Marriage (In)Equality and the Historical Legacies of Feminism
12 Pages Posted: 17 Nov 2015
Date Written: November 2015
In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.
Keywords: Constitutional law, Supreme Court of the United States, SCOTUS, Anthony Kennedy, marital supremacy, gender equality, sex discrimination, Ruth Bader Ginsburg, second-wave feminism, legal privileging of marriage, nonmarital status
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