Formal Victories and Roads Not Taken: Excavating Departures and Throughlines in Challenges to the Place of Marriage

Authors

• Linda C. McClain, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2025

Publisher

Boston University School of Law

Language

en-US

Abstract

A decade after Obergefell, Professor Mayeri’s fascinating and meticulously detailed new book, Marital Privilege: Marriage, Inequality, and the Transformation of American Law, tells the stories of “marriage’s challengers,”from the 1960s to the beginning of the twenty-first century.¹⁶ Along with the stories of some “well-known” lawyers, advocates, and scholars, Mayeri also “rescu[es]” the stories of now “obscure” Americans who “pushed marital boundaries” to protect their parental rights, their careers, or their “freedom to make decisions about their bodies and families.”¹⁷ Such rescue allows readers to “see change as a bottom-up as well as a top-down process.”¹⁸ Mayeri explains that “[p]eople of color—from influential lawyers and national figures to community activists and litigants—often pioneered claims for equality and justice regardless of family status.”¹⁹ Notably, these challenges also “advanced what Black feminists later named reproductive justice: the right to bodily autonomy, to have children or not, and to raise families in thriving homes and communities with government support rather than surveillance.”

Mayeri uses the term “marital supremacy” to describe how the extensive body of “marital status law” prevalent in the “mid-[20th] century legal regime” treated marriage “as a largely unquestioned bulwark of American public policy, a moral and religious imperative imprinted in stark, formal terms on the face of the law.”²¹ Marital status had an impact on “everything from the lawfulness of sexual intimacy and childbearing to eligibility to the custody of children,” to one’s employment.²² By the early twenty-first century, Mayeri argues, “marital supremacy” had given way to what she calls “marital privilege.” On the one hand, “[p]rinciples of equality, privacy, and due process cleansed the law of the most overt discrimination against women, people of color, and children born outside of marriage,” softening the “sharp edges of marital status law.”²³ On the other, marriage was still the source of “public and private benefits unavailable to the unmarried;” and, as “marital status correlated more than ever with race, class, and education,” the “advantages of marital privilege” were enjoyed mostly by “those who needed them least.”

Mayeri’s book is an impressive achievement. It is bound to become an essential reference for legal scholars across many fields, students of social movements, and activists seeking inspiration. Like Mayeri’s award-winning first book, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, ²⁵ Marital Privilege makes the past vividly present not only through engaging portraits of the people asserting claims to liberty and equality, but also through painstaking and careful reconstruction of the cultural, legal, and political landscape against which people asserted such claims. In addition, just as Reasoning from Race valuably foregrounded the crucial role played by Black civil rights activist and feminist Pauli Murray, Marital Privilege highlights how some of the most “intrepid” challengers to marital supremacy were Black women.²⁶ I will highlight a few aspects of this significant book that are particularly pertinent to me as a family law scholar and teacher, a casebook coauthor, and a gender and law scholar.

Recommended Citation

Linda C. McClain, Formal Victories and Roads Not Taken: Excavating Departures and Throughlines in Challenges to the Place of Marriage , 105 Boston University Law Review Online 69 (2025).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4247