Challenging Marital Privilege Through Functional Family Doctrines

<span>In her groundbreaking book <i>Marital Privilege: Marriage, Inequality, and the Transformation of American Law</i>, Professor Serena Mayeri&nbsp;compellingly illustrates that law and culture in the U.S. continue to privilege marital relationships over other family forms. Due to the bravery and persistence of the individuals chronicled in the book, <i>Marital Privilege</i> also documents&nbsp;that some of the most punitive laws and policies have been struck down or repealed.&nbsp;Nonetheless, as Mayeri shows, “the resilience of marriage as a privileged legal status and its enduring consequences for American law and life” persists.</span> <p><span>Mayeri’s account also gestures to avenues for possible challenge. One such path is through the embrace of functional family doctrines.&nbsp;These doctrines allow courts and public and private entities to extend rights and obligations to families beyond the marital family. As Mayeri correctly identifies, even those who support the legal recognition and protection of families beyond the marital family have raised concerns about these doctrines. Critics fear that these doctrines will privilege “conventional” families, they will result in unnecessary intrusion into families, and they will facilitate continued abuse.</span></p> <p><span>These concerns are important ones to consider. But, drawing upon findings from empirical study of functional parent doctrines, Douglas NeJaime and I caution against making normative assessments about functional family doctrines based solely on speculative claims of potential harms.&nbsp;Doing so <span>skews</span><span> the understanding of how and when these doctrines operate, as well as the overall assessment of them. Our findings suggest that these concerns are best addressed <i>not by opposing functional family doctrines</i>, but instead by addressing the concerns in a more targeted way through the operation of the doctrines themselves.</span></span></p>