Family Law Commons^™

Pregnant Workers Fairness Acts: Advancing A Progressive Policy In Both Red And Blue America, Deborah Widiss

Articles by Maurer Faculty

Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to stay on the job safely through a pregnancy. In the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divide in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay offers the first detailed case study of this remarkably effective campaign, and it shows how it laid the groundwork for analogous federal legislation, passed in December 2022, that ensures workers across the country will …

Intimate Liberties And Antidiscrimination Law, Deborah A. Widiss

Articles by Maurer Faculty

In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.

During the 1980s and 1990s, several …

Mini-Domas As Political Process Failures: The Case For Heightened Scrutiny Of State Anti-Gay Marriage Amendments, Steve Sanders

Articles by Maurer Faculty

No abstract provided.

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Articles by Maurer Faculty

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …

Changing The Marriage Equation, Deborah A. Widiss

Articles by Maurer Faculty

This Article brings together legal, historical, and social science research to analyze how couples allocate income-producing and domestic responsibilities. It develops a framework—what I call the “marriage equation”—that shows how sex-based classifications, (non-sex-specific) substantive marriage law, and gender norms interrelate to shape these choices. The marriage equation has changed over time, both reflecting and engendering societal preferences regarding the optimal allocation of breadwinning and caretaking responsibilities.

Until fifty years ago, sex-based classifications in family and employment law aligned with gender norms to enforce an ideology of separate spheres for men and women. The groundbreaking sex discrimination cases of the 1970s …

Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe

Articles by Maurer Faculty

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …