Discrimination In and Out of Marriage
54 Pages Posted: 15 Feb 2018
Date Written: February 3, 2018
The Supreme Court’s decision in Obergefell v. Hodges marks a tremendous victory for lesbian, gay, bisexual, and transgender people. Some scholars suggest, however, that in addressing one form of discrimination, the Court derailed efforts to dismantle another—the privileging of marriage over non-marriage.
By excavating the forgotten history of marital status advocacy, this Article complicates the progress-and-decline narrative of the law of non-marriage. Using original archival research, this Article illuminates how the conventional narrative of non-marriage overstates the progressive nature of its past. Statutes prohibiting marital status discrimination are cited as examples of earlier attempts to unseat marriage from its privileged position. This uncovered history demonstrates that marital status advocacy was a critical step on the road to greater equality. But this work primarily sought to address discrimination within marriage, not discrimination against those living outside of it.
This Article also sheds light on the future of non-marriage. As a result of earlier marital status activism, discrimination within marriage is much less pronounced today. Many of the statutes and practices that required differential treatment of husbands and wives have been repealed or invalidated. These remarkable successes can be attributed to the multi-dimensional strategy utilized by advocates. This strategy holds much promise for the contemporary struggle to address discrimination against those living outside of marriage.
Keywords: marriage, nonmarriage, gay, lesbian, Obergefell, marital status, discrimination, credit, feminist, equality, ERA, equal protection
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