برابری ازدواج و میراث های تاریخی فمینیسم Marriage (In)equality and the Historical Legacies of Feminism

For a legal historian of twentieth-century feminism, Obergefell’s valence is especially complex. This Essay measures Obergefell against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral, and the lesserknown, less successful struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell indirectly acknowledges marriage equality’s debt to the former legacy, and utterly disregards the latter. But the history of transformational change invoked in Obergefell suggests the potential for marriage equality to become more than an affirmation of marriage’s legal supremacy. *** The feminist legacy most apparent in Obergefell is the transformation of marriage law. Justice Kennedy’s opinion endorses wholeheartedly the historical account articulated by feminist scholars, most prominently Nancy Cott, since the turn of the twenty-first century.3 Marriage, on this view, is a dynamic institution, transformed since the Founding from an inegalitarian, racially exclusive, socially mandatory, and presumptively permanent status by state-level reforms and federal constitutional intervention. Exhibit A in this story of evolutionary change is the abolition of coverture and the replacement of highly differentiated and unequal rights and duties for husbands and wives with gender-neutral partnerships that spouses may enter and exit voluntarily. Historically, as a matter of formal law if not always social reality, marriage prescribed gender-differentiated and unequal roles for husbands and wives and the subordination of wives’ legal identity through coverture.4 The reigning marital bargain required men to provide economic support to their wives and children; in exchange, women owed their husbands personal services such as homemaking, caregiving, and consortium. At common law, married women could not make contracts, hold property in their own names, sue or be sued. A husband’s prerogatives included the right to determine the family’s domicile, to chastise wayward dependents, and to demand sexual access to his wife. Thanks both to feminist struggle and broader economic and social changes, many of married women’s formal legal disabilities receded over the course of the nineteenth and early twentieth centuries. Married Women’s Property Acts, the Nineteenth Amendment, and early antidiscrimination laws blunted the sharpest edges of coverture.5 But as late as 1961 the Supreme Court famously declared that women’s role “as the center of home and family life” justified exempting them from jury service,6 and the sex-differentiated laws of marriage and divorce remained on the books in most jurisdictions.7 Laws and government policies, including the provision of key social insurance benefits, not only assumed but encouraged and rewarded a male breadwinner/female homemaker division of labor.8 The reigning liberal consensus followed the 1965 Moynihan Report in recommending that black families adopt this white middle-class patriarchal ideal or risk a dismal descent into poverty, illegitimacy, and violence.9 By the 1970s, many policy makers worried that the “culture of pathology” that Moynihan saw in the “Negro family” would spread across American society if women achieved the equal employment opportunity feminists sought.10 Feminists such as Pauli Murray and Eleanor Holmes Norton countered with their own vision of family life, anchored by the egalitarian marriages African American middle-class families pioneered.11 They insisted that women’s equal opportunity in the workplace and at home was essential, not antithetical, to racial progress, and that black women’s strength and self-sufficiency could serve as a model for white women constrained by restrictive sex-role expectations. A litigation campaign led by law professor and ACLU attorney Ruth Bader Ginsburg wrote this vision of egalitarian marriage into constitutional law.12 Though feminists did not win ratification of the federal Equal Rights Amendment (ERA), they achieved many of the ERA’s original goals through state-level reforms to marriage and divorce law, and through federal and state constitutional rulings that applied heightened judicial scrutiny to sex-based classifications.13 In cases such as Frontiero v. Richardson, 14 Weinberger v. Wiesenfeld, 15 and Califano v. Goldfarb, 16 Ginsburg and her allies persuaded the Court that the federal government could not constitutionally distinguish between husbands and wives or between widows and widowers in the allocation of military and Social Security benefits. By the 1980s, as a matter of formal law—though not of social reality—feminist advocacy made marriage a gender-neutral institution, a presumptively equal partnership of spouses with identical, reciprocal legal rights and responsibilities.17