Last January on this blog, Elizabeth Popp Berman asked, “In this brave new world, does scholarship still matter?” Over the past year, her question has never been far from my mind. This moment of phase shift—in which it is unclear if the recent past remains a useful guide to the present—has led Berman to zoom out and look back to macro structures of corporate capitalism in the late nineteenth century. My own response mostly has been to write about the present, a luxury I am grateful to have as a legal scholar with tenure. But in July, I also published a work of history, a book about challenges to the legal primacy of marriage in the late twentieth-century U.S. Over its long gestation, the stakes of narrating this history, and of historical inquiry itself, changed dramatically.
I began the book in a different world, the heyday of the Obama administration. With marriage equality on the horizon, I wondered how the sharp critiques of late-1960s feminists and gay liberationists gave way to the early twenty-first-century reality in which college-educated professional women had become the most likely to marry and many gay rights advocates touted marriage’s myriad legal and social benefits in an effort to extend rather than abolish them.
The story that emerged is one of preservation-through-transformation, with a twist. In 1960, marriage rates reached an all-time high and a legal regime of marital supremacy intertwined with white and male supremacy to reinforce gender roles within marriage and to punish sexuality outside of it. The remnants of coverture and a New Deal welfare state that channeled government benefits through marriage rewarded households headed by male breadwinners and economically dependent female homemakers and caregivers. Marital status determined the lawfulness of intimacy, pregnancy, and childbearing; many laws overtly discriminated against nonmarital children and their parents; and states outlawed abortion and sometimes even contraception. The Supreme Court declared in 1961 that women’s place “at the center of home and family life” justified denying equality in jury service.
Over the following decades, advocates attacked marital supremacy with creative and expansive constitutional arguments about racial and economic justice, reproductive and sexual autonomy, privacy, liberty, and equality. They succeeded in making marriage internally egalitarian as a matter of formal law, though not social reality, and in removing the most egregious discrimination against nonmarital children. But they did not unseat marriage as a primary source of public and private benefits. Adults who lived outside of marriage largely did not benefit even from formal gender equality. As marriage increasingly correlated with education, race, and socioeconomic status, its expanding array of benefits—in everything from social insurance to immigration to employment to family law—accrued disproportionately to those least in need of them. What emerged by the turn of the century was a new legal regime of marital privilege, bolstered by federal legislation from the 1993 Family and Medical Leave Act to the 1996 welfare reform. Dissenters continued to offer powerful critiques of marital primacy, but the rise of marriage equality confirmed its resilience.
The emergence of the LPE movement coincided with the book’s gestation and informed its arguments at both the macro and micro levels. Marital Privilege chronicles the rise of functional standards and definitions of family: formal categories such as sex, biology, and especially marital status came to matter less—but mostly where a functional turn privatized dependency in the family, obviating the need for state support. Rather than categorically placing jobs or child custody or public housing off limits to those who departed from marital heterosexuality, individuals would be judged based on whether deviance from these norms detracted from their ability to perform their jobs, parent and financially support their children, or be responsible tenants. Fathers could “legitimate” their children—or have support obligations imposed upon them—regardless of marital status. Single mothers won protection from some forms of employment discrimination, but not a constitutional shield against mandatory disclosure of their children’s paternity or the right to enlist in the armed forces and call upon the expanding provisions of the military welfare state. Functional definitions and standards afforded discretion to courts, administrators, and other legal decisionmakers, who often smuggled back in the same moral judgments and emphasis on privatized dependency that underpinned formal categories and exclusions.
The twist is that unlike other instances of preservation-through-transformation—think racial segregation or domestic violence—no normative consensus about the wrongfulness of marital primacy ever developed. Challenges to the privatization of social reproduction and the dominance of the heteronormative family failed to gain purchase. It is a lost-promise narrative—radical hopes foundered on the shoals of a neoliberal system that relied on the private welfare state of the family. Law modernized in ways that blunted critiques of marriage and enabled the state to outsource care and support to families regardless of marital status.
As a draft of the full manuscript came together in 2022, Dobbs called into question much of the jurisprudence taken for granted a decade earlier. Decisions whose seductive promise and ultimate shortcomings filled its pages—Griswold, Eisenstadt, Roe, Lawrence, Obergefell—now themselves were in jeopardy.
Final substantive edits were due one week before the 2024 election. The book’s epilogue closed on an ominous note with Department of State v. Muñoz: Cecilia Muñoz lacked any constitutional entitlement to know the reason her husband, Luis Ascencio Cordero, was denied re-entry into the U.S. after he returned to his native El Salvador to complete the naturalization process—casting a shadow over the right to marry itself. Yet it still seemed possible that Dobbs’s silver lining might be an electoral victory that would pull us back from the precipice.
It did not. Now, the country is almost unrecognizable even to those of us who expected the worst. As Berman wrote a year ago, believing “that the decades that set us down this path still matter” is a “bigger gamble than betting that the events of the 1970s and 80s were still relevant to 2022.”
What meaning can we derive from a history like Marital Privilege in our present moment? It’s a question I’ve struggled with throughout a year in which every month featured a decade’s worth of horror. One answer is that recovering histories of oppression and resistance is itself a response to the campaign to erase past injustices toward and achievements of marginalized groups. As executive orders condemn “woke” indoctrination and the President complains about negative depictions of slavery, the government scrubs historical reality from museums, websites, libraries, and school curricula.
Nostalgia for an idealized past—including 1950s patriarchy (and, implicitly, racial hierarchy)—long has suffused American conservatism. Project 2025 called for “a biblically based, social science-reinforced definition of marriage and family” comprised of a “married mother, father, and their children,” a Christian nationalist gloss on the heterosexual marital norms that my book’s protagonists challenged. The mid-twentieth-century regime of marital supremacy provides stark reminders of what a return to this vision of family could entail in practice: women trapped in abusive or starkly unequal marriages; fines, incarceration, and family separation for poor women who had nonmarital children; criminalization of nonmarital sex and childbearing; unchecked discrimination in housing, employment, and child custody against individuals who were gay or became pregnant or lived with partners outside of marriage. As one dissenting staffer reportedly said in response to the Heritage Foundation’s call for a “Manhattan Project to restore the nuclear family”: “I don’t want to go back fifty years.”
This history also underscores continuities. Heritage asks the government to “Start Supporting Married Families” as if it has not done just that since at least the New Deal era. (And indeed the group’s recently released special report on marriage and the family acknowledges the many legal benefits associated with marriage.) A persistent theme in Marital Privilege is how advocates have been most successful in challenging marital status laws as punishing innocent children for the sins of their parents and how often sexual repression and discrimination against adults is justified in terms of protecting young people. Today the right’s persecution of LGBTQ+ and especially transgender Americans follows a similar playbook. Moreover, child removal from the homes of poor families of color, denial of reproductive and other health care to low-income communities, and the limitations of formal race and sex equality have long been features of American life.
History can also illuminate roads not taken in a time when destruction creates opportunities to rethink old assumptions. The single parents of color who fought for what Black feminists later named reproductive justice constructed alternative visions of social reproduction and the political economy of the family: community support rather than punitive surveillance; access to economic independence and mobility through a universal basic income; state-supported care for children, including by extended and chosen family, in lieu of child removal; protection from sterilization abuse and support for reproductive and other health care. Marital Privilege also chronicles how, in a period of federal retrenchment, states and localities experimented with more expansive definitions of family—a potential model for our present.
While downsizing government, turning civil rights laws against their intended beneficiaries, appointing conservative judges, and promoting robust theories of executive authority are nothing new, the second Trump administration is not just the next installment of the Reagan revolution. The administration’s brazen disregard for legal processes; aggrandizement of unchecked executive power; ransacking of the federal government; terrorization of immigrants, non-citizens, and communities of color; attacks on universities, law firms, non-profits, and knowledge institutions generally; campaign of vengeance against political opponents; assault on freedoms of expression and association; and openly vitriolic racism, misogyny, xenophobia, and anti-trans animus signal a genuine rupture in the governing framework. The federal government now threatens those who advocate “extremism on migration, race, and gender” or who harbor “hostility towards those who hold traditional American views on family, religion, and morality”— including in “educational institutions”—with investigation and prosecution for “domestic terrorism.” Scholars and educators, even university professors with tenure, have lost their jobs for dissenting from the new orthodoxy. The administration engages in plainly unconstitutional coercion to elicit anticipatory overcompliance and exert ongoing control over higher education.
The (important, yet partial) victories that twentieth-century challengers of marital supremacy achieved rested on their ability to oppose unjust laws without fear of government reprisal. To recover their accomplishments and disappointments requires the liberty to study, teach, write, and speak freely about the messy, ugly, complicated, and inspiring history of what was once the world’s leading democracy. The parents, partners, teachers, students, activists, and lawyers who struggled for a more just future often did so at great institutional and personal risk. We can learn from them the courage to do the same. At stake is nothing less than whether our present era is an interruption in a long arc of history bending toward justice—or the half-century bookended by the civil rights revolution and marriage equality was instead the interlude, in a much grimmer historical story.
