In your own way to reflect upon the following question: What is marriage? Yet each of this week’s readings gets at the question above in some way by highlighting out various issues and meanings of mar
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347
BLACK CITIZENSHIP THROUGH
MARRIAGE ? REFLECTIONS ON THE
MOYNIHAN REPORT AT FIFTY
R.A. LENHARDT *
TABLE OF CONTENTS
I. INTRODUCTION : BLACK CITIZENSHIP THROUGH
MARRIAGE ?
II. UNPACKING THE MOYNIHAN REPORT ’S ACCOUNT OF
MARRIAGE AND BLACK CITIZENSHIP
III. BLACK MARRIAGE INEQUALITY I N THE AGE OF
OBERGEFELL
IV. W HY NONMARITA L BLACK FAMILIES MATTER
V. CONCLUSION : THE PLACE OF BLACK FAMILIES IN THE
NEW MOVEMENT FOR CIVIL RIGHTS
I. INTRODUCTION:
BLACK CITIZENSHIP TH ROUGH MARRIAGE?
What are the necessary conditions for full black citizenship and
belonging? In one way or another, this question has informed and bedeviled
American public debate since our nation ’s founding. In 2015, efforts to
register a satisfactory answer to this inquiry have primarily centered on
issues of policing and mass incarceration. The death of black men and
women such as Michael Brown, Rekia Boyd, and Walter Scott at the hands
of white police officers in places like Ferguson, Missouri; Chicago, Illinois;
and North Charleston, South Carolina, have exposed the comparative
insecurity and physical vulnerability of blacks in communities across the
* Professor of Law, Fordham Law School. I wish to thank Camille Gear Rich and the USC Gould School of Law for inviting me to participate in this important symposium, as well as the wonderful scholars who participated in that event. I benefitted tremendously from your comments and conversation. In addition, I want to thank Fordham Law School for the summer research grant that supported this essay. Document1 (Do Not Delete) 4/8/2016 1:58 AM
348 Southern California Interdisciplinary Law Journal [Vol. 25: 347
country. 1 Given that relatively few of these cases have resulted in criminal
indictme nts, let alone punishment, they have — as the activism of groups
such as Black Lives Matter underscores — also raised troubling questions
about the overall value placed on black life in our society. 2 So discordant
are the statistics and relevant life prospects of blacks and whites in this
context that even federal lawmakers who have staked their careers on
tough -on -crime initiatives have felt compelled to make progress on
legislation that would minimize racial disparities in sentencing and
potentially work to s tem the ov erwhelming tide of black men and women
into the criminal justice system. 3
Fifty years ago, the country found itself in the midst of a similarly
intense debate about black belonging and standing in the United States.
Passage of the landmark Civil Rights Act of 1964 had just been won and
school desegregation efforts mandated by the U.S. Supreme Court ’s
decision in Brown v. Board of Education ,4 while not uncontested, were
under way. 5 Yet, many questioned whether, without more, “equality of
results [would] . . . follow ” these and other civil rights gains. 6 For his part,
former Senator Daniel Patrick Moynihan — then an official with the U.S.
Department of Labor — maintained that meaningful black “progress ”7
would be elusive without targeted government support and a sustained
focus on what, in his mind, constituted the single most important problem
facing African America: “family structure .”8 In the 1965 memorandum
addressing this subject tha t he drafted — a document now popularly referred
to as “the Moynihan Report ”— Moynihan acknowledged “the racist virus in
the American blood stream, ”9 but, in terms that still draw bitter criticism
today, identified nonmarriage and the rise in single female -he aded black
1 See Claudia Rankine, The Condition of Black Life Is One of Mourning , N.Y. TIMES MAGAZINE (June 22, 2015), http://www.nytimes.com/2015/06/22/magazine/the -condition -of-black -life - is-one -of-mourning.html. 2 See Editorial, The Truth of ‘Black Lives Matter ,’ N.Y. TIMES (Sept. 4, 2015), http://www.nytimes.com/2015/09/04/opinion/the -truth -of-black -lives -matter.html (discussing substantive issues raised by the “Black Lives Matter” movement). 3 See Carl Hulse & Jennifer Steinhauer, Sentencing Overhaul Proposed in Senate With Bipartisan Backing , N.Y. TIMES (Oct.1, 2015), http://www.nytimes.com/2015/10 /02/us/politics/senate - plan -to-ease -sentencing -laws.html?_r=0. 4 Brown v. Bd. of Educ., 347 U.S. 483 (1954). 5 WILLIAM JULIUS WILSON , MORE THAN JUST RACE : BEING BLACK AND POOR IN THE INNER CITY 95 (2009). 6 DANIEL PATRICK MOYNIHAN , U.S. DEP’T OF LABOR , OFFICE OF POLICY PLANNING & RESEARCH , THE NEGRO FAMILY : THE CASE FOR NATIONAL ACTION (1965) [hereinafter MOYNIHAN REPORT ], https://web.stanford.edu/~mrosenfe/Moynihan's%20The%20Negro%20Family.pdf . 7 Id. at at 5, 29, 48. 8 Id. at 5. 9 Id. Document1 (Do Not Delete) 4/8/2016 1:58 AM
2016] Black Citizenship Through Marriage? 349
households, not the vestiges of Jim Crow segregation or ongoing racial
discrimination, as far more deleterious to “the fabric of Negro society. ”10
For Moynihan, the “establishment of a stable Negro family structure ” had
to be prioritized and with it, presumably , marriage as well. 11
This essay looks to surface and then interrogate the assumptions about
black citizenship and marriage at the heart of the Moynihan Report. In
doing so, it engages directly with arguments about marriage ’s citizenship -
co nferring capacity articu lated during Reconstruction by whites and many
newly freedpersons, as well as the claims more recently advanced by
LGBT rights advocates and even U.S. Supreme Court Justice Anthony
Kennedy in his majority opinion in Obergefell v. Hodges , a decision that
recognized the Fourteenth Amendment right of same -sex couples to
marry. 12 Insofar as it examines the racial inequality that informs the
spiraling rates of black marriage, the essay also intervenes in current
debates about whether “black lives matter ” in America. 13 While post -
Ferguson solutions for policing reforms or interventions have not often
touched on matters of race and family, I argue that the racial inequality
reflected in our criminal justice system cannot be easily divorced f rom that
which still shapes and constrains the functioning of black families — marital
or nonmarital — in the United States. 14
The firestorm that marked the Moynihan Report ’s release and the
ongoing public debate about African American family life that it provo ked
means that the negative relationship between black citizenship and
nonmarriage that Moynihan asse rted has been well explicated. Yet, the
positive account of marriage and citizenship und erlying the Report ’s
analysis — the idea that entrance into marriage can secure African
Americans with a meas ure of belonging long denied — has been
insuffic iently explored. This essay ad dresses this gap. It first unpacks the
Report ’s implicit assertion that marriage , and conformity with gender roles
and norms , helps to secur e black citizenship and then offers a critical
analysis of that claim grounded in history and the realities of modern black
family life.
10 Id. 11 Id. at [i]. 12 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 13 Editorial, supra note 2. 14 For an account also linking inequality in the criminal justice and family c ontexts, see Ta- Nehisi Coates, The Black Family in the Age of Mass Incarceration , ATLANTIC (Oct. 2015), http://www.theatlantic.com/magazine/archive/2015/10/the -black -family -in-the-age -of-mass - incarceration/403246/. Document1 (Do Not Delete) 4/8/2016 1:58 AM
350 Southern California Interdisciplinary Law Journal [Vol. 25: 347
As I argue in a recent article in the Hastings Law Journal, marriage, as
an historical matter, has too often functioned less as the black deliverance
imagined and more as a mechan ism for racial subordination — one that has
worked to subjugate African America ns and other racial minorities, and to
both racialize and pathologize need. 15 Entrance into marriage did not work
to secure full black belonging in the past and it, without more, is unlikely to
do so anytime soon. Obergefell may have won marriage equality for same -
sex couples, but given the cumulative racial disadvantage and uncertainty
under which African America labors today, marriage inequality is likely to
remain the norm for blacks — gay or straight — into the foreseeable fut ure. 16
In light of this truth, I advocate a shift in focus that priorit izes supporting
nonmarital black families where they are and eliminating policies that
thwar t their effective functioning. For better or for worse, dealing with the
reality of nonmarri age could do more to secure black citizenship and
belonging in our post -Ferguson twenty -first century world than marriage
ever did .
II. UNPACKING THE MOYNIH AN REPORT ’S ACCOUNT OF
MARRIAGE AND BLACK C ITIZENSHIP
If the so -called “welfare queens ” that the Moyni han Report infamously
laments threatened to be the black community ’s downfall in 1965, it was
marriage that promised to be its salvation. One would be hard pressed ,
however, to find words to that effect i n the Report ’s pages . Instead, the
story conveyed is one of failed citizenship through nonmarriage . Marriage
promotion, to be clear, never emerges among the vague set of government
interventions that Moyn ihan urges. It gained renewed life as a policy option
in the Report ’s aftermath, when scholars and policymakers building on
Moynihan ’s work seized the concept of marriage and strategies to
incentivize it — such as the 1996 Personal Responsibility and Work
Reconciliation Act designed to incentivize welfare recipients to marry — as
a way to address the proble ms and inequality that the Report outlined. 17
Never the less , the Moynihan Report ’s intervention derives a great deal of
15 R.A. Lenhardt, Marriage as Black Citiz enship? , 66 HASTINGS L.J. 1317 , 1324 -42 (2015). 16 See R.A. Lenhardt, Race, Dignity, and the Right to Marry, 84 FORDHAM . L.J. 53, 58 -64 (2015) [hereinafter Race, Dignity, and the Right to Marry ]. 17 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104 -93, 110 Stat. 2105 (1996) (codified as amended at 42 U.S.C §§ 601 -603) ; see also Angela Onwuachi -Willig, The Return of the Ring: Welfare Reform ’s Marriage Cure as the Revival of Post - Bellum Control , 93 CAL. L. REV. 1647, 1648 (2005) (discussing the Personal Responsibility and Work Reconciliation Act of 1996 and marriage promotion efforts). Document1 (Do Not Delete) 4/8/2016 1:58 AM
2016] Black Citizenship Through Marriage? 351
force from an affirmative narrative about marriage as citizenship
enhancing. 18
In slavery ’s wake, many — although by no means all — newly
ema ncipated persons understood “the [m]arriage [c]ovenant [to be] at the
foundation of all our rights. ”19 Marriage, something denied them during
bondage, provided both a vehicle for securing other civil rights — such as
work, fair wages, or familial autonomy 20— as well as an avenue through
which their overall fitness for full citizenship could be demonstrated or
performed. 21 It would be too much to suggest that Moynihan meant to be in
conversation with this earlier ge neration of African Americans. And yet,
the two dimensions of black life and families that the Report has typicall y
been understood to address — those of structure and culture 22— both sound
in a register of citizenship that was arguably quite salient during this time.
One perhaps sees this most immediatel y in the portions of Moynihan ’s
analysis acknowledging that “[t]hree centuries of injustice ha[d] brought
about deep -seated structural distortions in the life of the Negro
American. ”23 Social scientists building on this work have, of course,
addressed a bro ad range of social and economic questions that they do not
relate directly to citizenship per se : matters concerning issues such as black
joblessness, incarceration, and the link between nonmarital childbearing
and poverty. 24 But we can nevertheless underst and them to bear on the
extent to which marriage, if not a formal gateway to other rights, speaks to
the range of entitlements that inform full belonging.
The Report ’s reflections on “culture ,” not insignificantly, address a
different, yet still conseque ntial dimension of citizenship. Here, Moynihan
took the position that, while perhaps initially born of structural inequity,
“[w]eaknesses of [the black] family structure ” had taken on an independent
life, advanced by a culture and pattern of individual dec isionmaking , whose
long -term impacts could not easily be reversed .25 In other words , the
“deterioration of the Negro family ,” in his mind , had progressed to the
18 CATHERINE J. DENIAL , MAKING MARRIAGE : HUSBANDS , WIVES AND THE AMERICA STATE IN DAKOTA AND OJIBWE COUNTRY 12 (2013) . 19 LAUR A F. EDWARDS , GENDERED STRIFE AND CONFUSION : THE POLITICAL CULTURE OF RECONSTRUCTION 47 (1997). 20 Id. at 46 -47. 21 See id. at 56 (noting assertions of black leaders during this period that “we are on trial before the tribunal of the nation” and exhortations to comply with prevailing intimacy norms as a way of demonstrating “we are worthy to be a free, self -governing people”). 22 WILSON , supra note 5, at 1 05-28 (discussing structural and cultural arguments made by the Moynihan Report and the reactions to them). 23 MOYNIHAN REPORT , supra note 6, at 47. 24 See, e.g. , Sara McLanahan, Fragile Families and the Reproduction of Poverty , 621 ANNALS AM. ACAD . POL. & SOC. SCI. 111 (2009) (discussing fragile nonmarital families and poverty); WILSON , supra note 5. 25 MOYNIHAN REPORT , supra note 6, at 30. Document1 (Do Not Delete) 4/8/2016 1:58 AM
352 Southern California Interdisciplinary Law Journal [Vol. 25: 347
point that it was “capable of perpetuating itself without assistance from the
white world. ”26
Poor black families, in Moynihan ’s estimation, had become ensnared in
a debilitating “tangle of pathology ” that required immediate “national
action .”27 The Report offered a range of support for this conclusion, but
found its strongest proof in the “matriarchal pattern of so many Negro
families, ” which the Report associated with both a “startling increase [in]
welfare dependency ” and irresponsible reproduction. 28 For Moynihan, the
disp roportionately high numbers of female -headed black households served
primarily to promote “anti -social behavior ” and “retar[d] the progress of
[African America ns] as a whole. ”29 The “matriarchal structure ” of the black
community not only “impose[d] a crushi ng burden on the Negro male, ”
but , in his view, also “perpetuate [d] the cycle of poverty and deprivation ”
from which most black youth could never hope to escape. 30
For good reason, much of the criticism leveled at the Report concerned
those sections advan cing the theory just described — its embrace of
patriarchy, as well as its principally race -based account of family
disfunction. 31 They paint, as the initial response to the Report attests, an
exceedingly problematic picture of black family life. But they also tell a
story about the performative dimensions of family and citizenship, and the
social font of marriage more specifically t hat bears elaboration.
The former slaves mentioned earlier, those individuals who emphasized
the potential for freedpersons to perform readines for citizenship by
comporting with prevailing marriage norms, 32 sought to exploit the extent
to which laws perta ining to family, as well as citizenship are performative
in nature. 33 As Professor Clare Huntington has explained, by engaging in
repeated acts such as wearing a wedding ring or parenting a child,
individuals communicate messages about what it means, for ex ample, to be
married or to be a parent. 34 Repet ition of such performances “shape what
sociologist Erving Goffman called a social front — a shorthand for
conveying information about a category of people ” that “tend[s] to be
26 Id. at 5, 47. 27 Id. at 29, 47 (“In a word, a national effort towards the problem of Negro Americans must be directed toward the question of family structure ”). 28 Id. at 8, 12, 31. 29 Id. at 29, 30. 30 See id. ; see also DOROTHY ROBERTS , KILLING THE BLACK BODY : RACE , REPRODUCTION , AND THE MEANING OF LIBERTY 16 (1997) (noting that “Moynihan thus endowed poor Black women — the most subordinated members of society —with the power of a matriarch ”). 31 Frank F. Furstenberg, If Moynihan Had Only Known: Race, Class, and Family Change in the Late Twentieth Century, 621 ANNALS AM. ACAD . POL. & SOC. SCI. 94 (2009) 32 See supra text accompanying notes 19–21. 33 See Clare Huntington, Staging the Family , 88 N.Y.U. L. REV. 589 (2013). 34 Clare Huntington , Obergefell’s Conservatism: Reifying Familial Fronts , 84 FORDHAM L. REV. 23, 24 (2015). Document1 (Do Not Delete) 4/8/2016 1:58 AM
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narrow, reflecting the typical and sometimes idealized performance ” and,
very often, traditional norms. 35
We can understand Moynihan to have made stragegic use of such fronts
in drafting the Report. His appraisal of the potential dangers inherent in
“the often reversed roles of husband and w ife ” in African America and his
predictions about what nonmarital births mean for black citizenship
resonate partly because of the norms regarding gender, sexuality, and
family that traditional marriage has established. 36 Thought by earlier
generations to inform good governance , citizenship, and successful
functioning of family units, such norms constitute d the yardstick against
which the nonmarital families addressed in the Report were evaluated. 37
For example, m arital norms determine d the extent to which b lack female
heads -of-household — the subgroup Moynihan focused on — we re classified
as hypersexual or nurturing, resourceful or domineering, “good ” or “bad ”
citizens. Ultimately, such norms shape the metrics against which all
relationships — whether marital or n onmarital — are measured .
At bottom , the overall theory of race and nonmarital disorder featured
in the Moynihan Report — in both its structural and “cultural ” dimensions —
derives a good deal of its content from an opposing narrative of marriage as
primarily black citizenship enhancing. The problem is that, while
pervasive, th is underlying narrative is deeply flawed. In reality, marriage in
this count ry has very often been deployed as a tool of racial subordination
for African Americans and, as I explain elsew here, for groups such as
Native Americans , Puerto Ricans , and Asian Americans .38 Images of former
slaves “rush[ing] to marry [upon Emancipation], often in mass
ceremonies, ” as many freedpersons did, tend to be the touchstone for those
who see marriage as a kind of black liberation. 39 But focusing on this
snapshot in time badly obscures the full history of black marriage in
America .
The limited aperture that the moment of Emancipation provides allows
no room, for example, to consider slavery and the extent to which the
exclusion of black slaves from marriage during that period reinforced not
only their designation as non -citizens, but also the degree to which they
were regarded as sub -human. 40 Nor does that frame work easily facilitate
inquiries into race and marriage -related laws and policies introduced much
later in time. In other work s, I examined a 1920s Richmond , Virginia
ordinance that went so far as to determine a non -white person ’s eligibility
35 Id. 36 MOYNIHAN REPORT , supra note 6, at 5, 30, 47. 37 See CATHERINE J. DENIAL , MAKING MARRIAGE : HUSBANDS , WIVES AND THE AMERICA STATE IN DAKOTA AND OJIBWE COUNTRY 12 (2013) . 38 Lenhardt, supra note 15, at 1324 –35. 39 AMY DRU STANLEY , FROM BONDAGE TO CONTRACT : WAGE LABOR , MARRIAGE , AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION 44 (1998). 40 See Adrienne D. Davis, The Private Law of Rac e and Sex: An Antebellum Perspective , 51 STAN . L. REV. 221, 229, 239 –40 (1999) (discussing, inter alia , legal incapacity of slaves to marry). Document1 (Do Not Delete) 4/8/2016 1:58 AM
354 Southern California Interdisciplinary Law Journal [Vol. 25: 347
to live in a certain neighbor hood by referenc ing the antimiscegenation law
then in effect. 41 By referencing antimiscegenation law, the ordinance
obviously functioned to shape notions of ideal race and family. 42
Furthermore, insofar as it facilitated racial segregation and determined
access to shelter, wea lth, and social capital over time on the basis of race ,
the ordinance also structur ed future racial disadvantage. 43 Like laws
pertaining to education, housing, or employment, marriage has effectively
functioned to marry African Americans to a tier of second -class citizenship
in which they still reside. 44 Without an orientation that treats a broad range
of family -related systems as relevant inquiries into citizenship, the import
and structural effects of ordinance s such as the Richmond ordinance would
likely otherwise go unnoticed. 45
Significantly, even aspects of the Post -Emancipation Period are
occluded by a narrow focus on the moment of former slaves ’ entrance into
legal marriage. Research by historians and legal scholars , such as Katherine
Franke , suggest s that Reconstruction -era marriage laws often functioned
more to reassert control over former slaves than to affirm their intimate
choices and new status as citizens. 46 Whites saw marriage as a way to
reconstruct the South, as well as the nation overall. 47 It afforded them a
means of reasserting regulatory control over black lives and — as norms at
that time dictated that any dependency be internalized by households, not
government — of evading responsibility for tremendous poverty of families
emerging from bondage .48 Officials at all levels of government thus
devoted themselves to the goal of “creating black husbands and wives, ”
using coercion to induce marriage , and harsh punishments wherever
possible to ensure compliance with its norms. 49 Under Southern Black
Codes, for example, black men unable to curb the indigence of their
families often found themselves imprisoned and their children involuntarily
41 See Lenhardt, supra note 15, at 1339 –40, n.128; see also R.A. Lenhardt, According to Our Hearts and Location: Toward a Structuralist Approach to the Study of Interracial Families , 16 J. GENDER RACE & JUST . 741, 763 –64 ( 2013) . See Richmond v. Deans, 37 F.2d 712 (4th Cir. 1930) . 42 For research on race effects of antimiscegenation law, see, e.g ., RACHEL F. MORAN , INTERRACIAL INTIMACY : THE REGULATION OF RACE AND ROMANCE 17–28 (2001) ; RANDALL KENNEDY , INTERRACIAL INTIMACIES : SEX, MARRIAGE , IDENTITY , AND ADOPTION 216 –23 (2003) . 43 See Lenhardt, supra note 15, at 1339 –40, 1335. 44 Id. 45 See also id. at 1338 –39, n.127 (noting an example of North Carolina law that incorporated antimiscegenation law in a Jim Crow provision determining eligibility fo r school enrollment). 46 Id. at 1327; Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J. L. & HUMAN . 251, 253 (“ Rather than escaping from the coercive power of the state, the newly emancipated f ormer slaves encountered the state in new institutional garb. Marriage … provides the best … example of the degree to which African Americans had to be ‘domesticated ’ before they could be admitted into society as full citizens ”). 47 R.A. Lenhardt, Race, Dignigty, and the Right to Marry, 84 FORDHAM L. REV. 53, 57 (2015) ; LAURA F. EDWARDS , GENDERED STRIFE AND CONFUSION : THE POLITICAL CULTURE OF RECONSTRUCTION 27 (1997) ; Franke, supra note 46, at 294. 48 Franke, supra note 46, at 302; EDWARDS , supra note 47, at 33 . 49 Lenhardt, supra note 15, at 1327; Franke, supra note 46, at 282 -90. Document1 (Do Not Delete) 4/8/2016 1:58 AM
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placed in “apprenticeships. ”50 Such so -called punishments, which were
clearly t hinly veiled attempts to replicate antebellum labor arrangements,
effectively reinforced notions of black criminality and pathologized black
need and “dependency ” in ways that public institutions relating to criminal
justice, public benefits, and child welfare arguabl y still reflect. 51
In sum, the Moynihan Report ’s forecast of nonmarriage -induced civic
doom trades on a promise of full citizenship through marriage that has
never been fulfilled. Even the very brief history offered in this Section
shows that black marria ge has not been uniformly citizenship enhancing ;
indeed, it has very often been citizenship diminishing. This, of course, does
not mean that poverty and nonmarital childbearing posed no difficulties for
the black families that Moynihan considered in 1965. But it does suggest
that we need to reevaluate the true challenges to inclusion that black
families faced then and that other s imilarly situated African Americans face
today.
III. BLACK MARRIAGE INEQU ALITY IN THE AGE OF
OBERGEFELL
Is access to marriage rights necessary to ensure full belonging in the
twenty -first c entury? In Obergefell , the Court, with Justice Kennedy
writing for the majority, answered this question in the affirmative, holding
that lesbian and gay couples are entitl ed to “equal dignity ” and access to
marriage, an “enduring bond, [through which] persons together can find
other freedoms, such as expression, intimacy, and spirituality, ” irrespective
of their sexual orientation. 52 In doing so, the Court resolved one of th e most
important ques tions of our day. But it raised other questions , both for
LGBT A mericans and for others. Among these is the question whether,
without more, merely ensuring formal access to marriag e rights can ever be
adequate. In other words, can we r easonably expect marriage to be
citizenship enhancing for African Americans, gay or straight, today?
On the numbers, it seems pretty clear that the answer to this question i s
no. If anything, marriage inequality s eems likely to be the norm for blac ks
for t he foresseable future. Today, African Americans are the most
50 Mary Farmer -Kaiser, “With a Weight of Circumstances Like Millstones About Their Necks ”: Freedwomen, Federal Relief, and the Benevolent Guardianship of the Freedmen ’s Bureau , 115 VA. MAG. HIST. & BIOGRAPHY 413, 416, 428 –29 (2007) . 51 ROBERTS , supra note 30, at 220 –21, 223 (discussing, inter alia , pathologization of black need); R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context , 79 N.Y.U. L. REV. 803, 851 -64 (2004) (discussi ng stereotypes about black criminality). For a discussion of how the stigma attached to black dependency plays out in child welfare, see Leah Hill, Do you See What I See — Reflections on How Bias Infiltrates the New York City Family Court —The Case of the Court Ordered Investigation , 40 COLUM . J.L. & SOC. PROBS . 527 (2006 –2007) . 52 Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015). Document1 (Do Not Delete) 4/8/2016 1:58 AM
356 Southern California Interdisciplinary Law Journal [Vol. 25: 347
unmarried group of any in the country. 53 While marriage decline affects all
groups, 54 it has been steepest in African America. In 2008, black marriage
rates stood at merely 32 percent, down from 61 percent in 1960. 55 As with
other groups, marriage rates tend to be lowest among poor blacks and those
with low lev els of educational attainment. Still, research makes it plain that
“blacks in all educational groups [are] less likely to be in intact
marriag es”56 or never to have marriage at all. 57
Loving relationships between blacks — whether romantic, parental, or
involving other caregiving — increasingly operate outside of legal marriage ,
a space that decisions like Obergefell , even if unintentionally , have
rendered even more non -normative. 58 Studies indicate that African
Americans are more likely than their white counterparts to cohabit .59 They
are also more likely to have and parent children within nonmarital
relationships. 60 In the 1960s, t he nonmarital black birth rate that raised
alarms for Moynihan was 20 percent. 61 Due to a nationwide increase in
nonmarital births, that rate of 20 percent has now been surpassed by the
white population , whose percentage of nonmarital birth was only 2–3
percent in the early 1960s .62 Signifi cantly, the percentage of black –
nonmarital births has nearly tripled since the 1960s .63 Currently, nonmarital
births among black high school graduates comprise more than 70 percent of
all black births in the United States. 64
Stereotypes about black “welfare queens ” and “deadbeat dads ” might
suggest that not just socioeconomics, but also attitudes about family and
53 D’VERA COHN ET AL ., PEW RESEARCH CTR., NEW MARRIAGES DOWN 5% FROM 2009 TO 2010: BARELY HALF OF U.S. ADULTS ARE MARRIED —A RECORD LOW 8 (2011 ), http://www.pewsocialtrends.org/files/2011/12/Marriage -Decline.pdf . 54 See PEW RESEARCH CTR., THE DECLINE OF MARRIAGE AND RISE OF NEW FAMILIES 9 (Nov. 18, 2010) [hereinafter DECLINE OF MARRIAGE ], http://www.pewsocialtrends.org/files/2010/11/pew - social -trends -2010 -families.pdf (noting overall decrease in the percentage of married Americans fell from 72 to 52 percent between 1960 and 2008). 55 Id. 56 See generally JUNE CARBONE & NAOMI CAHN , MARRIAGE MARKETS : HOW INEQUALITY IS REMAKING THE AMERICAN FAMILY (2014) ; see also INST . FOR AM. VALUES & NAT’L MARRIAGE PROJECT , THE STATE OF OUR UNIONS : WHEN MARRIAGE DISAPPEARS : THE NEW MIDDLE AMERICA ix, 54 ( W. Bradford Wilcox & Elizabeth Marquardt eds., 2010) [hereinafter WHEN MARRIAGE DISAPPEARS ]. 57 DECLINE OF MARRIAGE , supra note 54, at 29. 58 For more on this, see Huntington, supra note 34, at 27 -30. 59 CYNTHIA GRANT BOWMAN , UNM ARRIED COUPLES , LAW , AND PUBLIC POLICY 112 (2010). 60 Kristen Harknett & Sara S. McLanahan, Racial and Ethnic Differences in Marriage After the Birth of a Child , 69 AM. SOC. REV. 790, 790 (2004). 61 See GREGORY ACS ET AL ., THE URBAN INST ., THE MOYNIHAN REPORT REVISITED 4 (2013) [hereinafter MOYNIHAN REVISITED ], http://www.urban.org/UploadedPDF/412839 -The -Moynihan - Report -Revisited.pdf. 62 Id. at 5; see also Robert A. Hummer & Erin R. Hamilton, Race and Ethnicity in Fragile Families, THE FUTURE OF CHILD ., Fall 2010, at 113, 116 (Among white women, the share of unmarried births in 1970 (6 percent) more than quadrupled by 2006 (27 percent)). 63 MOYNIHAN REVISITED , supra note 61, at 4. 64 WHEN MARRIAGE DISAPPEARS , supra note 56, at 56, fig.S2. Document1 (Do Not Delete) 4/8/2016 1:58 AM
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marriage, in particular, might place African Americans outside the main.
Research by Kath ryn Edin and Maria Kefalas , however, suggests
otherwise ; their i nterviews with poor women indicate that, if anything ,
“[t]he poor avoid marriage not because they think too little of it, but
because they revere it. ”65 African American s consistently rate marriage as
important and are very likely to express a desire to marry in the future. 66
Uncertainty and fears about not fulfilling traditional marriage roles,
however, appear to prevent low -income, black heterosexual couples from
actually marrying. 67 They decouple childbirth and marriage because the
belief is that to “do [marriage] ‘right ’ [they must ] be gin with a solid
economic footing. ”68
Put differently, structural inequality, along with traditional marriage
norms, has erected a barrier to marriage that only increasingly low numbers
of African Americans can scale. We tend to think of marriage inequality as
distinct from the kinds of structural racism and disadvantage that we have
grown accustomed to discussing in places like Ferguson, Missouri, or even
New York City, where black men an d women have tragically lost their lives
at the hands of white police officers. Yet, research suggests this same
inequality informs the increase in black –nonmarital families, what
sociologists now refer to as “fragile families .”69 Structural inequality — in
areas such as housing, employment, education, and mass incarceration —
work s in ways that keep marriage out of reach for many poor black s. As I
explained in another article , “[ f]or poor black women, socioeconomic
circumstances translate into very high levels of ‘uncertainty ’ in their
intimate relationships and lives more broadly. ”70 In addition to placing
tremendous strain on adults and children alike in nonmarital families, 71 it
significantly reduces the chances that a black women will find a romantic
partner or, for that matter, achieve some measure of financial secur ity .72
That modern marriage reflects black inequality is undeniable. So too
are the ways in which marriage and other family law systems increasingly
function to structure that inequality. 73 For exa mple, in a recent article, I
urged a focus on the incident involving the shooting death of Walter Scott
65 See KATHRYN EDIN & MARIA KEFALAS , PROMISES I CAN KEEP : WHY POOR WOMEN PUT MOTHERHOOD BEFORE MARRIAGE 207 (2005). 66 Id. at 132, 237. 67 LINDA C. MCLAIN , THE PLACE OF FAMILI ES: FOSTERING CAPACITY , EQUALITY , AND RESPONSIBILITY 138 –44 (2006). 68 Id. at 140 –41. 69 See McLanahan, supra note 24, at 111. 70 Lenhardt, supra note 15, at 1351 (citing Linda M. Burton & M. Belinda Tucker, Romantic Unions in an Era of Uncertainty: A Post -Moynihan Perspective on African American Women and Marriage , 621 ANNALS AM. ACAD . POL. & SOC. SCI. 132, 135 –39 (2009) ) (describing the problem of “uncertainty ” and its impact on the marriage choices of blacks). 71 Hummer & Hamilton, supra note 62, at 124. 72 See Harknett & McLanahan, supra note 60, at 804, 808. 73 See R.A. Lenhardt, Structuring Families, Structuring Race , BALKINIZATION (Oct. 30, 2014, 10:38 PM), http://balkin.blogspot.com/2014/10/structuring -families -structuring -race.html. Document1 (Do Not Delete) 4/8/2016 1:58 AM
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in Charleston , South Carolina. 74 On the surface, few would make a
connection between Scott ’s death upon being shot as he ran away from a
white police officer and family law. 75 But the reason Scott ran turns out to
be quite salient here. Newspaper reports filed in the wake of the inciden t
suggest that Scott ran because he feared arrest on an outstanding warrant to
pay almost twenty thousand dollars in back child support. 76 Reports suggest
that, more than any payments, Scott sought to avoid jail and the likelihood
that his incarceration wo uld lead to the loss of his employment, as it had on
another a similar occasion. 77 The child support obligations at issue in
Scott ’s case admittedly did not concern marriage directly, as they apply to
the married and unmarried alike. At the same time, thoug h, child support
requirements reflect patriarchal norms privileging patriarc hal arrangements
like those tou ted by Moynihan, financial suppo rt, and the internalization of
dep endency that traditional marriage reflects. Such norms work in w ays
that render exi sting policy overly punitive and blind to the unique
circumstances that apply to communities of color constrained in multiple
ways by structural racial inequality. 78
IV. WHY NONMARITAL BLACK FAMILIES MATTER
Advocacy groups such as “Black Lives Matter ”— which hav e been
instrumental in raising awareness about the race effects of mass
incarceration and policing methods deployed in many communities of
color — have, along with scholars and policymakers, increasingly begun to
bring a critical lens to issues of racial ine quality in other areas. Important
work in this regard has, for example, helped to underscore the need to see
places like Ferguson in a broader context that implicates not just police
practices, but also issues of zoning, education, and housing policy, amon g
other things. 79 Our conversations have begun to open beyond the doctrinal
siloes privileged in curren t Supreme Court jurisprudence. They h ave not ,
however, begun meaningfully to incorporate inquiries into family l aw and
racial inequality in the way that t he statistics set forth in the previous
section suggests that they should. This needs to change. And our starting
point f or such a shift should be black –nonmarital families. 80
74 Race, Dignity, and the Right to Marry , supra note 16, at 61 -62. 75 Michael S. Schmidt & Matt Appuzo, South Carolina Officer Is Charged with Murder of Walter Scott , N .Y. TIMES (Apr. 7, 2015 ), http://www.nytimes.com/2015/04/08/us/south -carolina - officer -is-charged -with -murder -in-black -mans -death.html. 76 Frances Robles & Shaila Dewan, Skip Child Support. Go to Jail. Lose Job. Repeat. , N .Y. TIMES (Apr. 19, 2015), http://www.nytimes.com/2015/04/20/ us/skip -child -support -go-to-jail -lose -job - repeat.html. 77 Id. 78 CLARE HUNTINGON , FAILURE TO FLOURISH : HOW LAW UNDERMINES FAMILY RELATIONSHIPS 193 –95, 208 –20 (2014) . 79 See Richard Rothstein, The Making of Ferguson , AMERICAN PROSPECT (Oct. 15, 2014), http://prospect.org/article/making -ferguson -how -decades -hostile -policy -created -powder -keg. 80 See supra text accompanying notes 59-64. Document1 (Do Not Delete) 4/8/2016 1:58 AM
2016] Black Citizenship Through Marriage? 359
Research indicates that, in addition to being a site at which racial
inequality b oth gets reflected an d produced, nonmarital black families mark
the places were some of the greatest need and obstacles to full black
citizenship exist. The Princeton and Columbia University affiliated Fragile
Families and Child Wellbeing Study (“FFCWS ”)— which tracked 5000
children, born mostly to unmarried parents, in large U.S. cities, between
1998 and 2000 81— tells us that, while nonmarital families are more likely to
be disadvantaged than other groups, 82 nonmarital black families tend to be
the most fragile of the fragile. The single women heading such families
tend to live below or near the poverty line, to live in neighborhoods that
they regard as unsafe, and to be recent recipients of public assistance. 83
These families — although obviously affe cted by inequality and bias in
ways that differ dramatically from those felled by police violence — matter
too.
For years, we have, as the Moynihan Report itself indica tes, been
overly reliant on stra tegies that effectively look to drag nonmarital families
into marital unions at any cost. But, it seems clear, for reasons already
articulated, that continued reliance on such measures will not bear fruit.
Thus, I have argued that, instead of focusing on marriage, legal scholars,
advocates, and policy makers wou ld do better to focus on nonmarriage and
its potential to p romote black citizenship. To be clear I do not advocate the
abolition of marriage. Instead, the proposal I advance imagines situating
nonmarriage alongside marriage as a frame work for loving black
relationships. The goal would be to ensure the “flourishing ” of all black
families, rather than pathologizing those that never enter traditional
marriage either by choice or because of the structural inequality they
confront. 84
Adopting such a focus would have several benefits. First, it would help
to improve existing family law. As other scholars have noted, this area of
the law largely ignores nonmarital families insofar as marita l unions set the
dominant norm. 85 An effort to develop a “postmarital family law ” with new
norms and rules that better aid nonmarital families in navigating the
challenges and poverty that they face would , Huntington has argued, be
very beneficial. 86 Additionally, focusing on non marital families would help
to identify the ways in w hich existing programs and initiatives should be
modified to eliminate the disparate racial impact that measures such as
those at play in the fatal Walter Scott incident can have on African
81 Center for Research on Child Wellbeing, About the Fragile Families and Child Wellbeing Stud y, http://www.fragilefamilies.princeton.edu/about.asp (last visited Nov. 11, 2015) ( “roughly three - quarters ” of the children followed were born to unmarried parents ). 82 Hummer & Hamilton, supra note 62, at 121. 83 Id. 84 Id. at xii. 85 Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families , 67 STAN . L. REV. 167, 173 (2015). 86 Id. Document1 (Do Not Delete) 4/8/2016 1:58 AM
360 Southern California Interdisciplinary Law Journal [Vol. 25: 347
Americ ans and other minority groups. The primacy of marriage as a
regulatory device today means that family -related laws will persist in
relegating blacks to second class status unless greater attention gets
dir ected toward the way in which, f or example, tax policy incentivizes
marriage by extending benefits to married c ouples that are not available to
nonmarital individuals, 87 or that initiatives such as the Temporary
Assistance for Needy Families (“TANF ”) program — which places
durational limits on welfare support and mandates that support recipients
enter the workforce wi thin a certain period 88— ensure access to child care
and other support necessary to the success of the program and its
participants, a group in which women of color are overrepresented. 89
Further, focusing on nonmarital families and the conditions necessary
for their flourishing could provide us with important information about
what works in such familial units and why. Instead of beginning with the
presumption that nonmarital families possess only “weakness[es] ” and
entirely lack strengths, 90 scholars and pol icymakers might be encouraged to
examine the nature of the capacities that fragile black families develop in
trying to navigate their circumstances. For example, some rese arch
indicate s that black fathers navigate the challenges of co -parenting better
than some other groups .91 Black men, in particular, do better maintaining
ties with their nonresident children than their white counterparts. 92
Developing programs that utilize these and othe r strengths, and focus on
generating new capacities in this realm , could be very beneficial.
These and other suggestions for better supporting nonmarital families
to ensur e that they are not left to shoulder the burden of dependency and
cumulative disadvan tage alone , could be beneficial to all families, but
especially those that are “fragile ” and black . While many of the benefits
discussed are economic in nature, the ideas explored here could generate
positive effects in other areas as well. Among other thi ngs, developing
nonmarital alternatives for family support would, as I have argued in other
87 See generally MAXINE EICHNER , THE SUPPORTIVE STATE : FAMILIES , GOVERNMENT , AND AMERICA ’S POLITICAL IDEALS (2010). See JILL ELAINE , FAMILY LAW REIMAGINED 53–54 (2014) (providing that “a ‘marriage bonus ’ exists when a married couple pays less in taxes than the couple would pay if unmarried ”); see also ROBERTS , supra note 30, at 213 –19, 223 (discussing issues of race and family cap programs generally and New Jersey f amily cap policy and welfare). 88 Ariel Kalil & Rebecca M. Ryan, Mother ’s Economic Conditions and Sources of Support in Fragile Families , THE FUTURE OF CHILD ., Fall 2010, at 39, 52; ROBERTS , supra note 30, at 219 –22. 89 See Id. at 215 (providing that “although most families who receive AFDC are not black, black women disproportionately rely on this form of government aid to support this childr en… it is fair to say, then, that welfare policies designed to discourage childbearing will disproportionately affect Black women and have these very women in mind. ”). For a recent example of a case in which the absence of such support led to one single, black mother ’s arrest and subsequent conviction, see Sarah Jarvis, Mom Who Left Kids in Car Sentenced to 18 Years Probation , USA TODAY (May 15, 2015), http://www.usatoday.com/story/news/nation/2015/05/15/shanesha -taylor -kids -in-car/27375405/. 90 MOYNIHAN REPORT , supra note 6, at 30. 91 Huntington, supra note 85, at 190. 92 Marcia J. Carlson et al., Coparenting and Nonresident Fathers’ Involvement with Young Children After a Nonmarital Birth , 45 DEMOGRAPHY 461, 473 (2008) Document1 (Do Not Delete) 4/8/2016 1:58 AM
2016] Black Citizenship Through Marriage? 361
work s, reframe notions of race, gender, and family -based citizenship
overall. Incorporating nonmarriage into family law and policy could —
insofar as they are likely to be the most unmarried group in the country for
some time to come — dramatically change how African Americans are
situated in the polity. 93
V. CONCLUSION:
THE PLACE OF BLACK FAMILIES IN THE NEW MOVEMENT
FOR CIVIL RIGHTS
This Article has challenged the histor ical, normative, and empirical
foundation for the narrative of “marriage as primarily citizenship
enhancing ” underlying the Moynihan Report. Yet, the Report ’s
conclusion — that matters of race and family should be at the forefront of
thinking about civil rights and opportunity — is one that I very much
endorse. A focus on ensuring the flourishing of all families, whether they
comport with traditional marriage norms or not, could go a long way
toward advancing black civil rights and belonging in the twenty -first
century .
93 See Ariela R. Dubler, In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State , 112 YALE L. J. 1641 , 1654 –60 (2003). Document1 (Do Not Delete) 4/8/2016 1:58 AM
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