NYU Marriage Is a Legal and Social Contract Discussion Responses

  

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reply to two student’s posts:1. Marriage is the legally or formally recognized union of two people as partners in a personal relationship (historically and in some jurisdictions specifically a union between a man and a woman). In recent times I believe the value of marriage has definitely increased. According to The World Historical Transformation of Marriage, it says, “But when we look at the larger picture, it is clear that the social role and mutual relationship of marriage, divorce, and singlehood in the contemporary world is qualitatively different from anything to be found in the past” (Coontz, 974). Marriage is a sacred ritual that many individuals look to. Marriage is a sign of stability and the beginning of the last chapter of person’s life possibly. Many believe that marriage is for union of two people generally of opposite genders and to bear kids to fulfill one’s life calling. What changes now and days is that not only 2 different genders can get married, but people that are have decided on wanting each other’s companionship can get married. In Japan, a man marries his animated favorite character as he believed that he wanted to spent the rest of his life with her. With such diversity being established in marriages it is safe to say that marriage in different communities and groups are a strong contributor. To start, there can be different meanings of marriage between women and men. For example, it can be said that men find structure, ambition, and ends uncontrollable longing and desires with marriage. For women, marriage can mean many things just like being able to be be with the one they truly love or fulfill a perfect wedding that has been ingrained into them since childhood. Obviously, everything that is mentioned is not concrete and are just a drop of water in and ocean of reasons why marriage can differ for genders. In different cultures marriage can mean alot of things. One prime example is that indigenous people would sometimes force a marriage to gain more combat power or join groups. In normal society, its just a union between 2 people. In past society, the notion was that 2 people of the same gender could not marry. According to, Obergefell’s Conservatism: Reifying Familial Fronts, its say, ” We understand your views on marriage, but equality principles require opening marriage to same-sex couple” (Huntington, 28). Recently, idea on gay marriage is much more transformative and less conservative. Same sex marriage is finally a thing that can happen. From what was preconceived in the past I believe has be changed from this week’s readings by showing potential changes that can occur in our marriage system. When discussing power in marriage it can mean many things. One example can be who has more power the between the two that are married. Using the example of a male and female in marriage the supposedly right answer who has more power is neither it should be neither its the same. However, sometimes that is not the case and one is sometimes more power hungry then the other. This can apply to any other marriages as well. There is also the idea of marrying for power, which can be like marrying into money or gain an advantage like combining tribes off a marriage. Marriage and power can be quite complex, but generally with marriage there will be an increase of power for both sides. Some expectations for my marriage is that my significant other has at least a job and so do I and we can support things we need. Hopefully be peaceful marriage and both people love each other very much. Parent just want grandchildren to be honest.2.What is Marriage for?In simple terms, marriage refers to a union of individual people (Coontz 2004, 974). Marriage is a legal and social contract that provides a partner with someone to depend on and offers extensive intimacy and emotional security. Since ancient days, marriage has been regarded as a contract for family engagements and economic reasons. However, the definition of marriage has evolved to be a union of individuals who love one another and promise to live the rest of their lives together. There are various marriages where every marriage serves its purpose of balancing life and love (Coontz 2004, 975). How Do Ideas and Practices of Marriage Differ for Various People, Groups, or Cultures?Marriages vary based on culture. Marriage practices are different in different places. Culture significantly influences how an individual perceives a marriage and what they expect from marriage and family (Huntington 2015, 24). For instance, in cultures with clearly divided gender roles and responsibilities, husbands and wives have different roles. In addition, different cultures have varying norms and values regarding marriages. Consequently, individuals from different backgrounds may have different values, which may be a massive obstacle to their union. The Relationship Between Marriage and Power?Marital power refers to the ability of one partner to control their partner without or with resistance. In history, men have had all the power in marriages. Men used marriage as an avenue to assert, reproduce, and even pass their power (Traister 2018, 192). However, with time the above has changed. In most cases today, power in marriage results from the level of contribution of resources such as education, occupational status, and income to the union. The partner with higher contribution gains greater power in decision making. Preconceived Notions of Marriage and Love?For a long time, I have believed that people marry for love. I thought that people marry because they have fallen in love and want to start families and spend the rest of their lives together. However, the above belief has been challenged by the readings this week. I now understand that people marry for different reasons. Love is one reason why people marry, but numerous other reasons exist. For instance, people marry for convenience and even safety. Generally, I have learned that marriage depends on what a partner wants from the other person. Expectations for Marriage?I hope to marry for love and not convenience. I expect to fall in love with someone and be willing to spend the rest of my life with them. In addition, I hope we can share power in our marriage regardless of who brings more resources into the relationship. The above is because marriages with shared power are more likely to thrive than those where one partner has more power over the other (Traister 2018, 207). My parents, too, expect me to marry for love, and they always encourage me to make sure whomever I settle with is the right person for me. They hope I will give them grandchildren. However, children are not a priority for me since I believe they are a gift and should not determine the success or failure of a marriage.be sure to make intext citations from the readings in the pdfs. and be sure to look the pdf for instructions

Writing Forum Posts and Responses
When You Are Starting a New Thread or Making the First Post
Read the Directions Carefully
Your instructors usually outline their expectations for forum and discussion board posts in the
syllabus. Make sure to read their rules for posting. Some instructors may have specific word
count expectations, or require certain things. Every instructor and every course is different, so
make sure you understand what you’re supposed to be writing in your discussion post.
Don’t Be Afraid to Ask Questions
You can always email your instructor to ask for more details about discussion board
assignments. It may feel intimidating, but reaching out is the best thing to do if you’re unsure of
how to respond to a topic question or instructor-led discussion. Your instructor is there to help
you grow.
Actually Say Something
To get the most out of your online discussion board posts, you need to actually have a
conversation. When you’re posting, think about what you’re saying: why do you think this way?
Using sources like your textbooks or even a journal article can boost your credibility and
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Don’t Procrastinate
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your online experience.
Review and Proofread Your Post
Before hitting “submit” or “create thread,” read over your post at least once. Make sure you’re
not going off subject and look for any spelling or grammar mistakes.
One important difference between in-person class discussions and online discussion boards is the
lack of context. In person, you can use body language to determine how someone feels about
what they’re saying. When writing online, it can be difficult to understand the tone your writing
gives off to your readers.
Try using empathy – read your post as if you were a classmate or friend and consider how they
might respond if this was a post they read.
Avoid all-caps (IT LOOKS LIKE YELLING), “text speak” and slang terms (LOL, omg, on
fleek), and use typical punctuation (not multiple exclamation points or emoticons). As always,
never use racial or ethnic slurs, aggressive language, profanity, or language that could be
offensive to other cultures or religions.
Writing Forum Posts and Responses
When You Are Posting Replies to Classmates’ Posts
Again, Read the Direction Carefully
Your instructor may have one set of expectations for original posts, and an entirely different set
of rules for replying to your classmates’ posts. If there aren’t any guidelines in the syllabus about
replying to posts, don’t hesitate to ask your instructor what he or she expects replies to include.
Make Meaningful Conversation
Discussion boards are meant to be conversations, where each post builds on the previous
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material from your textbook, class lectures, or relate to your own life experiences when
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constructively – just like construction, you’re building upon a post.
There are three main ways to respond constructively to a post:
ï‚·
ï‚·
ï‚·
“No, because…”
“Yes, and…”
“Yes, but…”
Respectfully Disagreeing – “No, because…”
If you disagree with someone’s post, show that you appreciate that your classmate has an
opinion, even if it’s different from your own. Don’t personally attack the writer, and avoid using
emotional appeals.
Instead, focus on the logic of view your classmate has: does it make sense? Do the causes and
effects as explained really relate to one another? Does one claim necessary follow another? Are
there flaws in your classmate’s argument? Ask questions to better understand the writer’s logic.
Agreeing With and Expanding Upon a Post – “Yes, and…”
Let’s say you agree with the writer’s main idea, and you want to add more to it. Take the original
opinion or view that your classmate expresses and consider other angles. Are there factors about
this topic that your classmate hasn’t mentioned? Do you have insight that provides a clearer
picture or helps build the discussion?
Agreeing With and Expanding Upon a Post – “Yes, but…”
This is very similar to “Yes, and…” with the exception that you are playing “devil’s advocate” you’re pointing out things that don’t quite mesh with the view or opinion your classmate posts.
You agree with what your classmate is saying, but you’re pointing out problems with the view or
statement that make it harder to defend.
If you’re getting points taken off for discussion board assignments and you’re not sure why, ask
your instructor for feedback. You can also come visit the Writing Center for help – we’re not just
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Writing Forum Posts and Responses
(Examples from this website: https://writingcommons.org/open-text/new-media/online-forums/651-online-forums-responding-thoughtfully)
Let’s say a classmate posts the following message about abortion on your class discussion board:
All women should have abortions if they’re unmarried. Having children when a woman is
unmarried can cause severe problems for that child later in life. The child can grow up and
become a drug addict. So it’s the woman’s duty to have an abortion if there is no father in the
picture.
“No, because…”
Here are two examples of responses you could give that respectfully disagree:
1. I respectfully disagree with your views regarding abortion. I do understand your concerns, but I
wonder whether drug addiction necessarily follows a fatherless life. I was raised without a father
and have never touched a drug in my life. Do you think that all children who are raised without
fathers cannot lead fulfilling and successful lives?
2. Perhaps we might consider the logic employed in this post: while I understand your concern for
the child’s quality of life, I do not understand that connections you’re drawing. Perhaps you—or
someone else who agrees with this post—could elaborate upon why you feel this way?
Both responses are respectful of your classmate’s position, even if you strongly disagree. They
point to issues with the writer’s logic and end with questions which continue the discussion.
“Yes, and…”
Here’s an example of agreeing with the post about abortion, and adding onto it:
I definitely see your point about the child’s quality of life. In fact, I know someone who dealt with
a previous experience. I would also like to add this question: What about women who have been
raped? Would that trauma necessarily carry over to the child?
You’re adding another point to the original question. This helps continue the conversation with
other students who may also comment on this post, and gives the conversation more depth.
“Yes, but…”
Here’s an example of agreeing with the post about abortion, but disagreeing with some parts:
The quality of life of a child raised without both parents is certainly something to consider. I’m
not sure that being unmarried is the biggest issue though. There are relationships where
unmarried women still have the support of their partners, giving the children two parents or
parental figures.
STEPHANIE COONTZ
The Evergreen State College
The World Historical Transformation of Marriage
For the past several years, I have had the disconcerting but exhilarating privilege of ranging
back and forth over a time span of 5,000 years
in my readings on marriage and family life. In
the book I am just finishing on the history of
marriage, I have pushed my studies further back
into the past than I have ever ventured before.
But as the national cochair and press liaison for
the Council on Contemporary Families, it was
also my job to stay on top of the exciting new
research that appears in journals such as this
one. Being able to combine these two projects
has helped me gain a better perspective on both
the historical trends in marriage and the contemporary debates about its future.
I have spent much of my career as a historian
explaining to people that many things that seem
new in family life are actually quite traditional.
Two-provider families, for example, were the
norm through most of history. Stepfamilies
were more numerous in much of history than
they are today. There have been several times
and places when cohabitation, out-of-wedlock
births, or nonmarital sex were more widespread
than they are today. Divorce was higher in
Malaysia during the 1940s and 1950s than it is
today in the United States. Even same-sex marriage, though comparatively rare, has been accepted in some cultures under certain conditions.
Similarly, many societies have had a very
casual attitude toward what deserves recognition as a marriage. The ‘‘tradition’’ that marriage has to be licensed by the state or sanctified
by the church is more recent than most people
The Evergreen State College, Seminar Building, Olympia,
WA 98505 (coontzs@msn.com).
Key Words: arranged marriage, family change, history of
marriage, love.
974
assume. In ancient Rome, for example, the difference between cohabitation and legal marriage
was entirely subjective. It depended solely upon
the partners’ intent. And I am more than a little
bemused when people talk about the traditional
sanctity of the Christian wedding ceremony.
For more than a thousand years, the Catholic
church took the position that if a man and
woman claimed that they had exchanged words
of consent, whether in the kitchen or out by the
haystack, then they were married.
In the process of writing this book, however,
I have shifted my focus. I still believe that when
it comes to any particular practice or variation
on marriage, there is really nothing new under
the sun. But when we look at the larger picture,
it is clear that the social role and mutual relationship of marriage, divorce, and singlehood in
the contemporary world is qualitatively different from anything to be found in the past.
Almost any separate way of organizing caregiving, childrearing, residential arrangements, sexual interactions, or interpersonal redistribution
of resources has been tried by some society at
some point in time. But the coexistence in one
society of so many alternative ways of doing all
of these different things—and the comparative
legitimacy accorded to many of them—has
never been seen before.
The contemporary revolution in marriage and
family life is what historians sometimes call an
overdetermined phenomenon—something that
has so many separate causes and aspects that
getting rid of one, two, or even several elements
of the change would not reverse it. Divorce and
single parenthood have both been common in
many societies in the past, but they almost
never coexisted with the right of women to initiate the divorce, or the ability of so many
Journal of Marriage and Family 66 (November 2004): 974–979
World Historical Transformation of Marriage
single women to actually support themselves
and their children. The extraordinary increase in
the economic independence and legal equality
of women has reshaped the social landscape of
family life. It has put a new spin on almost
every contemporary aspect of marriage (and of
nonmarriage), even if some of our contemporary features superficially resemble something
in the past. The rise of new forms and patterns
of cohabitation has had similar far-reaching effects, as many contributors to this issue point
out. And the legal gains for unmarried heterosexual and same-sex partners have challenged
the ways that marriage traditionally organized
people’s rights and responsibilities on the basis
of biology and gender.
But marriage has also been transformed by
the behavior of married people who will never
divorce, and by the actions of heterosexual singles who would never consider having a child
out of wedlock. The reproductive revolution,
for example, was pioneered by married couples
eager to overcome their infertility. Yet it transformed all of the traditionally taken-for-granted
relationships between marriage, sex, conception, childbirth, and parenting, allowing individuals to become parents who would never have
been able to do so before. They can have those
children in such bewildering combinations that
a child can theoretically have five different parents (a sperm donor, an egg donor, a birth
mother, and the social parents who raise the
child). And that count does not reckon with any
later complications introduced by divorce and
remarriage!
An even more revolutionary innovation is the
increasingly common option of not having any
children at all. A large proportion of people
who marry today will never have children, not
because of infertility, but because they choose
to remain childless. This is a huge change from
the past, when childlessness was an economic
disaster and often led to divorce even when the
couple would have preferred to stay together.
The many young people who are delaying
marriage until their late 20s or early 30s also
contribute to the lessened role of marriage in
organizing social and personal life. These
young people are not necessarily antimarriage.
Often, they delay marriage because they are
very antidivorce. But the long period of life
when they live on their own, with full access to
the rights and privileges of adulthood, reduces
the social weight that marriage exerts in society.
975
Today, unlike many periods in history,
almost any heterosexual is free to marry. But
marriage is no longer necessary to activate
one’s property rights, legal standing, public
roles, and social status. The large pool of people
who remain single for years but who are still allowed to assume adult roles challenges the ways
that Europeans and Americans have organized
social life for hundreds, if not thousands, of
years. This challenge would exist even if everyone eventually married and the divorce rate
dropped back to the levels of the 1950s.
The expansion of solitary living in contemporary Western societies has been staggering. In
1950, just 10% of all households in Europe contained only one person. Five decades later, oneperson households made up slightly more than
one quarter of all households in the United
States, 30% of all British households, and 40%
of all Swedish households. Greece had the
lowest percentage of one-person households in
Europe at the end of the 20th century. But even
there, one-person households represented
almost 20% of the total, twice the 1950 average
for Europe as a whole.
Never before have so many people lived
alone. And never before have unmarried people,
living alone or in couples, had the same rights
as married adults. The lessened importance of
marriage in organizing people’s life cycles and
assumption of adult responsibilities changes
the experience of all people who marry, no matter how ‘‘traditional’’ they hope that marriage
will be.
When I look at contemporary debates about
what is happening to marriage through this historical lens, I am struck by how often the ‘‘optimistic’’ and the ‘‘pessimistic’’ predictions of the
future are based on what are in many ways
secondary or surface fluctuations taking place
above the more long-range subterranean
changes in family life. In the mid-1990s, the
consensus among popular commentators was
that marriage was dying. The dramatic jump in
the proportion of cohabiting couples between
1990 and 1996 was projected into the future,
generating the forecast that marriage would be
extinct in 30 years. Trends in single-mother
families led to predictions of a ‘‘fatherless’’
America.
Then at the end of the 1990s, commentators
found a number of signs that led them to hope
that the pace of change in marriage arrangements and family life was slowing down and
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even in some cases reversing. Divorce rates fell
in the United States and Britain. In the United
States, young men in the 1990s expressed more
support for marriage than their same-age counterparts had in the 1970s. The late 1990s saw an
uptick in the number of impoverished children
living with two adults instead of one. A study
of more than 10,000 American high school students reported that 48% had engaged in sexual
intercourse in 1997, down from 54% in 1991.
Teens who did engage in sex were more likely
to use condoms during the 1990s, which
produced a decline in the abortion rate and in
sexually transmitted diseases (Ellman, 2000;
Risman & Schwartz, 2002; Thornton & YoungDeMarco, 2001).
All of this was heady news to many observers. ‘‘Abstinence: the Next Teen Thing,’’
announced the teasers for a local television program in my area. The head of one institute
aimed at restoring ‘‘traditional’’ American family values wrote hopefully that ‘‘after more than
three decades of relentless advance, the family
structure revolution in the U.S. may be over’’
(Blankenhorn, 2001).
In a 1997 survey of 10 European countries,
demographers Anton Kuijsten and Klaus Strohmeier found several trends suggesting that the
‘‘de-traditionalization’’ of marriage and family
life had reached its limits. They noted that countries that had lagged in family change during
the 1970s and 1980s were still catching up in
the 1990s, with increases in divorce rates and
the age of first marriage, and decreases in male
breadwinner families and birth rates. But countries that had led the way in family change during the 1970s and 1980s, they claimed, ‘‘seem
to be over the hill and have started their way
back’’ (Kuijsten & Strohmeier, 1997).
Perhaps the most excitement of all was generated by a single statistic from the United States
census indicating that between 1998 and 2000,
the labor force participation of women with babies dropped for the first time in a quarter century. The Census Bureau reported that as of
June 2000, 55% of women with infants under
1 year old were in the work force, a decline
from 59% in 1998 (Lewin, 2001). The New
York Times Magazine, combining Census
Bureau statistics with a few anecdotes about
high-achieving women who quit their jobs,
announced the arrival of ‘‘The Opt-Out Revolution’’ among working moms (Belkin, 2003).
And as I write this article, I have on my desk
Journal of Marriage and Family
six other media reports about how working
moms are rediscovering the joys of staying
home.
On closer inspection, of course, none of these
trends presages any return to so-called ‘‘traditional’’ marriages and family life. Divorce rates
have been falling, yes, but in many countries,
marriage rates have been falling even more. The
uptick in two-parent families among the poor
turned out to be due mainly to an increase
in cohabitation. The much-ballyhooed dip in
working mothers with children under the age
of 1 left more than 50% of such mothers still in
the workforce, a much larger figure than the
30% of such moms in paid labor in the 1970s.
And 72% of mothers with children above the
age of 1 were in the workforce in 2002, maintaining the 100-year high reached in the late
1990s (Gerson, 2003; U.S. Census Bureau,
2003).
For those still harboring any illusion that the
historical transformation of marriage had come
to an end, the rash of victories for proponents of
same-sex marriage in 2003 and 2004 must have
come as a major shock. In 2003, Canada legalized same-sex marriage. Then, on November
18, 2003, the Massachusetts Supreme Court
ruled that the state constitution guaranteed equal
marriage rights for same-sex couples. Responding to an uproar of protest from his conservative
base, President Bush declared in his State of the
Union Address on January 20, 2004, that the
nation must ‘‘defend the sanctity of marriage.’’
This in turn spurred the newly elected mayor of
San Francisco, Gavin Newsome, to express his
indignation by directing the city to start issuing
marriage licenses to gay and lesbian couples on
February 12. More than 3,200 couples, many of
them from out of state, flocked to San Francisco
to get married.
In response to the mounting controversy,
President Bush endorsed a constitutional amendment prohibiting same-sex marriage. But this
only incited more defiance. In New Mexico,
New York, and Oregon, county clerks and commissioners also began issuing wedding licenses
to gay and lesbian couples. As this issue goes to
press, the controversy continues to rage.
Whatever people’s feelings about same-sex
marriage, everyone could see that gender norms
and marriage behaviors had not stabilized after
all. Commentators who had been happily predicting a return to traditional marriage immediately changed their tune. ‘‘The gays have
World Historical Transformation of Marriage
moved in to deliver the knockout punch’’ to
marriage, claimed Phyllis Schlaffly, who led the
successful battle against the Equal Rights
Amendment in the 1970s (Nieves, 2003).
The fundamentalist Protestant minister James
Dobson, founder of Focus on the Family, put it
even more starkly: ‘‘The institution of marriage
is on the ropes,’’ he wrote in September 2003,
after the victories for same-sex marriage in
Canada and the U.S. Supreme Court ruling
overturning antisodomy laws. ‘‘Unless we act
quickly, the family as it has been known for
5,000 years will be gone’’ (Dobson, 2003).
Now, it is not often that I agree with James
Dobson about issues relating to marriage, and it
is even more rare for me to accuse him of
understatement. But the research I have been
doing for my forthcoming history of marriage
convinces me that Dobson is not only making
an important point but also is actually underestimating just how momentous a change we are
talking about.
In my view, marriage as we have known it
for 5,000 years has already been overthrown.
But it was heterosexuals, not gays and lesbians,
who accomplished this revolution. The demand
of gays and lesbians for legal recognition of
their unions is a symptom, not the cause, of
how much and how irreversibly marriage has
changed.
THE REAL TRADITIONAL MARRIAGE
For thousands of years, marriage organized people’s places in the economic and political hierarchy of society. Whatever functions marriage
served for the man and woman involved and for
the children they produced, marriage was not
primarily for their individual benefit. It was
a way of raising capital, constructing political
alliances, organizing the division of labor by
age and gender, and deciding what claim, if
any, children had on their parents, and what
rights parents had in their children. Marriage
served so many political, social, and economic
functions that the individual needs and desires
of its members (especially women and children,
its subordinate members) were secondary considerations. In fact, for most people, whether
rich or poor, marriage was as much about getting in-laws as about finding a mate and having
a child.
For the propertied classes, marriage was the
main way of consolidating wealth, transferring
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property, laying claim to political power, even
concluding peace treaties. When upper-class
men and women married, dowry, bride wealth,
or tribute changed hands, making the match
a major economic investment by the parents
and other kin of the couple. Even middle-class
families had a huge economic stake in who married whom. Until the late 18th century, historian
Margaret Hunt (1996) points out, marriage was
‘‘the main means of transferring property, occupational status, personal contacts, money, tools,
livestock and women across generations and
kin groups’’ (p. 151). For most men, the dowry
that a wife brought was the biggest infusion of
cash, goods, or land that they would ever
acquire. For most women, finding a husband
was the most important investment they could
make in their economic future.
In the lower classes, marriage was also an
economic and political transaction, but on
a different scale. Instead of making an alliance
with another domain to prevent war, the concerns of commoners were more immediate:
‘‘Do I marry someone with fields near my
fields?’’ ‘‘Will my prospective mate meet the
approval of the neighbors and relatives on
whom I depend?’’ ‘‘Would these in-laws be
a help to our family or a hindrance?’’ And
because few farms or businesses could be run
by a single person, the skills, resources, and
tools prospective partners brought to the marriage were at least as important as their personality or attractiveness.
For all socioeconomic groups, marriage was
the most important marker of adulthood and
respectability. It was the primary way of organizing work along lines of age and gender.
It was the main vehicle for redistributing resources to old and young—and also, contrary to
contemporary romanticization of family life in
the past, the main vehicle for extracting labor
from the young.
For all of these reasons, love was considered a very poor reason to get married.
It was desirable for love, or at least affection, to develop after marriage, and many parents allowed their children to veto a match with
a partner who repelled them. But love was
not the main thing that people took into account
in deciding when and whom to marry. And
when divorce occurred, it was more often to
get a better set of in-laws or because of childlessness rather than because love had fled the
home.
Journal of Marriage and Family
978
THE LOVE REVOLUTION
In the 17th century, a series of interrelated political, economic, and cultural changes began to
erode the older functions of marriage and throw
into question the right of parents, local elites,
and government officials to limit individual
autonomy in personal life, including marriage.
And in the 18th century, the revolutionary new
ideal of the love match triumphed in most of
Western Europe and North America.
The marital ideals inaugurated in the 18th
century represented a break with literally thousands of years of history. Suddenly, couples
were supposed to invest more of their emotional
energy in each other and their children than in
their natal families, their kin, their friends, and
their patrons. There was a new stress on marital
companionship, intimacy, and privacy. The new
ideal was a long way from the 20th century
notion that men and women should be friends
and lovers, but it was headed in that direction.
Contemporaries immediately recognized that
this new idea threatened to radically destabilize
personal life and gender relations. No sooner
was the ideal of the love match and lifelong intimacy invented than people who took it seriously began to demand the right to divorce. The
first demands to decriminalize homosexuality
also came at the end of the 18th century, and
they were raised by some of the most ardent
defenders of the love match. Even in stable marriages, conservatives complained, the new values caused the couple ‘‘to be constantly taken
up with each other’’ instead of carrying out their
duties to society.
In other words, the very values that we have
come to think of as traditional, the very values
that invested marriage with such emotional
weight in people’s lives, had an inherent tendency to undermine the stability of marriage as
an institution even as they increased the satisfactions of marriage as a relationship. I try to
show in my forthcoming book that today’s crisis of marriage was built in to the radical new
marital values that so many people mistakenly
believe are many thousands of years old. The
same things that made marriage become such
a unique and treasured personal relationship
during the last 200 years paved the way for it to
become an optional and fragile one.
For years, we have debated why the institution of lifelong marriage began to unravel in the
1970s. Liberals have blamed socioeconomic
forces. Conservatives have pointed to value
changes. But I now believe that the real question is not why things fell apart in the 1970s,
but why they did not fall apart in the 1790s.
That is what I am currently attempting to figure
out in my new book.
I do not believe that marriage will disappear.
However, the trends that we are seeing, not just
in Europe and North America, but all over the
world, suggest that marriage will never regain
its monopoly over the regulation of sex, the rearing of children, the transmission of resources
from the older to the younger generation, or
the organization of the division of labor by
gender.
In legal terms, almost all Western nations,
and even some non-Western ones, have experienced a blurring of the differences between the
legal responsibilities and rights of married and
unmarried individuals. Unmarried individuals
who behave as if they are married have many of
the same rights and are subject to many of the
same obligations that used to depend on possession of a marriage license. Conversely, married
people who wish to part are no longer held
together by legal compulsion or economic
necessity. It is more possible for individuals to
live on their own than ever before in history.
Scholars of marriage and family life have
many names to describe the breakdown of the
wall separating marriage from nonmarriage.
Andrew Cherlin (2004) talks about the deinstitutionalization of marriage in his contribution to
this issue. Legal scholars refer to the delegalization of marriage. French sociologist Irene Thery
(1994) calls the process ‘‘demarriage.’’ I like
historian Nancy Cott’s (2000) suggestion that
what has happened to marriage is akin to the
historical disestablishment of religion. Once the
state stopped conferring a whole set of special
rights and privileges on one particular religious
denomination, religion itself did not disappear,
but many different churches and new religious
groups proliferated. Similarly, once the state
stopped insisting on a government-sanctioned
marriage license for people to partake of the privileges and duties of parenthood or other longterm commitments, other forms of intimate
relationships and childrearing arrangements proliferated, or came out from underground (Cott;
Millar & Warman, 1996; Thery; Willekens,
2003).
Historians are generally reluctant to use the
word revolution to describe changes in social
World Historical Transformation of Marriage
life, because such changes usually have very
deep historical roots and almost always retain
tremendous continuities with the past. We are
especially skeptical when it comes to issues
connected with family life, because ever since
ancient Egypt and classical Rome, older generations have been bemoaning the loss of older
family forms or marital values and predicting
disaster for the next generation.
But in my current writing project, I have
become convinced that we are indeed in the
middle of a world-historic transformation of
marriage and family life. Things are changing
so fast that it is hard to tell which new relationships and interpersonal outcomes we observe
are features of a new system and which are
products of the transitional period we are going
through. But one thing is for sure: There will be
no turning back.
For better or worse, the relationship of marriage to larger social and economic institutions
has been fundamentally changed, and so have
individuals’ own personal experiences of marriage or nonmarriage. Our research and practice
must take this as a given. In the current historical context, the appropriate question for researchers and family practitioners is not what
single family form or marriage arrangement we
would prefer in the abstract, but how we can
help people in a wide array of different committed relationships minimize their shortcomings
and maximize their solidarities.
NOTE
Stephanie Coontz teaches history at The Evergreen State
College. Her new book on the history of marriage will be
published by Viking-Penguin in 2005.
REFERENCES
Belkin, L. (2003, October 26). The opt-out revolution. The New York Times Magazine.
979
Blankenhorn, D. (2001, October). Is the family structure revolution over? American Values Reporter.
Cherlin, A. J. (2004). The deinstitutionalization of
American marriage. Journal of Marriage and
Family, 66, 848–861.
Cott, N. (2000). Public vows: A history of marriage
and the nation. Cambridge, MA: Harvard University Press.
Dobson, J. (2003, September). Focus on the Family
Newsletter.
Ellman, I. (2000). Divorce rates, marriage rates, and
the problematic persistence of traditional marital
roles. Family Law Quarterly, 34.
Gerson, K. (2003, December 17). Working moms
heading home? Not likely. Council on Contemporary Families news release, Ascribe Newswire.
Retrieved December 18, 2003, from http://
www.contemporaryfamilies.org.
Hunt, M. (1996). The middling sort: Commerce,
gender, and the family in England, 1680–1780.
Berkeley: University of California Press.
Kuijsten, A., & Strohmeier, K. (1997). Ten countries
in Europe: An overview. In F. Kaufmann et al.
(Eds.), Family life and family policies in Europe
(Vol. I ). Oxford, England: Clarendon Press.
Lewin, T. (2001, October 19). More mothers of babies under 1 are staying home. New York Times.
Millar, J., & Warman, A. (1996). Family obligations
in Europe. London: Family Policy Studies Centre.
Nieves, E. (2003, August 17). Family values groups
and gay marriage. Washington Post.
Risman, B., & Schwartz, P. (2002). After the sexual revolution: Gender politics in teen dating. Contexts, 1.
Thery, I. (1994). Demarriage. Paris: Edition Odile Jacob.
Thornton, A., & Young-DeMarco, L. (2001). Four
decades of trends in attitudes toward family issues
in the United States. Journal of Marriage and
Family, 63.
U.S. Census Bureau. (2003, October). Fertility of
American women, June 2002 (Current Population
Survey).
Willekens, H. (2003). Is contemporary family law
historically unique? Journal of Family History, 28.
Fordham Law Review
Volume 84
Issue 1
Article 3
2015
Obergefell’s Conservatism: Reifying Familial Fronts
Clare Huntington
Fordham University School of Law
Follow this and additional works at: https://ir.lawnet.fordham.edu/flr
Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Fourteenth
Amendment Commons, and the Law and Society Commons
Recommended Citation
Clare Huntington, Obergefell’s Conservatism: Reifying Familial Fronts, 84 Fordham L. Rev. 23 (2015).
Available at: https://ir.lawnet.fordham.edu/flr/vol84/iss1/3
This Foreword is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and
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Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu.
OBERGEFELL’S CONSERVATISM:
REIFYING FAMILIAL FRONTS
Clare Huntington*
I am delighted with the result in Obergefell v. Hodges,1 but I am unhappy
with the Court’s reasoning.2 In lieu of a straightforward, and far more
defensible, decision based purely on the Equal Protection Clause,3 Justice
Kennedy’s reliance on the Due Process Clause is deeply problematic.
A substantive due process analysis required the Court to define marriage
and explain its social importance. This meant the Court had to choose
between competing images—social fronts—of marriage. If it had used an
equal protection analysis, the Court would not have had to decide whether
marriage is traditional or marriage is more plural. Instead, the Court would
have espoused a thinner notion of marriage—that, whatever its essential
nature, marriage must be available on equal grounds unless the state can
convincingly argue otherwise. An equal protection analysis also would
have obviated the need for Justice Kennedy’s paean to marriage.
There are two lamentable consequences of the Court’s framing. It
unnecessarily disrespects people who in good faith have a different view of
the social front of marriage. And it reifies marriage as a key element in the
social front of family, further marginalizing nonmarital families.4
* Professor and Associate Dean for Research, Fordham University School of Law.
1. 135 S. Ct. 2584 (2015).
2. I laid out my concern about basing marriage equality on the Due Process Clause
rather than the Equal Protection Clause before Obergefell was decided. See Clare
Huntington, Staging the Family, 88 N.Y.U. L. REV. 589, 646–49 (2013). As I explain in this
Essay, Obergefell confirmed that I was right to worry. See infra Parts I, II.
3. Justice Kennedy, in his majority opinion for the Court, did invoke the Equal
Protection Clause as an additional basis for its holding, see Obergefell, 135 S. Ct. at 2602–
05, but the equal protection analysis is very thin, see id. at 2623 (Roberts, C.J., dissenting)
(“The majority does not seriously engage with [the equal protection] claim. Its discussion is,
quite frankly, difficult to follow.”).
4. There are other problems with the opinion as well, some of which also flow from the
decision to rest the opinion primarily on the Due Process Clause. For example, marriage
equality is an important substantive and symbolic victory for promoting equal treatment of
LGBT individuals, but the majority opinion is unnecessarily anchored to marriage. If the
Court had seen discrimination in marriage as part of a larger question about equal
citizenship, all LGBT individuals would have benefitted. A more robust LGBT rights
agenda would include protection from discrimination in employment, housing, and much
more. Support the Equality Act, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/campaigns/
support-the-equality-act (last visited Sept. 27, 2015) (“Even after a marriage victory at the
Supreme Court, in most states in this country, a couple who gets married at 10 a.m. remains
at risk of being fired from their jobs by noon and evicted from their home by 2 p.m. simply
23
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FORDHAM LAW REVIEW
[Vol. 84
I. THE IMPORTANCE OF SOCIAL FRONTS
Justice Kennedy framed the majority’s analysis as a struggle between
competing social fronts of marriage, with the Court as the arbiter. To
understand what this means and why it is problematic, let me back up.
As I have written elsewhere,5 family law is performative. That is,
iterated, everyday performances of family roles—from wearing a wedding
ring to sending holiday cards—create and then maintain collective
understandings of categories such as mother, father, child, and family itself.
Think about presidential candidates crossing the stage with their smiling,
opposite-sex spouses and biological or adopted children.
These
performances send a message about the centrality of the traditional, nuclear
family in our culture. Or think about school pick-up time, when the
playground is filled with mothers and female babysitters.
These
performances send a message about the role of women as primary
caregivers.
Over time, these performances shape what the sociologist Erving
Goffman called a social front—a shorthand for conveying information
about a category of people.6 A woman pushing a stroller is a mother. A
man throwing a ball to a young child is a father. Almost by definition,
social fronts tend to be narrow, reflecting the typical and sometimes
idealized performance.
Social fronts change over time, but the way they typically change is
through other, iterated performances. When politicians reflect other family
structures,7 it sends a message about the potential faces for “family.” And
when fathers begin to pick up children from school, their performances may
initiate, even if only fitfully, the slow process of changing the social front of
fatherhood.8
The law plays a role in this process, drawing on and often reinforcing
social fronts. When deciding whether the Constitution should protect the
relationship between an unmarried father and his child, for example, the
for posting their wedding photos on Facebook.”) [http://perma.cc/5CFD-5E68]. An opinion
based solely on the Equal Protection Clause, and not “the transcendent importance of
marriage,” would have sent the message that equal citizenship is about more than marriage.
Obergefell, 135 S. Ct. at 2594. Additionally, there would have been greater clarity with
respect to the level of scrutiny applicable to laws and actions that treat LGBT individuals
differently from heterosexual individuals.
5. See Huntington, supra note 2.
6. See ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE 26–27 (1959).
Wearing a white laboratory coat, for example, conveys a general message of cleanliness and
modernity to the audience without fleshing out the details of precisely how this particular
professional is clean and modern. See id. at 26.
7. Former New York City Mayor Michael Bloomberg, for example, has a long-time
companion who accompanied him to many official events. See Michael Cooper, City’s ‘First
Lady’ to Leave State Position for Private Firm, N.Y. TIMES (Feb. 15, 2007),
http://www.nytimes.com/2007/02/15/nyregion/15diana.html [http://perma.cc/3CNW-J65H].
8. See Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35
HARV. J.L. & GENDER 57, 58–78 (2012) (describing the multiple “ways in which legal and
social norms configure parenting as a sexed endeavor,” with mothers understood as the
primary parent and fathers as peripheral caregivers, but also offering solutions for changing
these norms).
2015]
OBERGEFELL’S CONSERVATISM
25
Supreme Court looked to the dominant social front of fatherhood—
breadwinning—to judge whether the would-be fathers deserved legal
recognition.9 By making this marker of fatherhood legally salient, the
Court reinforced the social front of fatherhood: fathers are men who
provide for their children.
The law can also play a role in altering a social front. When Sweden
changed its parental leave policy to encourage more fathers with young
children to take time off, for example, this helped shift the social front of
fatherhood, with men more likely to combine careers with caregiving.10
It is more fraught, however, when a court, as opposed to a legislature,
chooses between competing social fronts. Marriage equality is a good
example.
The debate over marriage equality was fundamentally about controlling
the meaning—the social front—of marriage. Advocates of marriage
equality wanted access to the tangible and intangible benefits of marriage,
but they knew the way to get there was by hewing closely to the existing
social front of marriage. Thus, advocates carefully selected plaintiffs and
crafted media campaigns that preserved the core of the social front.
Lesbians and gay men were portrayed as long-term, committed partners and
parents who sought nothing more than normalcy—to be a soccer mom or to
say grace before a family dinner.11 Framed this way, the claim for legal
recognition was not so great a demand. The advocates did not want to
change marriage, they simply wanted access to it.12
Social conservatives, in turn, believed that allowing same-sex couples to
marry would drastically change the social front of marriage. From their
9. See Huntington, supra note 2, at 620–21 (discussing Stanley v. Illinois, 405 U.S. 645
(1972); Lehr v. Robertson, 463 U.S. 248 (1983)). The Court thus took a narrow, idealized
social front, cemented it into the legal category of “father,” and then invoked this
construction to judge all aspirant fathers. Breadwinning is still the dominant social front of
fatherhood. See Clare Huntington, Postmarital Family Law: A Legal Structure for
Nonmarital Families, 67 STAN. L. REV. 167, 210–11 (2015) (discussing the continuing norm
of fathers as breadwinners).
10. See Alicia Brokars Kelly, Navigating Gender in Modern Intimate Partnership Law,
14 J.L. & FAM. STUD. 1, 38–39 (2012) (discussing the changes in Sweden’s law and noting
both its relative success as well as limitations in equalizing caregiving responsibilities
between men and women); Katrin Bennhold, In Sweden, Men Can Have It All, N.Y. TIMES
(June 9, 2010), http://www.nytimes.com/2010/06/10/world/europe/10iht-sweden.html?_r=0
(describing the changes in social norms after the change in the law) [http://perma.cc/2GJP76K5].
11. Natalie Wilson, From Gestation to Delivery: The Embodied Activist Mothering of
Cindy Sheehan and Jennifer Schumaker, in MOTHERS WHO DELIVER:
FEMINIST
INTERVENTIONS IN PUBLIC AND INTERPERSONAL DISCOURSE 231, 243 (Jocelyn Fenton Stitt &
Pegeen Reichert Powell eds., 2010) (describing the “500 Mile Walk for Togetherness” by
Jennifer Schumaker, a lesbian who called herself a “lesbian soccer mom,” in an effort “to
create a sustainable link between forces that wish to ‘other’ her”); GetToKnowUsFirst.org,
Xavier & Michael, YOUTUBE (Jan. 21, 2009), http://www.youtube.com/watch?v=SeK_wGyHD8 (depicting a happy, functional two-father family playing basketball and saying
grace before dinner) [http://perma.cc/X3B5-4N7L].
12. See Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015) (“It would misunderstand
these men and women to say they disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its fulfillment for themselves.”).
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perspective, if the social front of marriage was no longer one man and one
woman, it would be that much harder for conservatives to teach their
children that men and women have distinct roles to play in family life.13
Families could teach this lesson at home, but it would be more difficult to
do so if the social front of marriage did not reflect a traditional gender
division.14
When courts and legislatures decided whether, as a matter of policy or
constitutional necessity, same-sex couples should be allowed to marry,
these legal institutions weighed in on the dispute over the social front of
marriage.
But courts and legislatures are not similarly situated when it comes to
making these decisions. It is one thing for a legislative proposal or a ballot
initiative to determine the social front of marriage, because those processes
allow multiple voices and sustained debate about this sensitive social issue.
By contrast, it is more problematic for the judiciary to choose the
appropriate social front.
And yet Justice Kennedy did exactly this. By basing its opinion
primarily on the Due Process Clause, the Court had to define marriage and
then ask whether LGBT individuals could be excluded from it. Justice
Kennedy argued that allowing same-sex couples to marry would not
drastically alter the social front of marriage. As he stated:
Were their intent to demean the revered idea and reality of marriage,
the petitioners’ claims would be of a different order. But that is neither
their purpose nor their submission. To the contrary, it is the enduring
importance of marriage that underlies the petitioners’ contentions. . . . Far
from seeking to devalue marriage, the petitioners seek it for themselves
because of their respect—and need—for its privileges and
responsibilities.15
In other words, same-sex couples are no different from opposite-sex
couples, and because there are good reasons to allow same-sex couples to
marry (such as conferring dignity and providing benefits), the state cannot
prevent them from doing so.16
All this may be true, but who is Justice Kennedy to choose between
competing social fronts? It is hardly surprising that Chief Justice Roberts
raised charges of judicial activism.17 The objections in his dissent can be
13. See id. at 2594 (“To them, it would demean a timeless institution if the concept and
lawful status of marriage were extended to two persons of the same sex. Marriage, in their
view, is by its nature a gender-differentiated union of man and woman.”).
14. Ken Blackwell, Civil Unions and True Marriage, WORLD (Aug. 24, 2012, 5:31 PM),
http://www.worldmag.com/2012/08/civil_unions_and_true_marriage (describing the dangers
of allowing same-sex couples to marry, including the concern that “schoolchildren [will be]
proselytized in the early grades [with] the new definition of marriage”) [http://perma.cc/
HP7U-5Y85].
15. Obergefell, 135 S. Ct. at 2594.
16. Id. at 2599 (“The four principles and traditions to be discussed demonstrate that the
reasons marriage is fundamental under the Constitution apply with equal force to same-sex
couples.”).
17. Id. at 2611–12 (Roberts, C.J., dissenting).
2015]
OBERGEFELL’S CONSERVATISM
27
understood as a criticism of the Court choosing one social front over
another.18
A more persuasive, and arguably less provocative, way to uphold the
right of same-sex couples to marry would have been to base the decision
purely on the Equal Protection Clause. In an equality analysis, the Court
would not have overtly chosen between social fronts. The Court would
have concluded that regardless of the social meaning of marriage, states
cannot deny access to it based on sexual orientation absent a rational,
important, or compelling state interest. In this way, the Court would not
have defined the proper social front of marriage, but instead determined the
permissible grounds for state classifications.19
As a matter of institutional competence, courts are much better suited to
the task of evaluating claims of equality and discrimination than choosing
between contested social fronts.
Moreover, there are significant
disadvantages to the framing the Court chose, as the next two parts explore.
II. AN UNNECESSARY FIGHT
In reality, marriage equality was a fight over the social front of marriage,
but Justice Kennedy framed the legal question in these terms as well. By
doing so, he unnecessarily provoked social conservatives. I am not arguing
that the Court should have avoided the constitutional issue. I disagree with
Chief Justice Roberts that this issue should have been left to the political
process. Rather, my point is that there was an alternative path for reaching
the same conclusion and that taking the other route would have been more
respectful of both sides.
An equal protection analysis would have acknowledged the stakes at play
for both advocates and opponents of marriage equality. The Court would
have found a constitutional basis for marriage equality without explicitly
choosing one social front over another and thus disparaging social
conservatives who felt that their own public conception of marriage was
threatened. It would have been more respectful to say to social
18. See id. at 2611 (“But this Court is not a legislature. Whether same-sex marriage is a
good idea should be of no concern to us. Under the Constitution, judges have power to say
what the law is, not what it should be.”); id. (“Although the policy arguments for extending
marriage to same-sex couples may be compelling, the legal arguments for requiring such an
extension are not. The fundamental right to marry does not include a right to make a State
change its definition of marriage.”); id. at 2612 (“The majority’s decision is an act of will,
not legal judgment. The right it announces has no basis in the Constitution or this Court’s
precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of
humility, openly relying on its desire to remake society according to its own ‘new insight’
into the ‘nature of injustice.’”).
19. The dissent by Chief Justice Roberts intimated that targeted claims under the Equal
Protection Clause might have been more persuasive to him, too. See id. at 2623 (rejecting a
basic equal protection claim because state law “distinguishing between opposite-sex and
same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving
the traditional institution of marriage,’” but noting that “[t]he equal protection analysis might
be different, in my view, if we were confronted with a more focused challenge to the denial
of certain tangible benefits”).
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FORDHAM LAW REVIEW
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conservatives, “We understand your views on marriage, but equality
principles require opening marriage to same-sex couples.”20
To be sure, the effect of an equal protection analysis would still have
been a change in the social front of marriage, and social conservatives
would likely still have felt a strong sense of loss. But the rationale for the
loss—that equality demands equal access, not that marriage is X—would
have acknowledged multiple social conceptions of marriage while still
upholding the Constitution.
By defining marriage as more plural, the Court said to social
conservatives that this is what the institution means, not just legally, but
also culturally. In an equality analysis, the Court would have said that
whatever marriage means culturally, a state cannot deny access to it without
distinctions that have a state (as opposed to a private, cultural) interest as a
basis. In other words, the problem is that Justice Kennedy gave the Court
the power to change not only the law but also the culture.
III. AN UNNECESSARY DENIGRATION
Justice Kennedy’s opinion is not only an affront to (some) people within
the institution of marriage, but also to individuals outside the institution.21
Far from the marble halls of the Supreme Court, marriage is not a central
feature of family life in many communities. Marriage rates remain strong
for college-educated individuals, but they are steadily declining for those
with less education and income.22 As a result, many children—40 percent
20. Moreover, equality principles are at the heart of the American legal system and
therefore would have been more persuasive than claims based on the transcendence of
marriage. Indeed, one of the most resonant arguments in the marriage equality movement
has been the comparison of domestic partnership regimes to racial “separate but equal” laws.
See, e.g., Governor Christine Gregoire, Marriage Equality Speech (Jan. 4, 2012),
http://www.digitalarchives.wa.gov/GovernorGregoire/speeches/speech-view.asp?SpeechSeq
=222 (“While I understand the experiences of racial minorities and lesbian, gay, bisexual,
and transgender Americans are not identical, laws that keep some Americans in a separate
status are inherently unjust.”) [http://perma.cc/AT6A-YUK5].
These arguments
immediately and intuitively—if also problematically—illustrate how restricting marriage to
opposite-sex couples is discriminatory. See e.g., R.A. Lenhardt, Beyond Analogy: Perez v.
Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage, 96 CAL. L. REV. 839,
879–99 (2008) (arguing that the analogy obscures more than it illuminates and that scholars
and advocates should focus on the many ways “identity-based restrictions . . . have served
primarily to police and restrain expressions of identity and, ultimately, the range of
possibilities for human intimacy”).
21. This discussion focuses on the effect of Obergefell on a particular demographic
group—low-income, unmarried adults with shared children. For a critical discussion of the
implications of marriage equality within LGBT communities, see Katherine M. Franke,
Longing for Loving, 76 FORDHAM L. REV. 2685, 2688–89 (2008) (arguing that marriage
equality advocacy risks “denigrating or shrinking an affective sexual liberty outside of
marriage” and that the legal recognition of same-sex marriage risks bringing same-sex
relationships within the constraints of heterosexual relationships, further marginalizing a
conception of intimacy and desire not based on marriage).
22. For a book length treatment of this subject, see NAOMI CAHN & JUNE CARBONE,
MARRIAGE MARKETS (2014).
2015]
OBERGEFELL’S CONSERVATISM
29
nationally23—are born to unmarried parents, most of whom will never
marry each other.24
In addition to choosing the social front of marriage, the opinion in
Obergefell reified the social front of family as the marital family. By
basing the opinion on the Due Process Clause, Justice Kennedy had to
glorify marriage.25 And he did, choosing very traditional language.
According to Justice Kennedy, marriage is “a keystone of our social
order,”26 it “embodies the highest ideals of . . . family,”27 and it “is essential
to our most profound hopes and aspirations.”28 Also according to Justice
Kennedy, the importance of marriage is likewise felt by children:
“[M]arriage allows children ‘to understand the integrity and closeness of
their own family and its concord with other families in their community and
Without “the recognition, stability, and
in their daily lives.’”29
predictability marriage offers, . . . children suffer the stigma of knowing
their families are somehow lesser. . . . The marriage laws at issue here thus
harm and humiliate the children of same-sex couples.”30 These sweeping
statements about the place of marriage in legitimizing a family are harmful
both rhetorically and substantively.
The legal system already does far too little to support nonmarital
families,31 and Justice Kennedy’s opinion reinforces the notion that these
families are deviant. Every statement that Justice Kennedy makes for the
Court can be read as an implicit criticism: a nonmarital family is not the
keystone of the social order; it does not embody the ideal of family; and it is
not essential to profound hopes and aspirations. And, by extension,
nonmarital children are necessarily humiliated by their parents’ lack of
formal marital status.
Nonmarital families face many challenges, and there is considerable
evidence that children of unmarried parents have worse outcomes than
children of married parents.32 But much of this is due to the factors that
23. See Brady E. HAMILTON ET AL., CTRS. FOR DISEASE CONTROL, BIRTHS: PRELIMINARY
DATA FOR 2014 4 (2014), http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_06.pdf
[http://perma.cc/2537-B8A9].
24. Sara S. McLanahan & Irwin Garfinkel, Fragile Families: Debates, Facts, and
Solutions, in MARRIAGE AT THE CROSSROADS: LAW, POLICY, AND THE BRAVE NEW WORLD OF
TWENTY-FIRST-CENTURY FAMILIES 145–47 (Marsha Garrison & Elizabeth S. Scott eds.,
2012) (discussing a landmark study that found that more than 80 percent of unmarried
parents are romantically involved at the time of birth but that these relationships typically do
not endure).
25. This is because the Due Process Clause requires the identification of a fundamental
right. See Obergefell v. Hodges, 135 S. Ct. 2584, 2597–98 (2015). In other words, Justice
Kennedy had to emphasize the importance of marriage to explain why excluding LGBT
individuals was so injurious.
26. Id. at 2601.
27. Id. at 2608.
28. Id. at 2594.
29. Id. at 2600 (quoting Windsor v. United States, 133 S. Ct. 2675, 2694 (2013)).
30. 135 S. Ct. at 2600–01.
31. I have explored this issue at length elsewhere. See generally Huntington, supra note
9.
32. See id. at 196.
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tend to accompany nonmarital childbearing, notably lower incomes and
lower parental education.33 Justice Kennedy’s opinion makes too much of
marital status as a marker of integrity and belonging.34
As a substantive matter, Justice Kennedy’s framing reinforces family
law’s neglect of nonmarital families. The problem with family law is that it
places marriage at the foundation of legal regulation. Family law is really
marital family law, and it is deeply problematic for nonmarital families,
undermining relationships in nonmarital families in several distinct ways.
First, marital family law’s doctrine pushes fathers out of families,
allowing mothers to control fathers’ access to shared children.35 It also
exacerbates conflict in families through child support laws that are designed
for divorcing families.36
Second, marital family law has developed legal institutions that work
relatively well for married families but not at all for unmarried families.
Marital family law presumes that couples will go to court at the end of
relationships, but unmarried couples do not need the state to end their
relationships, and most cannot afford to go to court to formalize issues such
as custody.37 This means that unmarried parents are left without an
effective institution to help them transition from a family based on a
romantic relationship to a family based on co-parenting. Thus, unmarried
parents do not have the benefit of clearly established expectations for their
rights and responsibilities following a breakup.38
Finally, marital family law—especially through child support and
custody rules—reinforces traditional gender norms that are starkly at odds
with the reality of nonmarital family life. Most unmarried fathers struggle
to support their children economically, and most unmarried mothers are
both full-time caregivers and breadwinners.39 The dominant social front of
fathers as breadwinners renders unmarried fathers failures, undermining
their place in the family by telling mothers and children that fathers are not
acting as they should. In all these ways, marital family law weakens the
already tenuous bonds that tie nonmarital families together.
33. See id. at 197–98.
34. See generally R.A. Lenhardt, Marriage As Black Citizenship?, 66 HASTINGS L.J.
1317 (2015) (describing a more robust notion of citizenship that does not derive wholly from
marriage); see also R.A. Lenhardt, Integrating Legal Marriage, 81 FORDHAM L. REV. 761
(2012) (warning that the dominant marriage equality strategy of distinguishing deserving
families from undeserving families risked further marginalizing nondominant families).
35. Huntington, supra note 9, at 202–09.
36. Id.
37. Id. at 209–10.
38. Id. at 210.
39. Id. at 210–11.
2015]
OBERGEFELL’S CONSERVATISM
31
CONCLUSION
There is much more the law can and should do to support and strengthen
nonmarital families,40 but we need to take this work seriously, beginning
with where families are and not assuming marriage is the prescription for
all that ails American families.
Justice Kennedy’s denigration of nonmarital families, even if
unintentional, is deeply troubling. By reifying the social front of family as
children with married parents, and by penning an unnecessary paean to
marriage, Justice Kennedy made the lives of nonmarital families lesser. An
opinion based on the Equal Protection Clause would not have had to elevate
marriage and, in the process, devalue nonmarital families.
In an era when marriage has become a marker of socioeconomic status,
Obergefell has the effect of further entrenching the divide between marital
and nonmarital families. Rather than marginalize nonmarital families, the
law needs to strengthen and support these families. Obergefell makes it that
much harder to do so.
My intention is not to rain on the marriage equality parade. I am thrilled
with the outcome, and I am proud to live in a country that embraces
marriage equality. But I look forward to the day when we can celebrate
opinions that embrace equality and belonging for all families.
40. Id. at 225–36 (proposing changes to family law). See generally CLARE HUNTINGTON,
FAILURE TO FLOURISH: HOW LAW UNDERMINES FAMILY RELATIONSHIPS (2014) (proposing
more broad-based changes).
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BLACK CITIZENSHIP THROUGH
MARRIAGE? REFLECTIONS ON THE
MOYNIHAN REPORT AT FIFTY
R.A. LENHARDT*
TABLE OF CONTENTS
I.
INTRODUCTION: BLACK CITIZENSHIP THROUGH
MARRIAGE?
II.
UNPACKING THE MOYNIHAN REPORT’S ACCOUNT OF
MARRIAGE AND BLACK CITIZENSHIP
III.
BLACK MARRIAGE INEQUALITY IN THE AGE OF
OBERGEFELL
IV.
WHY NONMARITAL BLACK FAMILIES MATTER
V.
CONCLUSION: THE PLACE OF BLACK FAMILIES IN THE
NEW MOVEMENT FOR CIVIL RIGHTS
I. INTRODUCTION:
BLACK CITIZENSHIP THROUGH MARRIAGE?
What are the necessary conditions for full black citizenship and
belonging? In one way or another, this question has informed and bedeviled
American public debate since our nation’s founding. In 2015, efforts to
register a satisfactory answer to this inquiry have primarily centered on
issues of policing and mass incarceration. The death of black men and
women such as Michael Brown, Rekia Boyd, and Walter Scott at the hands
of white police officers in places like Ferguson, Missouri; Chicago, Illinois;
and North Charleston, South Carolina, have exposed the comparative
insecurity and physical vulnerability of blacks in communities across the
*
Professor of Law, Fordham Law School. I wish to thank Camille Gear Rich and the USC
Gould School of Law for inviting me to participate in this important symposium, as well as the
wonderful scholars who participated in that event. I benefitted tremendously from your comments and
conversation. In addition, I want to thank Fordham Law School for the summer research grant that
supported this essay.
347
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country.1 Given that relatively few of these cases have resulted in criminal
indictments, let alone punishment, they have—as the activism of groups
such as Black Lives Matter underscores—also raised troubling questions
about the overall value placed on black life in our society.2 So discordant
are the statistics and relevant life prospects of blacks and whites in this
context that even federal lawmakers who have staked their careers on
tough-on-crime initiatives have felt compelled to make progress on
legislation that would minimize racial disparities in sentencing and
potentially work to stem the overwhelming tide of black men and women
into the criminal justice system.3
Fifty years ago, the country found itself in the midst of a similarly
intense debate about black belonging and standing in the United States.
Passage of the landmark Civil Rights Act of 1964 had just been won and
school desegregation efforts mandated by the U.S. Supreme Court’s
decision in Brown v. Board of Education,4 while not uncontested, were
under way.5 Yet, many questioned whether, without more, “equality of
results [would] . . . follow” these and other civil rights gains.6 For his part,
former Senator Daniel Patrick Moynihan—then an official with the U.S.
Department of Labor—maintained that meaningful black “progress”7
would be elusive without targeted government support and a sustained
focus on what, in his mind, constituted the single most important problem
facing African America: “family structure.”8 In the 1965 memorandum
addressing this subject that he drafted—a document now popularly referred
to as “the Moynihan Report”—Moynihan acknowledged “the racist virus in
the American blood stream,”9 but, in terms that still draw bitter criticism
today, identified nonmarriage and the rise in single female-headed black
1
See Claudia Rankine, The Condition of Black Life Is One of Mourning, N.Y. TIMES
MAGAZINE (June 22, 2015), http://www.nytimes.com/2015/06/22/magazine/the-condition-of-black-lifeis-one-of-mourning.html.
2
See Editorial, The Truth of ‘Black Lives Matter,’ N.Y. TIMES (Sept. 4, 2015),
http://www.nytimes.com/2015/09/04/opinion/the-truth-of-black-lives-matter.html
(discussing
substantive issues raised by the “Black Lives Matter” movement).
3
See Carl Hulse & Jennifer Steinhauer, Sentencing Overhaul Proposed in Senate With
Bipartisan Backing, N.Y. TIMES (Oct.1, 2015), http://www.nytimes.com/2015/10/02/us/politics/senateplan-to-ease-sentencing-laws.html?_r=0.
4
Brown v. Bd. of Educ., 347 U.S. 483 (1954).
5
WILLIAM JULIUS WILSON, MORE THAN JUST RACE: BEING BLACK AND POOR IN THE INNER
CITY 95 (2009).
6
DANIEL PATRICK MOYNIHAN, U.S. DEP’T OF LABOR, OFFICE OF POLICY PLANNING &
RESEARCH, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION (1965) [hereinafter MOYNIHAN
REPORT], https://web.stanford.edu/~mrosenfe/Moynihan’s%20The%20Negro%20Family.pdf.
7
Id. at at 5, 29, 48.
8
Id. at 5.
9
Id.
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households, not the vestiges of Jim Crow segregation or ongoing racial
discrimination, as far more deleterious to “the fabric of Negro society.”10
For Moynihan, the “establishment of a stable Negro family structure” had
to be prioritized and with it, presumably, marriage as well.11
This essay looks to surface and then interrogate the assumptions about
black citizenship and marriage at the heart of the Moynihan Report. In
doing so, it engages directly with arguments about marriage’s citizenshipconferring capacity articulated during Reconstruction by whites and many
newly freedpersons, as well as the claims more recently advanced by
LGBT rights advocates and even U.S. Supreme Court Justice Anthony
Kennedy in his majority opinion in Obergefell v. Hodges, a decision that
recognized the Fourteenth Amendment right of same-sex couples to
marry.12 Insofar as it examines the racial inequality that informs the
spiraling rates of black marriage, the essay also intervenes in current
debates about whether “black lives matter” in America.13 While postFerguson solutions for policing reforms or interventions have not often
touched on matters of race and family, I argue that the racial inequality
reflected in our criminal justice system cannot be easily divorced from that
which still shapes and constrains the functioning of black families—marital
or nonmarital—in the United States.14
The firestorm that marked the Moynihan Report’s release and the
ongoing public debate about African American family life that it provoked
means that the negative relationship between black citizenship and
nonmarriage that Moynihan asserted has been well explicated. Yet, the
positive account of marriage and citizenship underlying the Report’s
analysis—the idea that entrance into marriage can secure African
Americans with a measure of belonging long denied—has been
insufficiently explored. This essay addresses this gap. It first unpacks the
Report’s implicit assertion that marriage, and conformity with gender roles
and norms, helps to secure black citizenship and then offers a critical
analysis of that claim grounded in history and the realities of modern black
family life.
10
Id.
11
Id. at [i].
12
Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
13
Editorial, supra note 2.
14
For an account also linking inequality in the criminal justice and family contexts, see TaNehisi Coates, The Black Family in the Age of Mass Incarceration, ATLANTIC (Oct. 2015),
http://www.theatlantic.com/magazine/archive/2015/10/the-black-family-in-the-age-of-massincarceration/403246/.
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As I argue in a recent article in the Hastings Law Journal, marriage, as
an historical matter, has too often functioned less as the black deliverance
imagined and more as a mechanism for racial subordination—one that has
worked to subjugate African Americans and other racial minorities, and to
both racialize and pathologize need.15 Entrance into marriage did not work
to secure full black belonging in the past and it, without more, is unlikely to
do so anytime soon. Obergefell may have won marriage equality for samesex couples, but given the cumulative racial disadvantage and uncertainty
under which African America labors today, marriage inequality is likely to
remain the norm for blacks—gay or straight—into the foreseeable future.16
In light of this truth, I advocate a shift in focus that prioritizes supporting
nonmarital black families where they are and eliminating policies that
thwart their effective functioning. For better or for worse, dealing with the
reality of nonmarriage could do more to secure black citizenship and
belonging in our post-Ferguson twenty-first century world than marriage
ever did.
II. UNPACKING THE MOYNIHAN REPORT’S ACCOUNT OF
MARRIAGE AND BLACK CITIZENSHIP
If the so-called “welfare queens” that the Moynihan Report infamously
laments threatened to be the black community’s downfall in 1965, it was
marriage that promised to be its salvation. One would be hard pressed,
however, to find words to that effect in the Report’s pages. Instead, the
story conveyed is one of failed citizenship through nonmarriage. Marriage
promotion, to be clear, never emerges among the vague set of government
interventions that Moynihan urges. It gained renewed life as a policy option
in the Report’s aftermath, when scholars and policymakers building on
Moynihan’s work seized the concept of marriage and strategies to
incentivize it—such as the 1996 Personal Responsibility and Work
Reconciliation Act designed to incentivize welfare recipients to marry—as
a way to address the problems and inequality that the Report outlined.17
Nevertheless, the Moynihan Report’s intervention derives a great deal of
15
R.A. Lenhardt, Marriage as Black Citizenship?, 66 HASTINGS L.J. 1317, 1324-42 (2015).
16
See R.A. Lenhardt, Race, Dignity, and the Right to Marry, 84 FORDHAM. L.J. 53, 58-64
(2015) [hereinafter Race, Dignity, and the Right to Marry].
17
See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-93, 110 Stat. 2105 (1996) (codified as amended at 42 U.S.C §§ 601-603); see also Angela
Onwuachi-Willig, The Return of the Ring: Welfare Reform’s Marriage Cure as the Revival of PostBellum Control, 93 CAL. L. REV. 1647, 1648 (2005) (discussing the Personal Responsibility and Work
Reconciliation Act of 1996 and marriage promotion efforts).
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force from an affirmative narrative about marriage as citizenship
enhancing.18
In slavery’s wake, many—although by no means all—newly
emancipated persons understood “the [m]arriage [c]ovenant [to be] at the
foundation of all our rights.”19 Marriage, something denied them during
bondage, provided both a vehicle for securing other civil rights—such as
work, fair wages, or familial autonomy20—as well as an avenue through
which their overall fitness for full citizenship could be demonstrated or
performed.21 It would be too much to suggest that Moynihan meant to be in
conversation with this earlier generation of African Americans. And yet,
the two dimensions of black life and families that the Report has typically
been understood to address—those of structure and culture22—both sound
in a register of citizenship that was arguably quite salient during this time.
One perhaps sees this most immediately in the portions of Moynihan’s
analysis acknowledging that “[t]hree centuries of injustice ha[d] brought
about deep-seated structural distortions in the life of the Negro
American.”23 Social scientists building on this work have, of course,
addressed a broad range of social and economic questions that they do not
relate directly to citizenship per se: matters concerning issues such as black
joblessness, incarceration, and the link between nonmarital childbearing
and poverty.24 But we can nevertheless understand them to bear on the
extent to which marriage, if not a formal gateway to other rights, speaks to
the range of entitlements that inform full belonging.
The Report’s reflections on “culture,” not insignificantly, address a
different, yet still consequential dimension of citizenship. Here, Moynihan
took the position that, while perhaps initially born of structural inequity,
“[w]eaknesses of [the black] family structure” had taken on an independent
life, advanced by a culture and pattern of individual decisionmaking, whose
long-term impacts could not easily be reversed.25 In other words, the
“deterioration of the Negro family,” in his mind, had progressed to the
18
CATHERINE J. DENIAL, MAKING MARRIAGE: HUSBANDS, WIVES AND THE AMERICA STATE
IN DAKOTA AND OJIBWE COUNTRY 12 (2013).
19
LAURA F. EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF
RECONSTRUCTION 47 (1997).
20
Id. at 46-47.
21
See id. at 56 (noting assertions of black leaders during this period that “we are on trial before
the tribunal of the nation” and exhortations to comply with prevailing intimacy norms as a way of
demonstrating “we are worthy to be a free, self-governing people”).
22
WILSON, supra note 5, at 105-28 (discussing structural and cultural arguments made by the
Moynihan Report and the reactions to them).
23
MOYNIHAN REPORT, supra note 6, at 47.
24
See, e.g., Sara McLanahan, Fragile Families and the Reproduction of Poverty, 621 ANNALS
AM. ACAD. POL. & SOC. SCI. 111 (2009) (discussing fragile nonmarital families and poverty); WILSON,
supra note 5.
25
MOYNIHAN REPORT, supra note 6, at 30.
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point that it was “capable of perpetuating itself without assistance from the
white world.”26
Poor black families, in Moynihan’s estimation, had become ensnared in
a debilitating “tangle of pathology” that required immediate “national
action.”27 The Report offered a range of support for this conclusion, but
found its strongest proof in the “matriarchal pattern of so many Negro
families,” which the Report associated with both a “startling increase [in]
welfare dependency” and irresponsible reproduction.28 For Moynihan, the
disproportionately high numbers of female-headed black households served
primarily to promote “anti-social behavior” and “retar[d] the progress of
[African Americans] as a whole.”29 The “matriarchal structure” of the black
community not only “impose[d] a crushing burden on the Negro male,”
but, in his view, also “perpetuate[d] the cycle of poverty and deprivation”
from which most black youth could never hope to escape.30
For good reason, much of the criticism leveled at the Report concerned
those sections advancing the theory just described—its embrace of
patriarchy, as well as its principally race-based account of family
disfunction.31 They paint, as the initial response to the Report attests, an
exceedingly problematic picture of black family life. But they also tell a
story about the performative dimensions of family and citizenship, and the
social font of marriage more specifically that bears elaboration.
The former slaves mentioned earlier, those individuals who emphasized
the potential for freedpersons to perform readines for citizenship by
comporting with prevailing marriage norms,32 sought to exploit the extent
to which laws pertaining to family, as well as citizenship are performative
in nature.33 As Professor Clare Huntington has explained, by engaging in
repeated acts such as wearing a wedding ring or parenting a child,
individuals communicate messages about what it means, for example, to be
married or to be a parent.34 Repetition of such performances “shape what
sociologist Erving Goffman called a social front—a shorthand for
conveying information about a category of people” that “tend[s] to be
26
Id. at 5, 47.
27
Id. at 29, 47 (“In a word, a national effort towards the problem of Negro Americans must be
directed toward the question of family structure”).
28
Id. at 8, 12, 31.
29
Id. at 29, 30.
30
See id.; see also DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION,
AND THE MEANING OF LIBERTY 16 (1997) (noting that “Moynihan thus endowed poor Black women—
the most subordinated members of society—with the power of a matriarch”).
31
Frank F. Furstenberg, If Moynihan Had Only Known: Race, Class, and Family Change in
the Late Twentieth Century, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 94 (2009)
32
See supra text accompanying notes 19–21.
33
See Clare Huntington, Staging the Family, 88 N.Y.U. L. REV. 589 (2013).
34
Clare Huntington, Obergefell’s Conservatism: Reifying Familial Fronts, 84 FORDHAM L.
REV. 23, 24 (2015).
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narrow, reflecting the typical and sometimes idealized performance” and,
very often, traditional norms.35
We can understand Moynihan to have made stragegic use of such fronts
in drafting the Report. His appraisal of the potential dangers inherent in
“the often reversed roles of husband and wife” in African America and his
predictions about what nonmarital births mean for black citizenship
resonate partly because of the norms regarding gender, sexuality, and
family that traditional marriage has established.36 Thought by earlier
generations to inform good governance, citizenship, and successful
functioning of family units, such norms constituted the yardstick against
which the nonmarital families addressed in the Report were evaluated.37
For example, marital norms determined the extent to which black female
heads-of-household—the subgroup Moynihan focused on—were classified
as hypersexual or nurturing, resourceful or domineering, “good” or “bad”
citizens. Ultimately, such norms shape the metrics against which all
relationships—whether marital or nonmarital—are measured.
At bottom, the overall theory of race and nonmarital disorder featured
in the Moynihan Report—in both its structural and “cultural” dimensions—
derives a good deal of its content from an opposing narrative of marriage as
primarily black citizenship enhancing. The problem is that, while
pervasive, this underlying narrative is deeply flawed. In reality, marriage in
this country has very often been deployed as a tool of racial subordination
for African Americans and, as I explain elsewhere, for groups such as
Native Americans, Puerto Ricans, and Asian Americans.38 Images of former
slaves “rush[ing] to marry [upon Emancipation], often in mass
ceremonies,” as many freedpersons did, tend to be the touchstone for those
who see marriage as a kind of black liberation.39 But focusing on this
snapshot in time badly obscures the full history of black marriage in
America.
The limited aperture that the moment of Emancipation provides allows
no room, for example, to consider slavery and the extent to which the
exclusion of black slaves from marriage during that period reinforced not
only their designation as non-citizens, but also the degree to which they
were regarded as sub-human.40 Nor does that framework easily facilitate
inquiries into race and marriage-related laws and policies introduced much
later in time. In other works, I examined a 1920s Richmond, Virginia
ordinance that went so far as to determine a non-white person’s eligibility
35
36
37
Id.
MOYNIHAN REPORT, supra note 6, at 5, 30, 47.
See CATHERINE J. DENIAL, MAKING MARRIAGE: HUSBANDS, WIVES AND THE AMERICA
STATE IN DAKOTA AND OJIBWE COUNTRY 12 (2013).
38
Lenhardt, supra note 15, at 1324–35.
39
AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE, AND THE
MARKET IN THE AGE OF SLAVE EMANCIPATION 44 (1998).
40
See Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum Perspective, 51
STAN. L. REV. 221, 229, 239–40 (1999) (discussing, inter alia, legal incapacity of slaves to marry).
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to live in a certain neighborhood by referencing the antimiscegenation law
then in effect.41 By referencing antimiscegenation law, the ordinance
obviously functioned to shape notions of ideal race and family.42
Furthermore, insofar as it facilitated racial segregation and determined
access to shelter, wealth, and social capital over time on the basis of race,
the ordinance also structured future racial disadvantage.43 Like laws
pertaining to education, housing, or employment, marriage has effectively
functioned to marry African Americans to a tier of second-class citizenship
in which they still reside.44 Without an orientation that treats a broad range
of family-related systems as relevant inquiries into citizenship, the import
and structural effects of ordinances such as the Richmond ordinance would
likely otherwise go unnoticed.45
Significantly, even aspects of the Post-Emancipation Period are
occluded by a narrow focus on the moment of former slaves’ entrance into
legal marriage. Research by historians and legal scholars, such as Katherine
Franke, suggests that Reconstruction-era marriage laws often functioned
more to reassert control over former slaves than to affirm their intimate
choices and new status as citizens.46 Whites saw marriage as a way to
reconstruct the South, as well as the nation overall.47 It afforded them a
means of reasserting regulatory control over black lives and—as norms at
that time dictated that any dependency be internalized by households, not
government—of evading responsibility for tremendous poverty of families
emerging from bondage.48 Officials at all levels of government thus
devoted themselves to the goal of “creating black husbands and wives,”
using coercion to induce marriage, and harsh punishments wherever
possible to ensure compliance with its norms.49 Under Southern Black
Codes, for example, black men unable to curb the indigence of their
families often found themselves imprisoned and their children involuntarily
41
See Lenhardt, supra note 15, at 1339–40, n.128; see also R.A. Lenhardt, According to Our
Hearts and Location: Toward a Structuralist Approach to the Study of Interracial Families, 16 J.
GENDER RACE & JUST. 741, 763–64 (2013). See Richmond v. Deans, 37 F.2d 712 (4th Cir. 1930).
42
For research on race effects of antimiscegenation law, see, e.g., RACHEL F. MORAN,
INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 17–28 (2001); RANDALL
KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 216–23 (2003).
43
See Lenhardt, supra note 15, at 1339–40, 1335.
44
Id.
45
See also id. at 1338–39, n.127 (noting an example of North Carolina law that incorporated
antimiscegenation law in a Jim Crow provision determining eligibility for school enrollment).
46
Id. at 1327; Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of
African American Marriages, 11 YALE J. L. & HUMAN. 251, 253 (“Rather than escaping from the
coercive power of the state, the newly emancipated former slaves encountered the state in new
institutional garb. Marriage … provides the best … example of the degree to which African Americans
had to be ‘domesticated’ before they could be admitted into society as full citizens”).
47
R.A. Lenhardt, Race, Dignigty, and the Right to Marry, 84 FORDHAM L. REV. 53, 57 (2015);
LAURA F. EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF
RECONSTRUCTION 27 (1997); Franke, supra note 46, at 294.
48
Franke, supra note 46, at 302; EDWARDS, supra note 47, at 33.
49
Lenhardt, supra note 15, at 1327; Franke, supra note 46, at 282-90.
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placed in “apprenticeships.”50 Such so-called punishments, which were
clearly thinly veiled attempts to replicate antebellum labor arrangements,
effectively reinforced notions of black criminality and pathologized black
need and “dependency” in ways that public institutions relating to criminal
justice, public benefits, and child welfare arguably still reflect.51
In sum, the Moynihan Report’s forecast of nonmarriage-induced civic
doom trades on a promise of full citizenship through marriage that has
never been fulfilled. Even the very brief history offered in this Section
shows that black marriage has not been uniformly citizenship enhancing;
indeed, it has very often been citizenship diminishing. This, of course, does
not mean that poverty and nonmarital childbearing posed no difficulties for
the black families that Moynihan considered in 1965. But it does suggest
that we need to reevaluate the true challenges to inclusion that black
families faced then and that other similarly situated African Americans face
today.
III. BLACK MARRIAGE INEQUALITY IN THE AGE OF
OBERGEFELL
Is access to marriage rights necessary to ensure full belonging in the
twenty-first century? In Obergefell, the Court, with Justice Kennedy
writing for the majority, answered this question in the affirmative, holding
that lesbian and gay couples are entitled to “equal dignity” and access to
marriage, an “enduring bond, [through which] persons together can find
other freedoms, such as expression, intimacy, and spirituality,” irrespective
of their sexual orientation.52 In doing so, the Court resolved one of the most
important questions of our day. But it raised other questions, both for
LGBT Americans and for others. Among these is the question whether,
without more, merely ensuring formal access to marriage rights can ever be
adequate. In other words, can we reasonably expect marriage to be
citizenship enhancing for African Americans, gay or straight, today?
On the numbers, it seems pretty clear that the answer to this question is
no. If anything, marriage inequality seems likely to be the norm for blacks
for the foresseable future. Today, African Americans are the most
50
Mary Farmer-Kaiser, “With a Weight of Circumstances Like Millstones About Their Necks”:
Freedwomen, Federal Relief, and the Benevolent Guardianship of the Freedmen’s Bureau, 115 VA.
MAG. HIST. & BIOGRAPHY 413, 416, 428–29 (2007).
51
ROBERTS, supra note 30, at 220–21, 223 (discussing, inter alia, pathologization of black
need); R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L.
REV. 803, 851-64 (2004) (discussing stereotypes about black criminality). For a discussion of how the
stigma attached to black dependency plays out in child welfare, see Leah Hill, Do you See What I See—
Reflections on How Bias Infiltrates the New York City Family Court—The Case of the Court Ordered
Investigation, 40 COLUM. J.L. & SOC. PROBS. 527 (2006–2007).
52
Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).
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unmarried group of any in the country.53 While marriage decline affects all
groups,54 it has been steepest in African America. In 2008, black marriage
rates stood at merely 32 percent, down from 61 percent in 1960.55 As with
other groups, marriage rates tend to be lowest among poor blacks and those
with low levels of educational attainment. Still, research makes it plain that
“blacks in all educational groups [are] less likely to be in intact
marriages”56 or never to have marriage at all.57
Loving relationships between blacks—whether romantic, parental, or
involving other caregiving—increasingly operate outside of legal marriage,
a space that decisions like Obergefell, even if unintentionally, have
rendered even more non-normative.58 Studies indicate that African
Americans are more likely than their white counterparts to cohabit.59 They
are also more likely to have and parent children within nonmarital
relationships.60 In the 1960s, the nonmarital black birth rate that raised
alarms for Moynihan was 20 percent.61 Due to a nationwide increase in
nonmarital births, that rate of 20 percent has now been surpassed by the
white population, whose percentage of nonmarital birth was only 2–3
percent in the early 1960s.62 Significantly, the percentage of black–
nonmarital births has nearly tripled since the 1960s.63 Currently, nonmarital
births among black high school graduates comprise more than 70 percent of
all black births in the United States.64
Stereotypes about black “welfare queens” and “deadbeat dads” might
suggest that not just socioeconomics, but also attitudes about family and
53
D’VERA COHN ET AL., PEW RESEARCH CTR., NEW MARRIAGES DOWN 5% FROM 2009 TO
2010: BARELY HALF OF U.S. ADULTS ARE MARRIED—A RECORD LOW 8 (2011),
http://www.pewsocialtrends.org/files/2011/12/Marriage-Decline.pdf.
54
See PEW RESEARCH CTR., THE DECLINE OF MARRIAGE AND RISE OF NEW FAMILIES 9 (Nov.
18, 2010) [hereinafter DECLINE OF MARRIAGE], http://www.pewsocialtrends.org/files/2010/11/pewsocial-trends-2010-families.pdf (noting overall decrease in the percentage of married Americans fell
from 72 to 52 percent between 1960 and 2008).
55
Id.
56
See generally JUNE CARBONE & NAOMI CAHN, MARRIAGE MARKETS: HOW INEQUALITY IS
REMAKING THE AMERICAN FAMILY (2014); see also INST. FOR AM. VALUES & NAT’L MARRIAGE
PROJECT, THE STATE OF OUR UNIONS: WHEN MARRIAGE DISAPPEARS: THE NEW MIDDLE AMERICA ix,
54 (W. Bradford Wilcox & Elizabeth Marquardt eds., 2010) [hereinafter WHEN MARRIAGE
DISAPPEARS].
57
DECLINE OF MARRIAGE, supra note 54, at 29.
58
For more on this, see Huntington, supra note 34, at 27-30.
59
CYNTHIA GRANT BOWMAN, UNMARRIED COUPLES, LAW, AND PUBLIC POLICY 112 (2010).
60
Kristen Harknett & Sara S. McLanahan, Racial and Ethnic Differences in Marriage After the
Birth of a Child, 69 AM. SOC. REV. 790, 790 (2004).
61
See GREGORY ACS ET AL., THE URBAN INST., THE MOYNIHAN REPORT REVISITED 4 (2013)
[hereinafter MOYNIHAN REVISITED], http://www.urban.org/UploadedPDF/412839-The-MoynihanReport-Revisited.pdf.
62
Id. at 5; see also Robert A. Hummer & Erin R. Hamilton, Race and Ethnicity in Fragile
Families, THE FUTURE OF CHILD., Fall 2010, at 113, 116 (Among white women, the share of unmarried
births in 1970 (6 percent) more than quadrupled by 2006 (27 percent)).
63
MOYNIHAN REVISITED, supra note 61, at 4.
64
WHEN MARRIAGE DISAPPEARS, supra note 56, at 56, fig.S2.
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marriage, in particular, might place African Americans outside the main.
Research by Kathryn Edin and Maria Kefalas, however, suggests
otherwise; their interviews with poor women indicate that, if anything,
“[t]he poor avoid marriage not because they think too little of it, but
because they revere it.”65 African Americans consistently rate marriage as
important and are very likely to express a desire to marry in the future.66
Uncertainty and fears about not fulfilling traditional marriage roles,
however, appear to prevent low-income, black heterosexual couples from
actually marrying.67 They decouple childbirth and marriage because the
belief is that to “do [marriage] ‘right’ [they must] begin with a solid
economic footing.”68
Put differently, structural inequality, along with traditional marriage
norms, has erected a barrier to marriage that only increasingly low numbers
of African Americans can scale. We tend to think of marriage inequality as
distinct from the kinds of structural racism and disadvantage that we have
grown accustomed to discussing in places like Ferguson, Missouri, or even
New York City, where black men and women have tragically lost their lives
at the hands of white police officers. Yet, research suggests this same
inequality informs the increase in black–nonmarital families, what
sociologists now refer to as “fragile families.”69 Structural inequality—in
areas such as housing, employment, education, and mass incarceration—
works in ways that keep marriage out of reach for many poor blacks. As I
explained in another article, “[f]or poor black women, socioeconomic
circumstances translate into very high levels of ‘uncertainty’ in their
intimate relationships and lives more broadly.”70 In addition to placing
tremendous strain on adults and children alike in nonmarital families,71 it
significantly reduces the chances that a black women will find a romantic
partner or, for that matter, achieve some measure of financial security.72
That modern marriage reflects black inequality is undeniable. So too
are the ways in which marriage and other family law systems increasingly
function to structure that inequality.73 For example, in a recent article, I
urged a focus on the incident involving the shooting death of Walter Scott
65
See KATHRYN EDIN & MARIA KEFALAS, PROMISES I CAN KEEP: WHY POOR WOMEN PUT
MOTHERHOOD BEFORE MARRIAGE 207 (2005).
66
Id. at 132, 237.
67
LINDA C. MCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND
RESPONSIBILITY 138–44 (2006).
68
Id. at 140–41.
69
See McLanahan, supra note 24, at 111.
70
Lenhardt, supra note 15, at 1351 (citing Linda M. Burton & M. Belinda Tucker, Romantic
Unions in an Era of Uncertainty: A Post-Moynihan Perspective on African American Women and
Marriage, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 132, 135–39 (2009)) (describing the problem of
“uncertainty” and its impact on the marriage choices of blacks).
71
Hummer & Hamilton, supra note 62, at 124.
72
See Harknett & McLanahan, supra note 60, at 804, 808.
73
See R.A. Lenhardt, Structuring Families, Structuring Race, BALKINIZATION (Oct. 30, 2014,
10:38 PM), http://balkin.blogspot.com/2014/10/structuring-families-structuring-race.html.
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[Vol. 25:347
Southern California Interdisciplinary Law Journal
in Charleston, South Carolina.74 On the surface, few would make a
connection between Scott’s death upon being shot as he ran away from a
white police officer and family law.75 But the reason Scott ran turns out to
be quite salient here. Newspaper reports filed in the wake of the incident
suggest that Scott ran because he feared arrest on an outstanding warrant to
pay almost twenty thousand dollars in back child support.76 Reports suggest
that, more than any payments, Scott sought to avoid jail and the likelihood
that his incarceration would lead to the loss of his employment, as it had on
another a similar occasion.77 The child support obligations at issue in
Scott’s case admittedly did not concern marriage directly, as they apply to
the married and unmarried alike. At the same time, though, child support
requirements reflect patriarchal norms privileging patriarchal arrangements
like those touted by Moynihan, financial support, and the internalization of
dependency that traditional marriage reflects. Such norms work in ways
that render existing policy overly punitive and blind to the unique
circumstances that apply to communities of color constrained in multiple
ways by structural racial inequality.78
IV. WHY NONMARITAL BLACK FAMILIES MATTER
Advocacy groups such as “Black Lives Matter”—which have been
instrumental in raising awareness about the race effects of mass
incarceration and policing methods deployed in many communities of
color—have, along with scholars and policymakers, increasingly begun to
bring a critical lens to issues of racial inequality in other areas. Important
work in this regard has, for example, helped to underscore the need to see
places like Ferguson in a broader context that implicates not just police
practices, but also issues of zoning, education, and housing policy, among
other things.79 Our conversations have begun to open beyond the doctrinal
siloes privileged in current Supreme Court jurisprudence. They have not,
however, begun meaningfully to incorporate inquiries into family law and
racial inequality in the way that the statistics set forth in the previous
section suggests that they should. This needs to change. And our starting
point for such a shift should be black–nonmarital families.80
74
Race, Dignity, and the Right to Marry, supra note 16, at 61-62.
75
Michael S. Schmidt & Matt Appuzo, South Carolina Officer Is Charged with Murder of
Walter Scott, N.Y. TIMES (Apr. 7, 2015), http://www.nytimes.com/2015/04/08/us/south-carolinaofficer-is-charged-with-murder-in-black-mans-death.html.
76
Frances Robles & Shaila Dewan, Skip Child Support. Go to Jail. Lose Job. Repeat., N.Y.
TIMES (Apr. 19, 2015), http://www.nytimes.com/2015/04/20/us/skip-child-support-go-to-jail-lose-jobrepeat.html.
77
Id.
78
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