor, Laura Weinrib, Barbara Welke, Deborah Widiss, Tobias Wolff, Noah Zatz, and Mary Ziegler for helpful comments and conversations. Earlier drafts of various parts of this project also benefited from feedback offered in faculty workshops and conference panels by generous participants too numerous to name. For valuable assistance in gathering sources, thanks are due to Alvin Dong, Christy D’Antonio, Edwin Greenlee and the staff of the Biddle Law Library, John Jacob of the Powell Archives at Washington and Lee School of Law, Patrick Kerwin of the Library of Congress, Meagan Buckley, Breanna Forni, Zachary Frazier, Sophie Chen Jin, Emily Prifogle, Sennett Rockers, Caitlin Verboon, Thomas Wheeler, and Yiyang Wu. Special thanks to Ann Freedman, Charles Victor McTeer, David Rudovsky, John Henry Schlegel, Jane Greengold Stevens, James Weill, and the late Rhonda Copelon for sharing their recollections, to Smita Ghosh for research assistance, and to the staff of the California Law Review for editorial expertise. 1277 1278 CALIFORNIA LAW REVIEW [Vol. 5:1277 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. Introduction .................................................................................................. 1279 I. “Hapless and Innocent Children”: The Early Illegitimacy Litigation, 1966–1972 ......................................................................................... 1284 A. “Designed to Deprive a Single Class of Citizens”: Early Constitutional Arguments .......................................................... 1286 B. “Subject to Reexamination”: Levy and Glona ........................... 1290 C. “I Told Her It Was None of Her Business”: King v. Smith ........ 1297 D. “Illicit and Beyond the Recognition of the Law”: Labine v. Vincent ....................................................................................... 1300 E. “No Child Is Responsible for His Birth”: Weber v. Aetna Casualty ..................................................................................... 1305 II. “An Independent Justification for the Abolition of Illegitimacy”: The Rise and Fall of Feminist Arguments, 1972–1979 ............................ 1310 A. “Designed to Subordinate Females”: Feminist Arguments Against Illegitimacy Penalties ................................................... 1313 B. “Promoting Equality Between Illegitimate and Legitimate Children”: The Social Security Cases ........................................ 1323 C. “The Risks All Seem to Be on Her Side”: Failure in the Supreme Court ………………………………….. .................... 1325 1. Weber Redux, 1973–1977.................................................... 1326 2. Making “the Most of a Bad Case”: Fiallo v. Bell and Lalli v. Lalli, 1977–1978 .............................................................. 1327 3. “Neither Illogical Nor Unjust”: Parham v. Hughes, 1979 ... 1333 2015] THE NONMARITAL FAMILY 1279 4. “High Court Rules Against Unwed Mothers”: Califano v. Boles, 1979 .......................................................................... 1335 III. Illegitimacy, Inequality, and the Legacies of Marital Supremacy .......... 1340 Conclusion .................................................................................................... 1351 INTRODUCTION Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits the law confers on married couples, from parental rights to immigration preferences to tax breaks and public entitlements.1 Marital supremacy2—the legal privileging of marriage—endures, despite soaring rates of nonmarital childbearing and a widening “marriage gap” that divides Americans by race, wealth, and education.3 The stakes of marital supremacy are higher than ever as marriage becomes the province of the privileged. Yet marital supremacy has a contested history. This Essay explores the surprisingly neglected story of constitutional challenges to “illegitimacy”-based classifications,4 and to other “illegitimacy penalties,”5 in the 1960s and 1970s. During this period, the Supreme Court began to apply heightened scrutiny to laws that discriminated against “illegitimate” children in areas such as wrongful death recovery, workers’ compensation, child support, inheritance, 1. On the long history of marriage’s public significance, see NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000). 2. In this Essay, I use the term “marital supremacy” to refer broadly to the legal privileging of marriage over non-marriage, and marital over nonmarital families. For other uses of the term, see, for example, ELIZABETH FREEMAN, THE WEDDING COMPLEX: FORMS OF BELONGING IN MODERN AMERICAN CULTURE (2002); ELIZABETH H. PLECK, NOT JUST ROOMMATES: COHABITATION AFTER THE SEXUAL REVOLUTION (2012); Serena Mayeri, The Status of Marriage: Marital Supremacy Challenged and Remade, 1960–2000 (unpublished manuscript) (on file with author). 3. See, e.g., JUNE CARBONE & NAOMI CAHN, MARRIAGE MARKETS: HOW INEQUALITY IS REMAKING THE AMERICAN FAMILY
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