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Hastings Law Journal

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The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships — gay or straight. Nonmarriage might do just as much, if not more, to advance black civil rights. Part I explores marriage’s role in racial subordination by looking at the experiences of African Americans, as well as Native Americans, Puerto Ricans, and Asian Americans. Drawing on institutional structure analyses, it then considers how legal marriage has “married” Blacks to second-class citizenship. Part II explores the current place of marriage in African America. It argues that, while the regulation of black loving relationships today differs dramatically from what we saw in earlier times, family law often has a punitive effect on such American families. Part III contemplates the benefits of adopting a focus on nonmarriage. It contends that meeting black families where they are holds the most potential for progress in addressing the structural barriers to success faced by those families. The Article ends with a “call to action” for legal scholars and others concerned about black families and citizenship. It maps a broad agenda for exploring in earnest the potential that supporting and valuing the existing networks, arrangements, and norms regarding gender and caretaking in African America has for promoting black citizenship and equality in the twenty-first century.