Marital Status and Privilege

I. IntroductionAngela Onwuachi-Willig's powerful new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family,1 delves deeply into the intersections between race and family that remain to this day, despite facially race-neutral family law. The book expertly examines the unearned privileges that have long attached to monoracial marriage to the detriment of couples who did not, and do not, meet that ideal. Starting with a detailed analysis of the transcript and press accounts of Rhinelander v. Rhinelander-a sensational New York trial from the 1920s in which a white man sought annulment of his marriage to a woman of "racially ambiguous heritage,"2-and moving to contemporary interviews of twenty-one "black-white couples,"3 Onwuachi-Willig illustrates how law and society posit monoracial marriage as the ideal marriage. OnwuachiWillig then analyzes the consequences of that construction, revealing how the monoracial marital ideal produces race, maintains white privilege, and harms individuals who do not conform.Onwuachi-Willig's project is to bring all marriages into the privileged fold, regardless of the race of their participants. She calls on lawyers, lawmakers, and legal scholars to challenge the monoracial marital ideal in all its subtlety, including its operation in domains outside of the home. In doing so, Onwuachi-Willig seeks to transcend the limits of a legal regime rooted in formal equality, setting forth reforms designed to distribute the benefits and security of marriage to all spouses and their children regardless of race.Onwuachi-Willig's project is important in and of itself, as it strives to make family law substantively equal for all. At the same time, OnwuachiWillig also lays the foundation for a different project, one that thoroughly interrogates the ways that marital status itself maintains hierarchies of privilege. This Article takes on that project, examining how OnwuachiWillig's challenge to the monoracial marital ideal, without more, may limit understandings of relationships and race. In contrast, a broader challenge to the marital ideal provides fodder for new ways of imagining both. Part II situates Onwuachi-Willig's analysis within the general regulation of marriage, both legal and extralegal. Part III examines the invisible privileges attaching not just to monoracial marriage, but to marriage as a distinct form of relationship. Part IV then builds upon Onwuachi-Willig's novel insight that monoracial marital privilege extends beyond the social sphere to the workplace, arguing that Onwuachi-Willig's account leads to consequential new understandings of the relational nature of race.II. The Power and Limits of Marital StatusStates have long permitted some, but not others, to obtain the legal status of spouse.4 As Onwuachi-Willig emphasizes, many of these restrictions historically worked to the detriment of African Americans.5 Until the passage of the Thirteenth and Fourteenth Amendments, slave states generally did not permit slaves to marry legally.6 Many states-slave and free-also mandated that white people marry other white people, and such restrictions persisted well into the twentieth century.7 Indeed, at the time of the Supreme Court's 1967 decision in Loving v. Virginia, which held such anti-miscegenation laws unconstitutional, sixteen states "prohibited] and punish[ed] marriages on the basis of racial classifications."8In addition to anti-miscegenation laws, states limited access to legal marriage in other ways that were also subsequently deemed unconstitutional. Asian immigrants encountered numerous obstacles to marriage, imposed by both state and federal law, even when they sought to marry other Asian immigrants.9 Some states required individuals paying child support, no matter their race or the race of their proposed spouses, to obtain judicial approval to Some states prohibited prisoners from marrying)11Although states may no longer limit legal marriage in these ways, restrictions on marriage still remain. …