Document Type
Article
Publication Date
11-2015
Abstract
In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.
Keywords
Constitutional law, Supreme Court of the United States, SCOTUS, Anthony Kennedy, marital supremacy, gender equality, sex discrimination. Ruth Bader Ginsburg, second-wave feminism, legal privileging of marriage, nonmarital status
Publication Title
California Law Review
Repository Citation
Mayeri, Serena, "Marriage (In)equality and the Historical Legacies of Feminism" (2015). All Faculty Scholarship. 1599.
https://scholarship.law.upenn.edu/faculty_scholarship/1599
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, Law and Gender Commons, Law and Society Commons, Legal Commons, Legal History Commons, Lesbian, Gay, Bisexual, and Transgender Studies Commons, Public Law and Legal Theory Commons, Sexuality and the Law Commons, Supreme Court of the United States Commons, Women's History Commons, Women's Studies Commons
Publication Citation
6 Calif. L. Rev. Circuit 126 (2015).