photo of Boucai participating in a faculty discussion panel.

Professor Michael Boucai participating in a panel discussion.

Professor Michael Boucai

A historian’s take on marriage, sexuality and more

It was while he was in law school at Georgetown that Michael Boucai first imagined becoming a law professor. He loved writing papers, his professors took notice, and “I realized,” he says now, “that my particular way of looking at the law—critically minded, kind of quirky—might find a happy home in the legal academy. I went to law school hoping to do impact litigation, but I soon came to see scholarship as my best shot at making a unique contribution to the field.”

Despite that early realization, Boucai says his path to the podium was “circuitous.”

It included a federal appellate clerkship, litigation practice in a large firm in New York City, and a Master’s degree in history from the University of Cambridge. But in teaching at UCLA School of Law and, since 2012, at UB School of Law, he has found an outlet for his inquiring mind. Newly elevated to full professor, Boucai continues to study, write, and open students’ eyes to the possibilities of legal thinking.

“I’m drawn to the way that UB School of Law tends to attract a lot of students who may be the first in their family to attend college or professional school,” he says. “And I have such affection and respect for my colleagues on the faculty. They’re not only a brilliant bunch of people, but many of them are also very good friends. Working for many years in the same institution is a much more appealing prospect when you have respect and affection for your colleagues.”

It’s a good fit as well because of the law school’s emphasis on interdisciplinary approaches to studying law. In particular, Boucai brings a deep historical sensibility to his legal research, which has focused in recent years on interrelated questions relating to gender, sexuality, marriage, and reproduction.

One example is his most recent article, “Before Loving: The Lost Origins of the Right to Marry,” published in the UTAH LAW REVIEW. It explores the roots of the idea of a fundamental right to marry in American and more broadly Western jurisprudence before the U.S. Supreme Court’s 1967 decision in Loving v. Virginia striking down laws banning interracial marriage.

“Knowing the history of the right to marry shows us nearly conclusively that the right as it exists today is incoherent and unsalvageable,” Boucai says. “A historical perspective shows the right to marry did once mean something perfectly coherent, but that definition is no longer viable. It’s been superseded, and we’re left with kind of an empty vessel.”

In Obergefell v. Hodges, the 2015 ruling that legalized same-sex marriage nationwide, the Court ostensibly based its holding on the fundamental right to marry. “But—as in Loving itself—the result is best understood in terms of equality.” Boucai continues: “It definitely makes sense that the equality imperative is especially strong when the state discriminates with respect to such an important civil institution as marriage. But that’s not a fundamental right to marry in the strong sense that the state is obliged to furnish such an institution.”

“Before Loving,” says SUNY Distinguished Professor Guyora Binder, vice dean for research and faculty development, “develops the paradox that by the time the right to marry was recognized, it was already falling apart. When you deconstruct the different parts of marriage and recognize the rights of everyone to have these benefits – rights of procreation, cohabitation, sexuality, financial partnership – there’s no particular reason why these different rights all need to be bundled together, and to require them to be bundled together is to restrict these freedoms."

“It’s this deep knowledge of legal history combined with probing critical theory that so characterizes his work,” Binder says. “Michael is really on the cutting edge of research and reflection about the changing meaning of family and family relationships, as well as exploring how society regulates sexuality and reproduction. His work is uniquely interdisciplinary in that he combines archival research, encyclopedic doctrinal history, ethnography, interviewing, oral history, and a thorough and deep understanding of the different theoretical positions on sexuality.”

As the School of Law turns its own analysis inward in response to the Black Lives Matter movement, Boucai also has a new role as chair of the school’s new Committee on Diversity, Equity and Inclusion, which comprises both faculty and staff members.

“There’s a real opportunity here for the law school to think collectively about the areas where we need improvement when it comes to diversity, equity and inclusion. What are the most urgent and important needs, and how do we address them in a way that both respects their magnitude and reflects our capacity in terms of personnel and resources?” he asks. Hence Boucai’s insistence on beginning the Committee’s work with intensive information gathering.

“The problems of discrimination and unequal opportunity, and especially that of racial injustice, are too deeply and subtly embedded to simply rely on intuition and casual observation.”