‘Common Law’ Looks at Pushback Against Landmark Civil Rights Decisions in Family Law

As the Supreme Court has struck down laws that criminalized private behavior, other forms of legal and social regulation have taken their place, argues New York University School of Law professor Melissa Murray on “Common Law,” a podcast sponsored by the University of Virginia School of Law.

In episode 5 of the show’s third season, Murray discusses how the pattern repeats from the time when the Supreme Court decided that laws barring interracial marriage were unconstitutional in Loving v. Virginia in 1967 to today’s LGBTQ rights cases.

“When one regulatory domain closes, the interest in regulation doesn't dissipate or evaporate, it simply moves to another place,” she says. “So, for example, after Loving, it’s not as though everyone in the South or around the country, is like, ‘You know what? I really like interracial marriage. Like, all of those reservations I had, you know, five minutes ago, are gone.’”

Murray details on the show how white women in interracial marriages or relationships faced custody challenges over their children even when interracial marriages were legal. At the time Palmore v. Sidoti was decided by the Supreme Court in 1984, Linda Palmore had not seen her 6-year-old daughter for a year. Palmore’s ex-husband, Anthony Sidoti, challenged their custodial arrangement following Palmore’s marriage to an African American man. The Supreme Court ruled unanimously in Palmore’s favor.

“I think what these cases show is that there are limits to what we can do simply by withdrawing the force of criminal law,” Murray says. “There are other civil contexts that can be as pernicious, even if they’re not as obviously violent in the way that criminal law is.”

Murray said family law has always meant more scrutiny for the people involved in divorce or custody cases.

“Unless someone is calling the police on you, the law really has nothing to say about how you live your family life, but when you get divorced, you open yourself up to a kind of public scrutiny by the law that is really unparalleled.”

The same pattern has played out in LGBTQ rights cases, Murray said. When the Supreme Court decriminalized sodomy in Lawrence v. Texas in 2003, it paved the way for Obergefell v. Hodges, in which a 5-4 majority of justices ruled that the right to marry is guaranteed by the Constitution. Afterward, cases like Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission push back against the decision and convey “a kind of censure” of same-sex marriage, she says.

“I think what these kinds of episodes show is that law is imperfect in dealing with questions of social change,” she says. “Sometimes law and society work in tandem, and there’s that kind of feedback loop where what’s done in society is then reflected back in law, or what’s done in law is then shaping how people interact on the ground. But I think what’s really clear here is that it cannot be one or the other. It really has to be both/and.”

She added that rates of interracial marriage are still “remarkably low.” 

Murray is a leading expert in family law, constitutional law, and reproductive rights and justice, and is a co-host of the podcast “Strict Scrutiny.” Before earning her law degree at Yale, she received her undergraduate degree at the University of Virginia, where she was a Jefferson Scholar and an Echols Scholar. From March 2016 to June 2017 she served as interim dean of the University of California at Berkeley School of Law, where she had served on the faculty before joining NYU Law.

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, the show’s third season is focusing on “Law and Equity.”

While the themes of the first two seasons were temporal — the first focused on “The Future of Law” and the second looked back at “When Law Changed the World” — this season looks across time at a variety of legal issues, asking what equity means and examining how it interacts with law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.