Strict Scrutiny - BONUS: Melissa Murray on ACLU's "At Liberty"

Episode Date: November 11, 2019

The Supreme Court struck down bans on interracial marriage in Loving v. Virginia, the landmark ACLU case decided in 1967. But the government‘s regulation of marriage and sex didn’t start with anti-miscegenation laws or end with Loving. Melissa Murray — an expert in family law, constitutional law, and reproductive rights and justice at the New York University School of Law — discusses why the institution looms so large in America's past and present. This episode was recorded live at the Brooklyn Public Library, as part of “‘Til Victory is Won,” an evening commemorating the 400th anniversary of the arrival of the first enslaved Africans to America’s shores. Follow us on Instagram, Twitter, Threads, and Bluesky

Hey there, Strict Scrutiny listeners. This is Melissa Murray, and I have a really special podcast for you all. A couple of weeks ago, I sat down with the ACLU's Emerson Sykes to tape an episode of their podcast, At Liberty. And this podcast was focused on one of my favorite Supreme Court cases of all time, 1967's Loving v. Virginia, which as many of you know, was the case that struck down bans on interracial marriage across the United States. Emerson and I sat down as part of a larger conversation sparked by the 1619 Project, which was launched by journalist Nicole Hannah-Jones to consider the vestiges and implications of slavery on the history of the United States and its future. So when Emerson and I sat down, we were thinking specifically about the role that marriage has and implications of slavery on the history of the United States and its future.

So when Emerson and I sat down, we were thinking specifically about the role that marriage has played in fostering racial hierarchies throughout the United States over time and what marriage might mean going forward for racial progress and racial justice. So I hope you enjoy this. We are featuring this as a strict scrutiny podcast in conjunction with At Liberty, the ACLU's podcast. And we are really grateful to Emerson and Noa Yakote for their help producing this and for bringing it to you all. Thanks so much. From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU and your host. This week, we're airing a special conversation we recorded recently in front of a live audience about the landmark ACLU case Loving v. Virginia, which struck down bans on interracial marriage.

The discussion took place at the Brooklyn Public Library as part of an event titled Till Victory is Won, commemorating the 400th anniversary of the arrival of the first enslaved Africans to America's shores. I spoke with Melissa Murray, a professor at New York University School of Law. Our conversation covered the long history of legal restrictions on sex and marriage that have served to protect and reinforce white supremacy. I hope you enjoy. Good evening. Thank you very much for joining us. This is a great honor and a pleasure to be here with you and to be with Professor Murray. And I want to start out with a bit of a story about the folks that you see in this picture behind you.

In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. When the Lovings returned to their home in the state of Virginia, they were charged with violating the state's anti-miscegenation law, which banned interracial marriages. The Lovings were found guilty and sentenced to a year in jail. The trial judge agreed to suspend the sentence if the Lovings left Virginia for 25 years. They went to live with relatives in Washington, D.C. rather than face jail time, when they returned to visit family five years later, they were arrested for traveling together. Inspired by the civil rights movement, Mildred Loving wrote to the Attorney General, Robert F. Kennedy, for help. The couple was then referred to the ACLU. The Loving case reached the Supreme Court, which ruled in 1967 that

Virginia's anti-miscegenation law violated the Equal Protection Clause of the 14th Amendment. The decision struck down all state bans on interracial marriage. The loving decision, as you know, looms large in the American imagination. It's been the subject of children's books, films, and readings at weddings. It's a heartwarming story of a perfectly named family that just wanted to live together in peace. But of course, the story and the history is far more complicated, and that's why we're here. As you heard, my name is Emerson Sykes. I'm the host of At Liberty, the weekly podcast from the ACLU, and I'm also a staff attorney at the ACLU.

I'm thrilled to be here tonight with Professor Melissa Murray, the professor of law at New York University, a leading scholar and commenter on family law, constitutional law, and reproductive rights and justice, and she's also a co-host of the Strict Scrutiny podcast. Please be sure to subscribe to both At Liberty the Strict Scrutiny podcast. Please be sure to subscribe to both At Liberty and Strict Scrutiny. Professor Murray, thanks so much for being with us and welcome back to the podcast. But before we dive into our discussion, I wanted to invite Jason Lucas, an actor who's joining us this evening, to read a short portion of The Loving Decision to help us frame this conversation.

Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classification embodied in these statutes, classification so directly subversive on the principle of equality at the heart of the 14th Amendment, is surely to deprive all the state citizens of liberty without due process of law. The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.

Under our Constitution, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state. Thank you, Jason. So, Professor Murray, you've done a lot of thinking and writing

about the Loving case and its nuances, and in particular, its reasoning and its consequences in real life. We know the popular memory of this case is relatively straightforward, that love won in the end. But how do you view this case and its place in the history of the broader fight for civil rights? So loving is actually a kind of Johnny-come-lately to the civil rights movement. In 1954, probably the most important case in the civil rights movement is heard by the court, and that, of course, is Brown versus Board of Education, which strikes down laws mandating the segregation of public schools. Brown immediately sets off a huge firestorm in the

South, and it's not just because of the fact that Southerners are unwilling or don't want to integrate their schools. There is this secret fear that lurks at the heart of Brown. And the fear is that in time, integrated classrooms may lead to integrated bedrooms. So deep at the heart of Brown is this fear that if black children and white children go to school together, they will become familiar with each other. And the traditional barriers that have prevented racial mixing as a cultural matter in the South, not just as a legal matter, will break down and you will have more and more intermarriage. In the year following Brown, 1955,

there is a challenge to Virginia's Racial Integrity Act of 1924. And the case is called Name versus Name. The court gets this case. They grant certiorari, meaning that they're going to hear it. But then something happens. There's all of this conferencing. The Southern senators have released the Southern Manifesto. The South is in open rebellion over Brown versus Board of Education. And Justice Tom Clark writes in a memo that this case, name versus name, is a ticking time bomb. And the court gets rid of it on a procedural ground, digs it, says we're not going to have this, we're not going to hear this right now. That's 1955. It isn't until 12 years later when a number of the states in the

union have repealed or completely just ignored or haven't enforced their anti-miscegenation laws, and to the point where there are only 16 states left that actually do have these laws on the books, and they're all in the old confederacy. At that point in 1967, suddenly, when Mildred Loving writes her letter to Attorney General Robert F. Kennedy and then is referred to the ACLU, suddenly the court is in a more accepting and receptive place. In 1955, they are not receptive to this at all, but in 1967, there's been enough movement. And basically what the court is doing and loving is herding the recalcitrant South into line. There's already a kind of national consensus that anti-miscegenation laws are completely antithetical to the understanding of equality

that we have in our country. It's a fascinating story. And you talk about how this case is actually the Johnny-come-lately. It's towards the end of a much longer, but that's not to say there weren't always interracial relationships in some form. Marriages among slaves were not recognized by law. But can you tell us, what did the law have to say about interracial relationships prior to the Civil War? So prior to the Civil War, there were a number of legal prohibitions on interracial relationships and marriages. They come as early as the 1600s in the United States. So around 1670, you get the first laws

prohibiting interracial relationships and interracial marriages. And by some accounts, they are a response to Bacon's Rebellion, which happens in the 1670s and is essentially adjoining forces of white indentured servants and black indentured servants slash slaves. And so part of this movement in the wake of these rebellions by the planter class that needs slavery as part of the political economy of the South is to figure out how to divide these two groups of people. So white indentured servitude basically falls out of favor. And instead of indentured servitude,

you have a class of slavery, and slavery becomes almost entirely black. So part of this is to construct race, to construct slavery as blackness, and then to make clear that they cannot mix together. So not socially and certainly not romantically. And again, slavery at this time is a matrilineal institution,

which is to say that when children are born, their condition, whether free or slave, follows that of their mothers. So if your mother is free, you're born free. If your mother is enslaved, you too are enslaved. And so this creates enormous problems if you have free white women either marrying or having relationships with black men who are enslaved or free, right? So again, you will have a class of people who are mixed race, who have taken on the condition of their mothers, who are free. And so if part of what you're trying to do

is divide these groups of people, intermarriage laws are really important at this point in time. And again, Virginia is the first state to ban interracial marriage. They do so in 1681, and Maryland follows in 1682. And even at this point in time, they are not just about preserving a kind of racial hierarchy and racial divide. They're also promoting a kind of gender hierarchy. White women who are found to violate these laws are punished much more severely than white men. And again, all of this is sort of laying the foundation for what, after the Civil War, will become a kind of trope of pure Southern white womanhood that also gets reinvigorated and reinforced not only through miscegenation laws, but also through the practice of lynching. It's fascinating how the white supremacist goal,

which was overt, was layered on top of this gendered approach. As you said, slavery was matrilineal, but there was this sort of inherent difference in how relationships were viewed, interracial relationships, depending on the gender and the race of the person. Of course, this calls to mind loving. And I think it's hard to imagine that a story as heartwarming would have been embraced had it been a black man and a white woman. That is surely true. Not only do the Lovings have the best name of any would-be plaintiffs for an interracial marriage case. They also have the best sort of relationship makeup, right? She is a black woman, he is a white man. The reverse would be far more dangerous and much more controversial. I mean, there was a reason why the ACLU was absolutely delighted. In the 1960s, about five years before Loving was heard by the court,

there is another case out of Florida called McLaughlin versus Florida. And this is a case challenging Florida's law banning interracial sex fornication. And that features a black man, Dewey McLaughlin, and a white woman. And that is not nearly as popular or canonized. And part of it is it's a law outlying fornication as opposed to marriage. So it's really just seen as a kind of way station on the way to what would become Loving versus Virginia. But I also think part of the reason why it doesn't live large in our legal imagination is because the two people are much more controversial in terms of who they represent. You mentioned some of the precursor cases to Loving, and there was a case in 1883.

This was the first time that the Supreme Court evaluated an anti-miscegenation law, I believe. And the court affirmed an 1877 Alabama miscegenation law and Jason if you'd come back can you just read a portion of this Alabama law it's not the easiest thing to read but we would appreciate hearing it if any white person and any Negro or the descendant of any Negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county

for not less than two nor more than seven years. So the Supreme Court looked at this law, and they found that this anti-miscegenation law, in fact, didn't violate the Equal Protection Clause of the 14th Amendment because it applied both to white people and to black people. And this is actually a line of reasoning that we see come back in some of the gender-based cases later on around same-sex marriage. But the court also found that because interracial couples living together can't get married, that's off the table, then if they're living together, they must be

engaged in adultery and fornication. So it's a catch-22. No matter whether you're married, not married, it's illegal. And historian Peggy Pascoe has said that Pace allowed courts to construct a definitional circle in which all interracial relationships were defined as illicit sex. So what does that mean in terms of the legal legacy of this case, Pace v. Alabama? So, as you say, Pace is known as this post-Civil War case, one of the first cases that challenges an anti-miscegenation law under the 14th Amendment, which has just been ratified. So what is the meaning of this amendment and its protections if not to allow individuals to form interracial unions? And the court says, well, it's not a problem because we're punishing everybody the same.

So no worries here. But your point about PACE and this idea that the state is creating an entire universe where sex that is between persons of different races is per se illegal and illicit, and also a system where sex outside of marriage is per se illegal and illicit. I think you have to really think about both of those things. So the way I explain it is that marriage historically has always been the licensed site for sex. Like,

it's the reason why sex and procreation are always tied to marriage in the courts imagining. Sex outside of marriage is per se criminal in almost every jurisdiction until very, very recently. That always trips out my students when they find out that sex outside of marriage is a crime in a lot of states. Everyone starts looking at each other. I'm like, don't worry. Not anymore. And then everyone breathes a sigh of relief. But you think about this, and this isn't a case about rape, but I think the laws around rape also make this clear. So the common law definition of rape is the unlawful carnal knowledge of a woman, not your wife, forcibly and without her consent, right? So unlawful, not in marriage, not your wife, not in marriage. In the common law definition of rape,

one of the things that a woman has to show in order to prove that she has been raped is that it was without her consent. It was forcible. Part of the force requirement is to make sure that this is not something you wanted to do, because even if you did want to do it, that too would be illegal. Fornication is illegal. Basically, all sex that's not marital sex is a crime. And interestingly, rape in marriage is not a crime for a long, long time. So it's hard to think about loving without actually thinking about this larger history in which the state completely regulates sex in every dimension, either through marriage and the family or through crime, right? So you are either an in-law or you are an outlaw

in every sense of the word. Well, you mentioned that fornication was banned in many places for people of any race, but I also understand that there were top-ups. There were increased penalties if the fornication was interracial. This is exactly right. And this is what dooms the McLaughlin statute, the Florida statute challenging McLaughlin. It's not a situation like Pace versus Alabama where everyone is punished the same. It is clear, and it's on the face of the statute, that interracial sex carries a much higher penalty. And again, this is part of a state system of ensuring that romantic relationships, conjugal relationships are racially homogamous, racially the same. There is no heterogeneity between

romantic partners. So constructing an ideal of love that is basically same race. One of the things we've talked about before is the unique place that marriage has, because it's in some ways a religious institution, but it also is reflected in our civil law. And I think this is reflected when you look at some of the reasoning in some of the cases. The justification for this regulation of marriage, whether it's based on a sort of natural law, some religious right, some individual liberty, versus a civil right and the equal protection before the law. You talked about the fact that this law actually fell

because it wasn't equally enforced. But we see a lot of cases that really rely on this sort of natural law understanding of where marriage lies. And one of the first cases to strike down an anti-miscegenation law was in California. And it said basically that it's justified by a natural right, an expression of

individual liberty. Perez v. Sharp, can you talk about what it means to root marriage in this view of natural law as opposed to equal protection or other constitutional civil rights? Sure. So the part of loving that Jason read is actually the part that comes second. It's the due process part. Marriage is one of the basic civil rights of man. The majority of the case is actually the part that comes second. It's the due process part. Marriage is one of the basic civil rights of man. The majority of the case is actually based on this idea that Virginia has rationalized its anti-miscegenation law on no more pertinent a ground than white supremacy. Virginia is completely bald about this. We do not want the races mixing because we want racial purity. It's called the Racial

Integrity Act. And that's the reason the court strikes it down. White supremacy cannot ever be a reason to promulgate a law that classifies on the basis of race. And then the court turns to this due process argument, but not before it's addressed the question of equal protection. The Perez case, which is a 1948 case from California, and it is the first case where a state court of last resort strikes down an anti-miscegenation law in 1948. So we've been living with these laws up until 1948, and there are plenty of states who have them at this point, not just in the South, but even across the West and the Midwest. California strikes it down. It's written by Justice Roger

Traynor, a graduate of the University of California, Berkeley, where I used to teach. And he writes this opinion that is rooted in this idea of personal liberty, choice, autonomy. The idea of marrying someone, this act of self-definition, identification would be meaningless if it were constrained by the state's imposition of these kind of racial norms. So he says, you have a right. This means a right to marry the person of your choice, whatever that choice is. We don't actually get that in loving. We later get it in Obergefell. And I think Justice Kennedy, in the Obergefell opinion, this is the same-sex marriage opinion from 2015, latches onto this, although he doesn't really credit Perez versus Sharp or Justice Treanor for it. Well, so you're talking about the fact that

this is a legal fight, but it's also social norms are changing underneath the court leading up to loving. And we've talked about in the same sex marriage case in Obergefell, which eventually realized that the right to same sex marriage was a constitutional right. There was a debate within the LGBT activist community about whether or not prioritizing marriage was the best way to vindicate LGBT rights. Yes. I'm wondering if there was a similar analog in the civil rights community about whether or not a case like Loving was worth pursuing the time and the energy.

I mean, I think as an African-American, you know, we think about all of the rights and all of the ways in which institutions have oppressed African-Americans. And at the end of the day, the right, I mean, I'm someone who's married to someone who's not of my race, but at the end of the day, that right seems pretty low on the list of priorities. So was there a debate among activists about how much to put into a case like Loving? So not to my knowledge.

You were exactly right in the lead-up to same-sex marriage. And when I say the lead-up, I mean the lead-up from, like, the 1970s, from the beginnings of the LGBT rights movement to 2015. There was a pretty active debate within the LGBTQ community about whether marriage was something worth pursuing. I mean, this is a vestige of state control. It has incredibly gendered baggage. Since when is marriage a path to

liberation? My husband is in the audience. Exactly. So it's an active debate. It's not like this, I think, in the civil rights community, where I think for African Americans, respectability is so deeply linked, sexual respectability is so deeply linked to marriage. And especially for black women, there have been so many slights and associations with hypersexuality that I think marriage is very much seen as a kind of nod toward respectability. I mean, I think about when I was pregnant with our first child and, you know, my husband and I don't have the same last name. I kept my name and my fingers got so swollen. I couldn't wear my wedding ring. And this so alarmed my mother who was widowed when I was a teenager. And I remember saying like, well, now you have to take his name and get a bigger ring. And I was like, well,

I live in Berkeley. Like, no, you don't have to do any of those things here. And I just remember saying like, you have to wear a ring and you have to take his name, otherwise people will think you're unmarried and you have this baby and you won't be seen as respectable. You see that over and over again. I think one of the things you have to think about, not just for the black community and historically what marriage has meant, and after the Civil War, this was especially important because one of the key markers of enslavement was the inability to be married. So to be able to get into it is a huge thing. And I think it's a very different conversation in these two different sites.

The struggle for same-sex marriage and the struggle for interracial marriage because I just think it means a completely different set of things. Some of it associated with respectability that sort of carries over into both communities, but again, with very different overlays. One of the things you point out is the sort of limitations in terms of the real-life implications of the loving decision. Obviously, it's a landmark civil rights case, but as you point out, black-white interracial marriage

is still exceedingly rare, and the regulation of sex and use of the regulation of the family and of sex certainly continued to reinforce white supremacy and gender hierarchy post-loving. Can you talk about the real-life implications of the loving decision aside from the ability to get a marriage certificate? Sure. So I think one thing it's

important to realize is that, again, a lot of the laws dealing with sex were either laws about marriage or criminal laws criminalizing sex. So what loving does is it decriminalizes same-sex marriage and makes it eligible for state recognition as an actual marriage, right? I think that's really important to understand. It's also important to understand just decriminalizing something doesn't take away the antipathy we might feel about it, right? So loving happens in 1967. It's not as though everyone's like, I would love my white daughter to bring home a black man. No one says that, right?

And again, even to this day, the rates of interracial marriage between whites and blacks are relatively low compared to other groups. And that was exactly the same throughout the 70s and 80s and endures to this day. I mean, it's changing and there are more interracial marriages, but again, between that particular pairing, it still lags behind.

So the antipathy doesn't necessarily disappear. It just gets displaced. And so one of the things that I have studied is the way in which civil contexts become a place to channel that antipathy for interracial relationships when you can no longer make it criminally proscribed. And so there are a series of cases in the South post-loving, post-1967, where white women who have been married to white men and have white children and then get divorced subsequently lose custody of their kids when they enter into a relationship with a black man or marry a black man. And the courts are really interesting in how they justify this. So they know that loving is on the table. They cannot penalize her because of her marriage. So there are lots of other things that

they talk about, right? So they talk about the fact that, you know, everyone knows interracial marriages, like they have a lot of pressure on them. You really have to focus on your interracial marriage. So you don't need the extra pressure of your kids, right? Or your kids being raised in an interracial neighborhood, an interracial household. I mean, you think about the residential segregation that still endures even after these changes, that can't be good for them. That's not in their best interest. They should probably live with their dad. I mean, so a real kind of sense of fear

that these children are going to lose the trappings of whiteness that they had with their parents, but then also this sense that maybe she's done something wrong that I can't punish her for, but maybe I can punish her for. And I think, you know, if you're a mother, I don't think anything is more damning than being divested of your right to care for your children, right? I mean, like, it is a kind of punishment if you think about it. And you may not be able to penalize the marriage, but you can certainly penalize her conduct.

And in the vein of two steps forward and one step back, we mentioned the Obergefell decision and its reasoning, which is in some ways, even though it was pushing the boundaries of marriage in a quite significant way, was based on sort of an archaic understanding of marriage. So I want to bring Jason back one more time to read a quote from the Obergefell decision which recognized same-sex marriage under the U.S. Constitution. No union is more profound than marriage,

for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. So why does it matter that that was the reasoning that was used in that case?

So full disclosure, I hate this opinion. I really do. And I don't hate it because I am not in favor of same-sex marriage. I am in favor of same-sex marriage. But to me, this is the worst way to write this opinion. There's so many other ways you could have written this opinion.

You could have written it on equal protection grounds. Like the only reason to have laws prohibiting same-sex marriage are basically to uphold homophobia, like a true sort of analog to loving. You could have upheld it on a sort of liberty argument, but to say that of any kind of kinship relationship that you might imagine,

marriage is the most profound, the most important, I think really deserves all of the other relationships that you might, marriage may be one of the most profound, the most important, I think really deserves all of the other relationships that you might have. Marriage may be one of the most important, but surely the love that parents feel for their children and vice versa is as important. Certainly people feel that way. The relationship that siblings might feel for each other. I mean, again, this is written by a man who's very happily married, but also seems completely oblivious to the fact that 50% of marriages end up in divorce. It's completely oblivious to the fact that there are a number of marriages in the United States where violence is

a real issue. Part of this, I mean, you have to sort of see contextually, he's writing this opinion in 2015 where if statistics are to be believed, marriage is falling out of favor with everyone but the educated classes, right? The working class, the middle class can no longer uphold the sort of ideals of the traditional breadwinner dependent model that marriage has been rooted in for generations. The only people who can really do this are the people who are sort of economically elite. And so it's a kind of throwback opinion at a time where marriage is really up for grabs.

I think that's part of it. But again, this opinion, and the part that Jason didn't read is even more striking. I mean, Justice Kennedy says, marriage is a calling out in the dark and knowing that someone will answer and you won't be alone. It's like this sort of, you know, I've fallen and I can't get up. Where's my wife?

That can't be the reason you get married. It just shouldn't be. Well, it brings to mind the recent arguments in front of the Supreme Court around Title VII, which is trying to protect the rights of LGBTQ folks from being fired from their jobs because of their sexual orientation and gender identity. And what people have said is, look, not everybody gets married, but everybody needs a job. And obviously, as you said, the gender LGBTQ cases are quite different historically from the cases based on race. But we do see this sort of push and pull

of progress and limitations on that progress. And I'm wondering, as we look forward, both in the realm of racial justice as well as gender justice, what do you think is the next battleground in terms of marriage and the regulation of family? So I'm glad you called out the Title VII cases, which were argued in, I guess it was October 8th? October 8th. October 8th were the arguments. First of all, if you're not watching these cases, these are hugely important cases. They are basically deciding whether Title VII,

which is the federal employment discrimination laws, prohibition on discrimination based on sex also includes discrimination based on sexual orientation and gender identity. As you say, not everyone gets married. Lots of people have jobs. In fact, lots of people need jobs. So this is the kind of federal protection that's especially important for LGBTQ people who are federal employees, where Title VII is the only protection that you have against

discrimination on the job. Also for those who live in states that don't have their own state-level sexual orientation, anti-discrimination provisions. And the number of people that that includes is basically the same number of people who live in the state of Ohio. So it's a really significant number. It's a really important case. And, you know, I'm always reminded of this because in 2015, when Obergefell was decided, it was sort of pitched as this was the pinnacle, the apex of everything. Like now, you know, gay people had everything. I'm like, they don't have quite everything. Like there's still more and like, we've got to be thinking about all of this. So there's that. In terms of the sort of

what the landscape looks like going forward, I think we actually have to think really seriously about what non-marriage looks like. More and more individuals are choosing to live their lives outside of marriage, either because they want to or maybe they want to be married and they cannot find a partner because of the scourge of mass incarceration in certain communities, because of the uneven employment prospects in certain communities. These are not just marriage questions. These are economic justice and racial justice questions too. And we need to be attentive to that. We are more children being born into non-marital relationships than at any point in the history of this nation. And we have to grapple with the fact that for the United States, one of the reasons why marriage is so fundamental is because it is basically served as the way that we privatize the dependency of family members. We do not have a social welfare state the way they do in other advanced democracies. Marriage

is the way we patch together this tattered social safety net. Why is Justice Kennedy so worried about marriage? Why are conservatives so worried about marriage? Because if we don't have marriage, then we have to figure out how to create a welfare state, which we definitely don't have. There are lots of Scandinavian democracies where there isn't as much marriage. There also isn't the kind of family fragility that we see in the United States in the absence of marriage. And so I think going forward, we need to think about making marriage available to those who want it, but making marriage matter less in terms of social provision.

Well, I don't think we'll find a better place to land than there so I'll take this opportunity to thank Professor Murray for your time thank all of you for coming out and joining us this evening