Intersectionality and the Constitution of Family Status
Constitutional Commentary, Vol. 32, Pg. 377, 2017.
37 Pages Posted: 7 Sep 2018
Date Written: 2017
Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing, much less crediting, their constitutional significance. Moreover, constitutional family status jurisprudence mostly overlooked claims to sexual autonomy, sex equality, and racial and economic justice arising from plaintiffs’ lived experience of intersecting status-based harms. The result is a constitutional family law canon that often obscures the social reality of legal regimes that elevate marriage at the expense of equality.
Keywords: Constitutional law, family, legal history, civil rights, racial & sexual discrimination, Supreme Court of the United States, SCOTUS, marital status, illegitimacy penalties, illegitimate children, bastardy, unwed mothers & fathers, paternity, nonmarital fatherhood, equal protection, economic justice
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