New Article: “Marital Status Discrimination 2.0”

New Article: Courtney G. Joslin, Marital Status Discrimination 2.0, 90 B.U. L. Rev. 805 (2015).  Abstract below:

In the 1970s, almost half the states enacted laws prohibiting marital status discrimination in a range of areas. The push to ban this form of discrimination, however, has largely been on hiatus since the early 1980s. This Article, part of a symposium on the 50th Anniversary of the Civil Rights Act of 1964, urges reconsideration of this largely forgotten civil rights category.

Although it has surely lessened over time, bias against those living in nonmarital families continues to be widespread. Close to half of the U.S. population believes that nonmarital cohabitation is bad for society, and nearly three quarters of American adults believe that single parenting is bad for society. But the reality is that a very large and ever-growing slice of the U.S. population lives in these very family forms. The number of nonmarital cohabiting couples has increased more than 1500% since 1960. Today, about 40% of all children are born to unmarried women. The nonmarital families who are the targets of this moral disapproval are disproportionately likely to be nonwhite, lower income, and less educated.

Moreover, in the last half-century, these relationships have moved from ones that were almost universally criminalized to ones that are entitled to at least some level of constitutional protection. In light of these demographic and changes, this Article argues it is time to reinvigorate the movement to prohibit discrimination on this basis.