Intersectionality and the constitution of family status.

• Author: Mayeri, Serena

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 nonmarital 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.

At particular historical moments, advocates have seized upon social movement victories and associated developments in constitutional doctrine--a brief openness to race-based disparate impact and economic justice claims, the emergence of sexual privacy and sex equality principles--to expose and exploit the intersections between race, class, gender, and family status-based inequality. Plaintiffs and their lawyers made race- and poverty-based discrimination arguments against laws and policies that distinguished between individuals and families based upon marital status. For instance, when advocates challenged "illegitimacy" penalties such as the denial of wrongful death and workers' compensation, inheritance rights, and government benefits to nonmarital children and their parents, they often argued that such policies had a disparate impact on families of color. Indeed, all of the early illegitimacy cases were brought by African American women and their children, but no Supreme Court opinion so much as mentions race.

Intersectional harms often underpinned legal assaults on family status inequalities. Challenges to welfare policies that capped AFDC benefit amounts, as well as lawsuits against "suitable home" and "substitute father" policies included race (and sometimes "family status") discrimination claims. Women of color and concerns about racially disparate impact played a prominent if often unspoken role in litigation challenging mandatory paternity disclosure for unmarried women poor enough to be eligible for public assistance. Constitutional and statutory challenges to policies excluding "unwed mothers" from employment frequently combined race and sex discrimination claims, contending that such restrictions disproportionately burdened women of color and frequently betrayed invidious racial motivation.

Courts often decided these cases without engaging the race discrimination claims, and the racial context frequently receded from judicial consciousness as cases moved up through appellate courts. That is not to say that the racial subtext had no impact on legal decisionmakers, however: there is evidence that it did, sometimes to plaintiffs' advantage. As the 1970s wore on, though, plaintiffs more frequently framed their claims as sex discrimination: they emphasized the severe disparate impact on women of laws penalizing nonmarital parenthood, given women's disproportionate responsibility for the care and support of children generally and nonmarital children in particular. Nonmarital fathers' claims, too, usually sounded in terms of sex discrimination (or due process, in the case of parental rights) rather than racial discrimination. Even so, women and men of color remained at the forefront of challenges to laws that discriminated based on marital status and sex.

Race and sex discrimination arguments were not inherently more progressive than other framings of plaintiffs' constitutional claims, of course. Many of the race- and poverty-based discrimination arguments promoted by opponents of illegitimacy classifications in the late 1960s, for instance, were perfectly compatible with the prevailing judicial trope of innocent (poor, black) children suffering unjustly for their parents' "sins." And applying formal sex equality principles to nonmarital fatherhood risked obscuring the disproportionate burden mothers tended to bear for the care and support of nonmarital children, as well as economic, social, and physical power differentials between men and women. The political valence of equality arguments depended on their substantive content. To the extent that constitutional claims derived from the lived experiences of individuals and families shaped by racial, gender, sexual and economic subordination, they could expand the meaning of principles such as equality, liberty, autonomy, and due process. When plaintiffs invoked the Constitution to vindicate a right to engage in nonmarital sex without reprisal from the government or a private employer; to call upon the state for benefits regardless of marital or birth status; or to exercise parental rights over nonmarital children, they laid claim to the universal significance of their particular experience.

The courts' failure to recognize claims based on these intersectional experiences had wide-ranging and lasting consequences for equality law. Those consequences are visible in the Court's approach to illegitimacy classifications, which sees their primary harm as punishing "innocent children" for parental "transgressions," leaving untouched the legitimacy of privileging marriage in public and private law. They are visible in the federal constitutional jurisprudence of nonmarital fatherhood, which reflects the values of the divorced fathers' rights movement and of traditional adoption advocacy more than feminists' concerns about women's subordination, or poverty lawyers' desire to protect poor families from state intrusion. They are visible in state welfare policies that find no constitutional harm in requiring mothers to cooperate with authorities in identifying and seeking child support from impoverished fathers. We can also see these consequences in the Supreme Court's same-sex marriage jurisprudence, which characterizes unmarried individuals and nonmarital families as legally, socially, and economically inferior. Marital supremacy is alive and well, even in an age of marriage equality.

In previous work. I have provided detailed historical accounts of constitutional litigation campaigns against illegitimacy penalties that targeted nonmarital children and their parents, and of debates over the constitutionality of restrictions on nonmarital fathers' parental rights. (1) This Article builds on those accounts in an effort to think systematically about why the Supreme Court's constitutional jurisprudence of the family has so little to say about the status-based inequalities that prompted plaintiffs to bring their claims and shaped advocates' strategy.

Part I describes how race- and poverty-based discrimination arguments figured prominently in early constitutional litigation challenging "illegitimacy"-based classifications and asserting welfare rights, but receded from view by the early 1970s. Notwithstanding the Court's silence on the relationship between race, poverty, sex equality, and family status, African American women attempted to redefine women's sexual and economic citizenship in the 1970s based on the intersectional experience of unmarried mothers of color, as Part II chronicles. Profound disagreements persisted, however, among advocates and policymakers who contested the relationship between poverty and family structure, and the role of the state in affecting both. Cases concerning the constitutional rights of unmarried fathers became a battleground for competing conceptions of parenthood outside of marriage. Part III explores how unmarried fathers of color presented constitutional claims that reflected the intertwined impact of race, national origin, gender, and class, with little success. The Article concludes by assessing the consequences of constitutional law's erasure of the intersectional experiences that spurred family status equality claims.

1. THE DECLINING SIGNIFICANCE OF RACE IN WELFARE AND ILLEGITIMACY CASES

   No educated observer of the politics of public assistance and nonmarital childbearing in the 1960s could fail to acknowledge the significance of race for welfare and family policy. In the preceding decades, African American women and children gained access to Aid to Dependent Children (ADC) funds formerly reserved for the presumptively white "'deserving poor," and political resistance intensified accordingly. (2) In the years after Brown, resistance to racial desegregation efforts frequently took the form of moral regulations targeting "illegitimacy," as legal historian Anders Walker has shown. (3) Proposed legislation at the state and local level included the denial of public assistance, institutionalization of nonmarital children, and sterilization and imprisonment of their parents. (4) The most notorious of these retaliatory measures, Louisiana's 1960 "suitable home" law, purged thousands of "illegitimate" black children from welfare rolls and sparked a national outcry. (5) Winifred Bell's influential 1965 study. Aid to Dependent Children, left no doubt of the connections between massive resistance and punitive anti-welfare measures. (6) The Moynihan Report, released the same year, solidified popular understandings of a connection between family structure, poverty, and violence. (7) By 1968, journalist Fred P. Graham wrote that "'[i]llegitimacy," like 'crime in the streets,' is becoming a substitute in many minds for the 'Negro problem.'" (8)

   Child welfare advocates had long criticized illegitimacy penalties for unjustly imposing...