The Common Law Examines the Retreat of Historic Civil Rights Decisions in Family Law



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

In Episode 5 of the show’s third season, Murray explains how the pattern repeats itself from the time the Supreme Court ruled that laws banning interracial marriage were unconstitutional in Love c. Virginia in 1967 to today’s LGBTQ rights cases.

“When a regulatory area closes, the interest in the regulation doesn’t dissipate or evaporate, it just moves to another location,” she says. “So, for example, after Magnet, it’s not like everyone in the South or in the country is like, “You know what? I really like interracial marriage. Like, all these reservations that I had, you know, five minutes ago, are gone.

Murray details the show on how white women in marriage or race relations face custody issues even when interracial marriages are legal. At the time Palmore vs. Sidoti was ruled 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 has challenged their custody arrangement after Palmore’s marriage to an African-American man. The Supreme Court ruled unanimously in favor of Palmore.

“I think what these cases show is that there are limits to what we can do just by removing the force of the criminal law,” Murray says. “There are other civil contexts that can be just as pernicious, even if they are not as blatantly violent as the criminal law.

Murray said family law has always meant more scrutiny of those involved in divorce or custody cases.

“Unless someone calls the police on you, the law really has nothing to say about how you live your family life, but when you divorce you expose yourself to some sort of public scrutiny by the law that is truly unprecedented. “

The same pattern has been repeated in LGBTQ rights cases, Murray said. When the Supreme Court decriminalized sodomy by Lawrence v. Texas in 2003 he paved the way for Obergefell vs. Hodges, in which a majority of 5 to 4 judges ruled that the right to marry is guaranteed by the Constitution. Subsequently, cases like Masterpiece Cakeshop Ltd. vs. Colorado Civil Rights Commission postpone the decision and promote “a sort of censorship” of same-sex marriage, she said.

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

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

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

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

While the themes of the first two seasons were temporal – the first focused on “The Future of Law” and the second on “When the Law Changed the World” – this season examines a variety of legal issues through time, wondering what fairness means and examining how it interacts with the law.

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

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


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