Linda C. McClain (Boston University – School of Law), 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), on SSRN. Here is the abstract:
This review essay engages with Professor Mayeri’s fascinating new book, Marital Privilege: Marriage, Inequality, and the Transformation of American Law, which tells the stories of “marriage’s challengers” from the 1960s to the beginning of the 21st century. Marital Privilege traces the shift from “marital supremacy”—how “marital status law” of the mid-20th century treated marriage as a “bulwark” of American law and public policy—to “marital privilege”—a new status quo that shed the most overt forms of discrimination against women, people of color, and children born outside of marriage, but retained marriage as the source of extensive public and private benefits unavailable to the unmarried. Mayeri’s book retrieves the stories of less-well known Americans—particularly, people of color—who fought marital supremacy by advancing claims for equality and justice (including reproductive justice) regardless of family status to protect their parental rights, their careers, or decisional autonomy. This essay highlights two contributions. First, Marital Privilege powerfully illustrates that reading a judicial opinion, even a canonical one, does not give us the full story. Mayeri offers a rich trove of arguments voiced by the people affected by marital status laws and arguments and strategies debated by their lawyers and amici, including robust readings (mostly rejected by courts) of the Supreme Court’s mid-twentieth century right of privacy decisions, Griswold v. Connecticut and Eisenstadt v. Baird. Second, Marital Privilege traces an illuminating through line from the welfare rights and “illegitimacy” cases to a wide range of marital status discrimination cases in other contexts that also challenged reliance on moral judgments about women’s nonmarital sexual activity. Similar judgments about “immorality” motivated discriminatory treatment of gay men and lesbians. Mayeri persuasively argues that understanding these past challenges helps to situate how Dobbs v. Jackson Women’s Health Organization and resistance to Dobbs reflect both continuity and change.
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