Marital Privilege

How the privileged legal status of marriage survived decades of constitutional struggle and social change

The United States is unusual among wealthy western nations in the degree to which the law channels public benefits and private economic resources through marriage. This remains so despite seismic changes in American family life in the last several decades of the twentieth century. During this period, marriage rates declined while divorce and nonmarital childbearing soared. Social movements—for racial and economic justice, women’s and gay rights and liberation, civil liberties, and reproductive freedom—transformed the legal landscape.

In Marital Privilege, Serena Mayeri tells the stories of parents and partners and activists and lawyers who challenged the legal primacy of marriage. They made innovative constitutional claims in courts and launched grassroots efforts to change laws and practices that penalized nonmarital relationships. But even though reforms eliminated the most visible discrimination against women, people of color, and children born to unmarried parents—and, eventually, against gay and lesbian Americans—marriage’s privileged status endured. Because marriage increasingly correlated with education and wealth, marital primacy intensified racial and economic inequality. Marital Privilege explains how, as American law selectively incorporated principles of liberty and equality, the benefits of marriage became increasingly unavailable to those who needed them most.

Serena Mayeri is Arlin M. Adams Professor of Constitutional Law and Professor of History (by courtesy) at the University of Pennsylvania Carey Law School. She is the author of numerous articles and a prizewinning book, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution.