Article published in Washington University Law Review, Volume 97, Issue 4

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In 2017, the Supreme Court decided Sessions v. Morales-Santana, a challenge to 8 U.S.C. § 1409, the law governing the conferral of U.S. citizenship to children born abroad to parents who are U.S. citizens. As the Court noted in a forceful opinion, § 1409 imposed different and more onerous physical presence requirements on unwed fathers than unwed mothers, making it difficult for nonmarital fathers to transmit their U.S. citizenship to their foreign-born children. Such distinctions, the Court concluded, were rooted in archaic gender stereotypes and thus incompatible with equal protection principles.

Although Morales-Santana corrected the gender discrimination inherent in § 1409, it said nothing of the statute’s other constitutionally infirm provisions. Although it has drawn little attention, § 1409 also discriminates on the basis of illegitimacy, which like gender, is a quasi-suspect classification for purposes of equal protection law. Specifically, § 1409 requires nonmarital children to prove that they have been legitimated by their unwed U.S. citizen fathers to establish their derivative citizenship claim. By contrast, foreign-born children in wedlock need not show that they have been legitimated; by virtue of their parents’ marriage, they are legally recognized as “legitimate” children. These legitimation requirements have made it more difficult for foreign-born nonmarital children of U.S. citizen parents to prove what should be regarded as their pre-existing citizenship. Crucially, in general, laws such as these that distinguish on the basis of a parents’ marital status constitute illegitimacy discrimination. Yet, the Court in Morales-Santana neglected to acknowledge this unequal treatment of nonmarital children, focusing instead on how § 1409 discriminated on the basis of gender and effectively allowing this unconstitutional practice to continue.

This Article calls attention to the prevalence of illegitimacy classifications in immigration law by identifying what we term “illegitimate citizenship rules.” In highlighting the pervasiveness of this form of discrimination, this Article makes three contributions. As a descriptive matter, these rules demonstrate the unfinished project within equal protection law of eviscerating discrimination against nonmarital children, which includes the treatment of such children in immigration law. As a doctrinal matter, the Article argues that the Supreme Court’s narrow focus on the sex equality dimension of § 1409 rendered invisible the discrimination against nonmarital children. Finally, as the Article makes clear, by discriminating against nonmarital children, illegitimate citizenship rules promote and perpetuate the “traditional” family and thus discriminate against those families that do not comport with the heterosexual marital family model. The Article concludes by recommending that Congress seize the opportunity created by Morales-Santana to address and eventually eradicate the ongoing discrimination against nonmarital children who are born abroad.

This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced based on race. The role these market practices play in naturalizing segregation and promoting racial inequality has been recognized, but curiously there has been no will generated to address this commercial practice head-on. This Article explores the cultural and regulatory impasse that must be overcome to address this racial phenomenon. Part I probes the racial categorization practices currently used in the ART market to provide a better account of what is actually being exchanged when parties purport to sell racially marked ova and sperm. After exploring the high risk of fraud, confusion, and potentially misleading speech, the Article demonstrates how gamete banks’ current racial categorization practices could thrust courts back into discredited, antiquated legal arguments about racial purity and racial fraud. Part II probes customer preference claims about race to determine what it is consumers believe they are buying when they purchase race in the ART market. Close examination of customers’ arguments reveals the residual influence of anti-miscegenation norms, regressive femininity and masculinity constructs, and a desire to outsource the challenges associated with achieving racial equality. Part III asks whether our Fourteenth Amendment racial equality guarantees require government to wholly prohibit ART exchanges based on race, and explores the likely resistance regulators will face based on reproductive freedom concerns. Part III concludes by exploring First Amendment considerations, specifically, whether government speech doctrine allows states to combat regressive ART messages based on race, or whether commercial speech limitations could be used to limit ART marketers’ more destructive race-based messages.

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This week was a double barrel blast to the notion that what American politics needs is more “likeable,” ever-smiling, milquetoast women.  Instead the nation’s attention was riveted as two steel-willed women heeded the call of the House of Representatives and appeared at impeachment hearings to do the hard work of reclaiming our democracy.   Ambassador Marie Yovanavich and Foreign Affairs Specialist Fiona Hill for a brief moment seemed to leapfrog over the “likeability” factor that has sandbagged American Presidential candidates, hobbled our most accomplished politicians and driven women from public life.  When the stakes were high America temporarily suspended it’s demand for female smiles and pleas for acceptance.  In that moment we got a glimpse of our future and our promise.  Unlikeable women just may be what is needed to save American democracy.

Regardless of one’s political party, one could not help but be stunned by the enormous patriotism, staunch reserve and the non-partisan, just the facts presentation of both witnesses.  Both provided credible evidence of issues that raise impeachment concerns. Dr. Yovanovitch spent decades fighting Ukranian corruption overseas only to see her efforts reduced to a school yard jibe from the President that she was “bad news.”  The move to eliminate her and clear the path for a more pliable ambassador attentive to the President’s personal interests only made her strength more clear.  Also, Dr. Hill, a Harvard-trained Russia specialist, who is widely recognized as a leading expert in the field, documented how American foreign policy interests with Ukraine were being reduced and compromised by the President’s insistence that public officials attend to what was actually a domestic “political errand.”  We were and rightly should be aghast at these accomplished women’s reduction to mere trivial characterizations and assignment to trivial tasks.

As gender studies scholars we are all too familiar with the Hilary Clinton problem of American Presidential politics.  Clinton did not invent this problem but she has come to represent it.  It is also referred to in some contexts as the ‘double bind’: women must seem likeable to American voters (meaning soft and feminine) to get votes, but if they are too likeable voters will not trust them to do the hard work of running the free world.   As a result female politicians whip saw back and forth between likeability and stoicism – a problem that then makes them seem inauthentic to American voters.   Hill and Yovanavitch may come to represent the moment when we clear away the likeability cobwebs that cloud our assessment of female strength and leadership. America can now see clearly as a result of the examples they provided.

Certainly the spectre of sexism loomed in press coverage.  There is nothing some press pundits love more than proof of an emotional woman.  Ample press time was spend on Ambassador Sondland’s account that Dr. Hill as “shaking” and “upset” when she confronted him about his participation in Guiliani’s mission in Ukraine to launch an investigation into the Biden family. Also ample time was spent on Dr. Yovanavitch’s comment that she “turned white” and the blood drained from her face when she heard Trump’s characterization of her activities.  It seemed that these strong women in some accounts would be reduced to mere moments when they seemed capable of dissolving into tears or suffering a fainting spell.  Yet we submit that neither of these moments of emotion were sufficient to distract from the picture of strength these women painted for the American people

Furthermore, the adoption of truly feminist values means that emotion gets credited in political debates.  It is not as a distraction. Rather, when displayed in measured tones, it can be a source of insight. For example, we should recoil in horror at the notion of keeping children cages. Feminist values should make us reassess the ‘emotion’ attacks levied against female candidates on the Presidential debate stage and in our political commentary.  Should we credit Joe Biden’s allegation that Elizabeth Warren is too angry?  Will Kamala Harris fall prey to the angry woman stereotype too as a way of discrediting he?   Dr. Hill acknowledged that women who become angry are perceived as “emotional,” irrespective of whether such anger is grounded in deep concerns about urgent threats to national security. She is right.  Instead of asking whether Elizabeth Warren, Kamala Harris and Amy Klobuchar are angry we might do better to ask what they are angry about.  Instead of asking whether they are too angry we might do better to ask why are our male candidates so sanguine and affably optimistic about the state of American democracy and politics.

We suspect many Americans are ready and willing to break the old mold of leadership in favor of a new day. We suspect they are capable of seeing female strength and assessing emotion intelligently, in both women and men. And we fear the future for an America that refuses to see strong, competent women as likeable, competent and electable.  The examples are before us.  The time has come to ask whether the American voter is a likeable character, for we will not like ourselves very much if we lose a generation of essential female leadership because of America’s unhealthy attachment to gender stereotyping.

The troubling implications of our favorite quarantine distraction

There is one thing, aside from COVID-19, that is monopolizing my group discussions right now: Tiger King. It is a Netflix documentary series exploring the outrageous and often illegal escapades of a group of for-profit exotic animal breeders. The show centers around a gun-toting, mullet-wearing, gay tiger breeder named Joe Exotic.

While the show’s plot itself is admittedly shocking and bizarre, there is an undercurrent of social class voyeurism that contributes to making the show so gossip-worthy.[1] Social class in America is a taboo discussion topic; we politely ignore its existence, instead of referencing imperfect proxies like race, education, and profession. Even while refusing to acknowledge that we live in a class hierarchy, however, many Americans limit their interactions to people in their own class.[2] Our self-selection reinforces the invisibility of social class in our daily lives.[3]

This is part of what makes Tiger King so fascinating: it gives members of higher social strata a “safe” glimpse into a social class other than their own. It is the same reason we love following the Kardashians and the Real Housewives. We have limited real-life exposure to other social classes, and we are naturally curious about how their lives compare to ours.

In my social circles, we are in our mid-to-late twenties and live in large, coastal cities. We go wine tasting and travel to Europe. We have skincare routines and listen to podcasts and overpay for restaurant items featuring avocado or truffle. We all have straight, white teeth. Each of these is both a signal to new acquaintances in the same social class — “I am one of you” — and fodder for shared discussion, for mutual understanding.[4] The same cues that draw us to one another based on the inherent comfort of similarity also reinforce beliefs of our social class as “normal” and lower social classes as “other.”

Immediately upon starting Tiger King, we recognize that most of the cast members do not belong to our class. They come from a certain subset of the rural, white lower class to which we rarely have access. They are missing teeth; they have tattoos; they eschew both social and grammatical correctness. They shop at Walmart and ride motorcycles. At times, the display of these characteristics feels particularly intentional: cast members are interviewed while shirtless in trailers; cameras zoom in on tattoo sleeves and rotting teeth and cigarette-wielding hands. Each of these is a cue to folks with more privilege that “they” are not “us.”

This is why Tiger King provides such a delicious escape for us, particularly at this moment when we are all desperate to escape from reality. With Tiger King, we can skip the discomfort of real, in-person interactions with those in a lower social class than ours — interactions in which we would feel out of place and unsure of behavioral norms. We can entertain ourselves with their poverty from a safe, CDC-approved distance.

This class tourism may not be as harmless as it seems. Social class resentment, though rarely acknowledged as such, plays a significant role in the polarized nature in our politics. We use terms such as “working-class whites” and “the rust belt” when we really intend to signify social class. We discuss discontent directed at “coastal elites,” when we really mean anger is directed higher up on the social totem pole. Hiding in plain sight in Tiger King, behind Joe Exotic’s outrageous antics, is the appalling plight of the operations’ employees. Many have struggled with addiction, incarceration, and homelessness; they submit to abusive employment at these animal operations because of their dearth of alternatives. They are the key to understanding our divided politics.

Class resentment informs electoral choices. Social class factors into why my social circles overwhelmingly supported Elizabeth Warren and Pete Buttigieg, but neither candidate made meaningful headway in the Democratic primary.[5] Both candidates speak in the language of the academy, discussing complex political issues with nuance and eloquence.[6] Their professorial approach feels familiar to the highly educated, but perhaps strikes as elitist the nearly two-thirds of the country without a bachelor’s degree.[7]

Donald Trump, despite his celebrity and education and wealth, speaks in the language of a lower social class. His rhetoric, generally free of academic jargon, is simple — “build the wall” — and laced with resentment for the status quo — “lock her up.” His approach has undoubtedly appealed to many disaffected white, lower-social-class individuals like those serving as our entertainment in Tiger King. These folks have few options for an upward social trajectory and harbor significant discontent towards the establishment.[8]

Herein lies the sinister link between the rise of Trumpism and our seeking distraction in the poverty of the white lower class. As uncritical Tiger King viewers, we utilize the less fortunate for amusement, while doing nothing to improve the inequities that first led to our disparate places in the social hierarchy. We must start to talk about social class in less euphemistic ways; to acknowledge that it is real, it permeates our culture, and it has consequences. We may limit our interactions with those in other social classes, but they still have an impact on our lives and we on theirs. There is nothing like a pandemic to shine a spotlight on this reality.

Far beyond its entertainment value, Tiger King provides us with an important glimpse into the lives of pivotal 2020 voters. How might Joe’s employees benefit from universal healthcare, from ban-the-box movements, from addiction treatment reform? We must learn to speak not only about issues important to this demographic but in a manner more resonant to them; polished, academic prose is likely not the winning strategy. We must also substitute empathy and humility for the condescension with which we sometimes discuss the lower class. We were social distancing from these individuals before it was cool; it is time we start listening to them.

[1] VanArendonk, Kathryn. “A Debate About Tiger King Between Me and Myself.” Vulture, 26 Mar. 2020,; see also Andrade, Gabriel. “What Netflix’s ‘Tiger King’ Teaches Us about Race and Class in America.” Merion West, 2 Apr. 2020,; Pollard, Alexandra. “Is Tiger King Just a Celebration of Abuse?” The Independent, 6 Apr. 2020,

[2] Côté, Stéphane, and Michael W. Kraus. “Crossing Class Lines.” The New York Times, 3 Oct. 2014, (“[P]eople tend to interact almost exclusively with people who share similar educational histories, incomes and occupations — and when they do interact with others from different social classes, even as friends, those relationships seem fraught with misunderstanding and tension.”).

[3] Isenberg, Nancy. White Trash: The 400-Year Untold History of Class in America. Viking, 2016, p. 7 (“Americans do not like to talk about class. It is not supposed to be important in our history. It is not who we are.”); “Social Class as Culture.” Association for Psychological Science, 8 Aug. 2011, (noting that although Americans “think class is irrelevant,” recent “studies are saying the opposite: [t]his is a profound part of who we are.”) (quoting Dacher Keltner).

[4] See generally Kraus, Michael W., et al. “Signs of Social Class: The Experience of Economic Inequality in Everyday Life.” Perspectives on Psychological Science, vol. 12,3 (2017): 422–435. doi:10.1177/1745691616673192.

[5] Yglesias, Matthew. “Why Elizabeth Warren Is Losing Even as White Professionals Love Her.” Vox, 3 Mar. 2020,

[6] Id.

[7] Id.; US Census Bureau. “CPS Historical Time Series Tables.” The United States Census Bureau, 9 Mar. 2020,

[8] Kraus et al., supra note 4, at 431 (noting that many lower class individuals have “come to distrust a political system that ignores their own daily economic struggles.”); Andrade, supra note 1.

Photo credit: ©Netflix


As Americans celebrate the 100-year anniversary of the Nineteenth Amendment’s ratification, our celebration would be premature if we failed to reflect on the ways that race has been used to fracture women’s efforts at coalition politics and our understanding of women’s rights. Indeed, a careful reading of U.S. history and contemporary politics shows that although similar rights claims are made across a diverse community of American women, women’s shared interests are often obscured by the divisive manipulation of race. Notably, 2020 is also the 150-year anniversary of the Fifteenth Amendment, which granted the right to vote to Black men. In this Article, we use the coinciding anniversaries of the two amendments as a critical opportunity to direct feminist attention to intersectional questions—to frame this historical moment as a pivot point that explores the mutually constitutive nature of gender and racial subordination in American politics.

Review published at Jotwell.

Last year, Obergefell v. Hodges seized center stage as many family law scholars began evaluating the implications of the Supreme Court’s decision recognizing gay Americans’ constitutional right to marry. Other scholars, however, remained more interested in exploring the inverse phenomenon: the decreasing relevance of marriage and married life for many Americans. Specifically, research shows that many poor and working class Americans no longer find marriage to be a precondition for romantic relationships or parenthood. This group of Americans has formed what Huntington calls “postmarital families.” In her wonderful article, Postmarital Family Law: A Legal Structure for Nonmarital Families, Huntington explores the legal implications of this dramatic cultural shift.

Huntington begins by rendering visible the bifurcated world we currently inhabit now that marriage is no longer the institution that constitutively defines all families. One group of Americans, a relatively wealthier group, lives in marital families; the other, composed of less financially secure individuals, has formed nonmarital, or “postmarital,” family units. Yet family law, she argues, still treats all families as though they are marital families. As a consequence, “postmarital” families are forced to navigate ossified legal presumptions, ill-fitting rules, and institutional structures designed around marriage. Huntington’s discussion successfully renders visible postmarital families’ specific, unique dynamics and further reveals the way existing family law aggravates these families’ special vulnerabilities. She also shows how family law—its legal norms and institutions—must evolve to address postmarital families’ unique problems.

One of Huntington’s most compelling examples is her discussion of child custody. As she explains, the default presumption in many states is that when parties are unmarried, sole custody of a child is awarded to the mother. (P. 204.)1 By contrast, when couples are married, no determination of custody is made and legal presumptions vest both parents with custodial rights and other parental prerogatives.2 Huntington further shows that laws vesting sole, primary custody with unmarried mothers aggravate existing tensions in postmarital families. Specifically, they facilitate maternal gatekeeping, a dynamic in which mothers control nonresident fathers’ access to their children. (P. 204-05.) To exercise their custody rights, fathers in postmarital families must petition the court for relief, a remedy that is far too complex and expensive for most postmarital fathers. Further aggravating matters, the only default regulations that actually affect postmarital fathers are child support regulations. Child support regimes focus solely on financial contribution, enforcing a de facto (male) breadwinner standard derived from marriage. This breadwinner standard sets up poor unemployed or underemployed fathers for failure. (P. 207-08.)3 Moreover, the law’s emphasis on financial contributions from fathers, rather than ability to provide care, encourages even more resentment from mothers in postmarital families, fueling acrimony between the parties.

After describing how the current legal rules aggravate dynamics specific to postmarital families, Huntington points to research showing that children benefit when both parents are able to maintain engaged and loving relationships with them. (P. 173.) She also points to the growing cultural understanding that children require more than economic contribution from their fathers, and that paternal care has value as well. Huntington then offers a postmarital law solution: at the birth of their child both postmarital parents should be given enforceable legal and physical custody rights to the child. Equally important, they must be provided with a dispute mechanism that requires parties to cooperate and jointly work out custodial arrangements. (P. 209.)

Many of Huntington’s suggested innovations for postmarital family law are bound to trigger pause. These proposals include tying child support regimes to child custody and visitation regimes, and in this way securing postmarital fathers’ consistent access to their children. Also, questions remain about how many of her custody and child support proposals would play out on the ground in poor and working-class communities. Yet, regardless of whether one agrees with all of her suggestions or specific calls for changes in the law, Huntington charts a course that allows us to bring postmarital families’ key concerns to the fore.

Importantly, legal scholars should find value in the piece, even if they question her specific proposals, for Huntington also provides a way out of a key logjam in scholarly debates about family law norms. One camp seeks to strengthen the norm of marriage; the other camp proposes we shift to a family law model that concentrates more on strengthening and supporting parent-child relationships. (P. 172.) Huntington instead argues postmarital couples’ post-union relationships cannot be disaggregated from the effects these relationships have on their children. When a couple’s romantic connection wanes, postmarital families need an administrative or institutional mechanism that allows them to set rules and develop expectations around their mutual co-parenting roles. (P. 231.) Huntington explains that divorcing couples —putting aside the existing problems in divorce law and family law institutions4—know they can depend on an established structure for working through conflicts as they shift to a co-parenting relationship. Huntington seeks to provide the same benefits to co-parents in postmarital families.

Huntington also does an outstanding job pushing family law scholars to confront their deepest anxieties about how postmarital families operate – and she shows that we can do so without pathologizing the families involved. Specifically, Huntington openly and honestly engages with the churning dynamic that seems to affect modern postmarital families. (P. 195.) Many co-parents, particularly male parents, find it hard to maintain relationships with their children because the children’s mother goes on to form a new relationship, and often a new postmarital family. When this second postmarital family is formed, the biological father of children from the first postmarital family tends to get crowded out of his children’s lives. Also when a mother takes a new partner and has another child, her new partner may not devote the same care and attention to biologically-unrelated children in the family as he does to his own. A postmarital father with children may also form a second postmarital family, thus weakening his connection to his children from his prior relationship. Alternative dispute resolution agencies could serve an important role here, helping postmarital families develop co-parenting standards that manage these kinds of disruptive family changes. It is refreshing to read a family law analysis that deals with the problems caused by parents’ shifting romantic allegiances without casting judgment on those involved.

In short, Postmarital Family Law is likely to become a key resource for family law scholars interested in charting the dynamics of family life outside of the traditional nuclear family. Huntington’s careful, respectful, and creative approach to understanding postmarital families makes the article an exemplary piece of scholarship. Her work demonstrates the rich possibilities that are available when we shift our attention away from so-called traditional families and consider new family forms without pathologizing these alternative arrangements. She further shows that we can identify the core values that must be advanced to cultivate a nurturing and supportive family unit for children. Scholars can then use these values to imagine new legal structures that are more attentive to contemporary material and social conditions.

  1. Fifteen states have statutes that provide for this default rule. (P. 204 n. 204.) The maternal custody presumption continues to be enforced in these states despite the fact that these laws appear to violate basic equal protection standards. By contrast, some state statutes technically give both parents equal rights to a “parental relationship” when they have a child out of wedlock; however, these statutes still as a practical matter do not guarantee fathers’ custodial rights. (P. 204.) Courts may recognize a party as a legal parent, but give that party no custodial rights until one petitions for relief. This regime often adversely affects nonmarital fathers.
  2. As Huntington explains, courts assume that marital families have two emotionally invested parents deserving of legal rights, and nonmarital families have one, the mother. As a result, nonmarital fathers are forced to jump multiple hurdles to establish legal rights and authority over their children. (P. 203-04.)
  3. Some would argue that child support law is actually a kind of postmarital law, as it has been historically used to ensure unmarried fathers support their children.
  4. Huntington recognizes that family law is far from ideal at present and that the divorce process presents challenges for marital families. However, she explains that these problems in family law are beyond the scope of this project. They are not relevant to her current concern: exploring the way laws premised on marriage create problems for unmarried persons. (P. 171 n. 17.) Scholars may disagree with her view, and see productive commonalities shared between divorcing and postmarital mothers.
Cite as: Camille Gear Rich, Adventures in Co-Parenting: Charting a Course for Postmarital Families, JOTWELL (August 2, 2016) (reviewing Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167 (2015)),

Review of Marriage Markets, How Inequality Is Remaking the American Family by June Carbone & Naomi Cahn published in the Texas Law Review, Vol. 94:387.

Partial Introduction

Obergefell v. Hodges, the recent Supreme Court decision recognizing gay Americans’ right to marry, demonstrates that the United States continues to promote marriage in both direct and subtle ways. Obergefell is one of the government’s less subtle recent efforts to market marriage. The decision makes it clear that from the State’s perspective, marriage remains a near ideal form of social union. As Obergefell explains, marriage in the United States is an institution of “transcendent importance”; it is “essential . . . to the human condition.” Marriage is special because it “allows two people to find a life that could not be found alone.” The Supreme Court’s romantic musings in Obergefell about the centrality of marriage will seem particularly ironic to readers of the book Marriage Markets: How Inequality is Remaking the American Family, for the Court’s words stand in stark contrast to the account the book’s authors provide of the marriage market in the United States.