Marital Supremacy and the Constitution of the Nonmarital Family

77 Pages Posted: 19 Oct 2015

See all articles by Serena Mayeri

Serena Mayeri

University of Pennsylvania Carey Law School

Date Written: June 1, 2015


Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy — the legal privileging of marriage — through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their parents. By reaffirming the legitimacy of governmental objectives such as discouraging illicit sex and promoting traditional marriage, courts obscured the ways in which marital supremacy injured adults as well as children, reinforcing racial, gender, and economic inequality and circumscribing sexual and reproductive freedom.

Using court documents and archival sources, this Essay uncovers alternative visions of the harm of illegitimacy penalties offered by advocates and activists who framed these laws and practices as centrally connected to poverty, systemic racial oppression, and the subordination of women. Civil rights and poverty lawyers spotlighted the disparate impact of illegitimacy penalties on poor families of color, especially African Americans in the South. Feminists emphasized how these laws disproportionately burdened women — who often bore primary responsibility for nonmarital children’s care and support — curtailing their sexual, reproductive, and economic freedom. The failure of these broader accounts of the harms of illegitimacy penalties to influence judicial opinions impoverished our constitutional politics in ways that reverberate today. In a world where marriage is both a privileged status and a status of the privileged, marriage equality that rests upon non-marriage’s ignominy risks reinforcing the many other status inequalities that taint the legacy of marital supremacy.

Keywords: Constitutional law, family law, Supreme Court of the United States, SCOTUS, racial and sexual discrimination, illegitimacy penalties, illegitimate children, bastardy, unwed mothers and fathers, paternity, nonmarital families, sexual freedom, privacy, equal protection, marital status

Suggested Citation

Mayeri, Serena, Marital Supremacy and the Constitution of the Nonmarital Family (June 1, 2015). California Law Review, Vol. 103, p. 1277, 2015, U of Penn Law School, Public Law Research Paper No. 15-29, Available at SSRN:

Serena Mayeri (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6728 (Phone)

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