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This chapter argues that the American Law Institute Principles of the Law of Family Dissolution intervened in cutting-edge issues at a time of flux in family law and elaborated a progressive agenda that gained traction in the years after the Principles’ publication. Beginning from the assumption that family law should reflect how people actually live, the Reporters developed a functional, rather than formal, approach to legal regulation. Such an approach, they believed, could vindicate commitments to equality and advance goals of predictability, consistency, and fairness. The chapter shows how concerns with intra-family inequality—particularly gender-differentiated roles in different-sex couples—and interfamily inequality—particularly marital-status distinctions that dovetailed with the exclusion of same-sex couples—led the Reporters to articulate generally applicable principles capable of accommodating families’ lived experiences. Explicit adoption of the Principles’ recommendations by courts and legislatures has been rare. Yet, the chapter rejects a view of the Principles as a failed project and instead understands them as a meaningful intervention in ongoing debates among courts, legislatures, advocates, and scholars. In recent decades, the Principles’ functional approach has grown across jurisdictions, spurred in part by efforts to eradicate inequality within and between families. Parentage law has turned to functional criteria to protect parent-child relationships regardless of the gender, sexual orientation, or marital status of the parent. While the Principles’ functional, status-based approach to nonmarital adult relationships remains a distinct minority position among U.S. jurisdictions, that approach continues to serve as a foundational authority in ongoing debates over legal remedies for unmarried partners.

Liberal feminism remains a significant strand of feminist jurisprudence in the United States. Rooted in nineteenth- and twentieth-century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism challenges unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second-wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally conceived gender roles and fostering meaningful autonomy, it adopts more a complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.

“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law (for example, systems of personal law, in which religious tribunals have such jurisdiction). In this chapter, I argue that an exercise in comparative law does reveal many different ways of allocating jurisdiction over family law, but does not answer the normative question of whether these are good models for U.S. family law. Challenging the call for a “multi-tiered” marriage, I analyze what form of marriage pluralism in the U.S. is sought and what might be motivating this demand. I examine differing views about whether there should be congruence between religious and civil marriage, illustrating with the controversy over same-sex marriage. I raise a normative concern over tensions between religious doctrines and key commitments, values, and functions of civil family law, illustrating with how state courts in the U.S. now navigate those tensions when asked to enforce terms of religious marriage contracts and other religious law. I am also skeptical as to whether a more pluralistic legal system can adequately protect the equal citizenship of women. Nearly every foreign example that proponents of jurisdictional pluralism in family law offer raises troubling question about how to reconcile sex equality with religious freedom. Feminist scholars highlight the importance of claims of national and constitutional citizenship as a strategy for redressing sex inequality, even as they affirm the value of membership in religious and cultural groups. Finally, I ask what lessons we might learn about legal pluralism from the recent controversy over religious family law arbitration (or “sharia arbitration”) in Ontario.

This chapter revisits controversies in the 1950s and 1960s over interfaith marriage. Commentators debated whether objections to interfaith marriage stemmed from bigotry and intolerance or legitimate grounds, such as lower rates of marital success. The chapter reviews diagnoses of such marriages as resulting from assimilation and increasing social contact among Protestants, Catholics, and Jews. Some contended that young people intermarried to protest against bigotry. Cautions against interfaith marriage—particularly mixed marriage, where spouses retained their distinct religions—appealed to science to fortify religious arguments. Objectors warned of harms to spouses’ conscience and to children’s sense of identity. Comparing diagnoses of both interfaith and interracial marriage as problem marriages, the chapter discusses Albert I. Gordon’s Intermarriage (1964), which featured in Virginia’s defense of its anti-miscegenation law in Loving v. Virginia (1967). The chapter ends by considering early twenty-first-century analyses of interfaith marriage.

This chapter analyzes Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held that the Colorado Civil Rights Commission showed animosity and hostility toward the religion of baker Jack Phillips. This case shows that rhetoric matters: the commissioners drew criticism for their comments about appealing to religion to justify discrimination. The chapter analyzes the arguments made in Masterpiece, highlighting competing appeals to Obergefell and the Civil Rights Act of 1964. Kennedy’s majority opinion enlisted civil rights precedent Newman v. Piggie Park Enterprises on the general rule that religious objections to gay marriage do not allow business owners to deny service to customers protected by public accommodations law. Masterpiece indicated guidelines for resolving future cases. The concurring opinion by Justice Bosson in Elane Photography, LLC v. Willock provides a valuable model: it speaks respectfully about religious beliefs, while also explaining what tolerance demands in the public square as the “price of citizenship.”

This chapter traces the Supreme Court’s evolving approach to the constitutional rights of LGBTQ persons and whether moral disapproval justifies discriminatory criminal or civil laws. It evaluates the bigotry versus morality dynamic in these cases. Justice Kennedy never referred to bigotry in his landmark opinions in Romer v. Evans, Lawrence v. Texas (overruling Bowers v. Hardwick), United States v. Windsor, and Obergefell v. Hodges, yet the dissenters claimed he branded traditional believers as bigots and their beliefs about sexuality and marriage as bigotry. The chapter considers the argument that animus, a term Kennedy used, is the same as bigotry. Kennedy’s Obergefell opinion nowhere mentions animus or bigotry, focusing on the harmful effects of laws barring same-sex couples from marriage. Although Kennedy referred to religious opponents of same-sex marriage as sincere, dissenters countered that his opinion invited treatment of believers as bigots, setting the stage for future threats to their religious liberty.

This chapter studies how arguments about bigotry, conscience, and legislating morality featured in legislative debate over the Civil Rights Act of 1964, particularly the public accommodations provision (Title II). President Lyndon B. Johnson urged clergy to support the act and help the United States overcome bigotry. Religious leaders testified for and against the law. Lawmakers and witnesses supporting the law insisted that the nation’s conscience demanded that Congress pass a law to end bigotry and racial discrimination. Opponents referred to bigotry in multiple ways: they argued that segregation reflected natural difference and God’s plan, not bigotry; that people had a right to be bigoted; and that the act’s supporters were the real bigots. The chapter concludes with two Supreme Court cases upholding Title II relevant to later constitutional challenges to civil rights laws protecting LGBTQ persons: Heart of Atlanta v. United States and Newman v. Piggie Park Enterprises.

This chapter argues that evaluating the arguments the parties made in Loving v. Virginia (1967), the iconic case in which the Supreme Court struck down Virginia’s anti-miscegenation law, aids in understanding puzzles about bigotry. Virginia attempted a modern, sociological defense of its racist law. Loving illustrates the role of generational moral progress in constitutional interpretation: laws justified by appeals to nature, God’s plan for the races, and children’s well-being were repudiated as rooted in racial prejudice, intolerance, and white supremacy. The chapter then considers Loving’s crucial (but contested) role in constitutional challenges to bars on same-sex marriage, first analyzing the successful challenge to Virginia’s defense of marriage law. It then analyzes the majority opinion in Obergefell v. Hodges, holding that same-sex couples have a fundamental right to marry; the dissenters argued Loving was inapt. The chapter concludes by discussing the role of moral progress and new insight in constitutional interpretation.

This chapter examines two significant stages in the scientific study of prejudice and intergroup relations as a resource for understanding bigotry. It illustrates the first, the post–World War II period, with Gordon W. Allport’s foundational The Nature of Prejudice (1954). The chapter explores the tension in Allport’s work between viewing the bigot as a distinct personality type and viewing prejudice and stereotypes as the outgrowth of ordinary cognitive processes. It analyzes other relevant features of Allport: the social contact hypothesis; the argument that “stateways” (antidiscrimination law) could change “folkways” by enlisting conscience to fight prejudice; and religion’s role in fostering but also condemning bigotry. The chapter explains how social scientists measured prejudice through people’s attitudes toward intermarriage. The second stage the chapter evaluates is study of implicit (or hidden) bias and unconscious cognition (“the bigot in your brain”). Such study maintains that people can recognize and fight those biases.

This chapter examines religious arguments criticizing and supporting Brown v. Board of Education (1954), which ruled “separate but equal” unconstitutional in public education. The chapter contrasts competing theologies of segregation and integration. It shows that segregationists rebutted charges of bigotry by appealing to morality, conscience, and scripture to condemn race mixing and intermarriage. Integrationists enlisted conscience to argue that segregationists distorted scripture and morality. Both sides, the chapter shows, also appealed to science, reason, and American political ideals. The chapter highlights the role of these competing theologies in controversies over Brown by revisiting a case study of the competing responses of the clergy to the 1957 school desegregation crisis in Little Rock, Arkansas. It then examines how Dr. Martin Luther King Jr. and other pro–civil rights clergy spoke of redeeming the segregator and rescuing the bigot. Civil rights clergy also worried about the church being on the wrong side of the desegregation issue.