Is This Any Way to Make Civil Rights Law? Judicial Extension of 'Marital Status' Nondiscrimination to Protect Cohabitants

41 Pages Posted: 23 Oct 2018 Last revised: 21 Jun 2019

See all articles by Helen M. Alvare

Helen M. Alvare

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 22, 2018

Abstract

In recent years, civil rights legislation has been the subject of significant attention. In part, this is due to the emergence of novel and contested interpretations of longstanding statutes offering protection against discrimination based upon sex and marital status. Courts and agencies are infusing new meanings into old laws in response to questions provoked by new behaviors. One new question concerns whether to interpret “marital status” nondiscrimination as protecting an unmarried couple’s cohabiting. Four state courts and one federal court have answered “yes.” But these cases work against uniting Americans behind civil rights laws - laws that ought to be a point of national pride. Because of their mistakes in the areas of statutory interpretation and separation of powers, they appear starkly ideological. They also do a poor job reflecting upon the proper balance with religious freedom.

Americans may wish to protect cohabiting as a “marital status.” If so, this should be accomplished by a legislative process that can investigate the myriad social welfare questions cohabitation provokes: - especially regarding possible effects on marriage and children’s stability. Cohabitation-protective cases cannot and do not accomplish this. Instead, they play word games and manipulate statutory canons. They tell religious citizens what they are “really” thinking no matter what the citizen believes in her own mind. They also insist, against settled law, that the state, and not the religious citizen, knows the nature of the burden on the free exercise of religion created by a particular civil right. And throughout, such cases fashion social policy, while ignoring the vast amount of data and public opinion necessary to make informed policy. In short, they do civil rights no favor.

Keywords: discrimination, cohabitation, marriage, statutory interpretation, children, legislative intent, parents, separation of powers, family law, religious freedom

JEL Classification: J12, J13, J15, J16, K36, Z12

Suggested Citation

Alvare, Helen M., Is This Any Way to Make Civil Rights Law? Judicial Extension of 'Marital Status' Nondiscrimination to Protect Cohabitants (October 22, 2018). Georgetown Journal of Law & Public Policy, Volume 17, Number 1 (Winter 2019); George Mason Legal Studies Research Paper No. LS 18-31. Available at SSRN: https://ssrn.com/abstract=3271277

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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