For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Kristin
Collins 

Serena
Mayeri’s excellent new book Marital Privilege charts the transformation
of marriage as a central fixture in American law and social policy from the
1960s to 2003. Starting in the 1960s, various groups and individuals challenged
marriage’s hold on Americans’ options for family formation, their sex lives, and
their access to state created entitlements and benefits. These challenges were not
part of an organized political or legal movement, as one often finds in stories
of legal transformation, but they were numerous and sustained. Liberal
feminists challenged the sex-asymmetrical rights and duties that marriage
entailed. Black feminists were focused on securing greater autonomy in deciding
whether and when to have children – in or out of marriage – and sought supportive
communities rather than government surveillance. Mothers and fathers argued that
the status designation of illegitimacy harmed children, in part by creating a
legal presumption that their fathers had no interest in their wellbeing.
Individuals who sought to form non-traditional families challenged family-based
zoning laws and housing regulations that were premised on the marital family
norm. Lesbian and gay couples struggled for legal recognition and rights in
just about every domain of life. Perhaps most famously, individuals who sought
to marry across the color line challenged restrictions on interracial marriage.

With
these challenges to the regulation of marriage and its legal primacy in view, Mayeri
identifies a puzzle: For a good 40 years, as marriage’s place in American law
and social policy was contested from multiple directions, and as marriage rates
declined, marriage nevertheless remained (and remains) a privileged status in
American law. How to explain this outcome? Mayeri argues that even as challenges
to marriage’s primacy succeeded in eliminating its more pronounced
discriminatory features, those challenges also helped to sustain the privileged
legal status of marriage. Moreover, she concludes, as “marriage declined among
less affluent Americans, marital status law intensified racial and economic
inequality.”

Mayeri
offers abundant evidence to support her thesis, but she is also quick to
acknowledge that the historical sources she has amassed tell a complicated
story. Not only were the sundry challenges to marital status law uncoordinated,
many of the key players in her book disagreed about the role that marriage
should play in social policy and how its contours should be determined and
policed. Here, I will add to the complexity of this story by focusing on a
specific field of regulation: immigration.

In Marital Privilege, immigration
emerges in chapter 7 with Mayeri’s analysis of the 1977 Supreme Court case Fiallo
v. Bell. In Fiallo three fathers and their nonmarital children contended
that American immigration law should recognize their relationships for the
purpose of allocating family-based immigrant visas and exemptions from various requirements.
The families involved in Fiallo were what immigration lawyers call mixed
status families: Families where one member has a right to live in the United
States (as a citizen or lawful permanent resident), but another member does
not. Under American immigration laws of the 1970s, either parent could petition
for an immigrant visa for their marital children and mothers could do the same
for their nonmarital children. However, those laws did not recognize the relationship
between a father and his nonmarital child for immigration purposes. The Fiallo
petitioners contended that this exclusion violated the constitutional
prohibitions on sex and illegitimacy-based discrimination, but they lost.

Mayeri
rightly describes the fathers in Fiallo as poor, working-class men of
color who sought the benefit of family preferences in American immigration law
so that they could live with and care for their minor children in the United
States. They were denied that right by the immigration statutes and a Supreme
Court opinion that offered a narrow vision of constitutional equality. As
Mayeri observes, their saga is a prime example of how marital status laws often
operated in a racially salient manner. In the mid-1970s, recently expanded family-based
immigration preferences, along with other changes in immigration law, had brought
about higher levels of immigration from Latin America and Asia. The district
court’s opinion in Fiallo seemed to reflect contemporary concerns about
unchecked immigration when it noted that granting the fathers’ equal protection
claims might result in an endless chain of immigration: An “unwed mother living
here” could bring over “all of her illegitimate children,” who in turn could
bring over “his or her biological father,” who in turn could bring over “all
of the children he has ever fathered,” and “each of those
children could bring over his or her mother, who could then bring over all of her
illegitimate children, etc., etc., etc.”