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66 Hastings L.J. 1317 (2014-2015)
Marriage as Black Citizenship

handle is hein.journals/hastlj66 and id is 1423 raw text is: 









               Marriage as Black Citizenship?


                                 R.A. LENHARDT*


The narrative of black marriage as citizenship enhancing has been pervasive in American
history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to
celebrate the i5oth anniversary of Thirteenth Amendment, this Article argues that this
narrative is one that we should resist. The complete story of marriage is one that involves
racial subordination and caste. Even as the Supreme Court stands to extend marriage
rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a
legitimate frame for black loving relationships -gay or straight. Nonmarriage might do
just as much, if not more, to advance black civil rights.

Part I explores marriage's role in racial subordination by looking at the experiences of
African Americans, as well as Native Americans, Puerto Ricans, and Asian Americans.
Drawing on institutional structure analyses, it then considers how legal marriage has
married Blacks to second-class citizenship. Part II explores the current place of
marriage in African America. It argues that, while the regulation of black loving
relationships today differs dramatically from what we saw in earlier times, family law
often has a punitive effect on such American families. Part III contemplates the benefits
of adopting a focus on nonmarriage. It contends that meeting black families where they
are holds the most potential for progress in addressing the structural barriers to success
faced by those families. The Article ends with a call to action for legal scholars and
others concerned about black families and citizenship. It maps a broad agenda for
exploring in earnest the potential that supporting and valuing the existing networks,
arrangements, and norms regarding gender and caretaking in African America has for
promoting black citizenship and equality in the twenty-first century.




     * Professor of Law, Fordham Law School. Brown University, A.B.; Harvard Law School, J.D.;
Harvard University John F. Kennedy School of Government, M.P.A.; former Law Clerk to Justice Stephen
G. Breyer. This Article is dedicated to the two Marys. I wish to thank Michelle Adams, Rick Banks, Elise
Boddie, Devon Carbado, Bill Crawley, Eleanor Brown, Sheila Foster, Katherine Franke, Rachel Godsil,
Michelle Goodwin, Jennifer Gordon, Olati Johnson, Clare Huntington, Sonia Katyal, Holning Lau, Serena
Mayeri, Mellissa Murray, Angela Onwuachi-Willig, Kimani Paul-Emile, Russell Robinson, and the
participants of the Emerging Family Law Scholars Workshop for very helpful comments and discussions
in connection with this Article. I am grateful to Fordham Law School, Juan Fernandez, Will Fullwood,
Kwame Akosah, Molly Ryan, Peter Torre, and Sara Jaramillo for critical research support.


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