• Baker — Marriage Outside the Constitution

    by  • November 30, 2012 • Faculty Commentary, Faculty Workshops/ Conferences, Scholarship • 0 Comments

    This is the second of this week’s posts highlighting Professor Katharine Baker’s participation in a recent online symposium that discussed Georgetown scholar Robin West’s book Normative Jurisprudence: An Introduction. In the book, West argues that current “normative legal scholarship – scholarship that is aimed at criticism and reform – is now lacking a foundation in jurisprudential thought,” and she suggests a return to “the traditional understanding of the purpose of legal scholarship.”
    In the entry below, cross-posted from the original post on the Concurring Opinions blog, Professor Baker writes about “how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause.” Click here to access the full archive for the symposium.

    By Katharine Baker

    This entry is about how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause. It is far easier to find academics, including Robin several times in this book, writing about the dangers of relationships than the benefits of them. For decades now, legal academics have criticized the way the law insulates relationships, shields them from scrutiny, and allows them to be violent and patriarchal.

    It’s not that this critique is wrong, it’s just that it is highly likely that most of the people reading it, if not making it (at least all the straight ones) are enjoying most of the benefits of the institution being critiqued. Most educated middle class people are living in an insulated relationship, probably a marriage, which they mostly keep private, which they work very hard to maintain because they believe it has value and which provides for them deep sources of love and support and joy.

    For sure, not everyone experiences marriage or relationship this way, but as everyone from Charles Murray to Stephanie Coontz has explained, marriage is very popular and works very well for educated elites. We want to get married, we get married, we stay married, we do our damndest to raise our 2.3 children in a household with two married parents . . . but we somehow assume it is uncool to have a discussion about why this is our preferred way of living. We protect our relationships by not airing our dirty laundry; we cringe when we see a story about a divorce in which the parties make their dispute public; we don’t want that publicity to ever attach to us. But we continue to critique privacy, talking only about its harms, while its benefits shape our daily behavior.

    I am not suggesting that we reject the progressive critique of relationship or that we ignore the critique of privacy. But after a while those critiques lose their power when insulated, private relationships still thrive among the people making the critique. Given the support and love that can be found even in relationships that can be stifling and patriarchal, don’t we need to have a better understanding of what the advantages are and where they come from, so that we can try to emphasize the good while diminishing the bad in relationship? Given how hard it is to discuss one’s personal relationships in public, why did we ever think a victim of domestic violence would be willing to just walk into court and tell the judge about it? Might we not need to structure our legal interventions so as to protect privacy and not blow it apart?—because if we do not, she is never coming forward anyway.

    One likely cost of elites not defending the institution of marriage is the strikingly regressive effects of marriage on low-income couples. Yesterday, Jill Hasday wrote about the way rights discourse can obscure and exacerbate class disparities in the legal treatment of parenthood. I’ll suggest today that the progressive resistance to defending marriage also exacerbates class disparities. Most dual-income families suffer some tax penalty for marriage, but for low-income families, particularly those who receive the Earned Income Tax Credit, and especially those with children, marriage can result in extraordinarily high marginal tax rates.

    Adding the income of a spouse to a household if the combined household income is between $10 and $40,000 annually results in an effective marginal tax rate of 35% if one considers the tax system only, but a rate as high a 88% if one considers the combined effect on food stamps, health programs, TANF, housing and child care subsidies. (Carusso and Stuererle, The Hefty Penalty on Marriage, 15 Future of Children 157 (2005)). It is economic folly for a single parent or soon-to-be parent to marry someone who makes a comparably low income. Whatever long-term emotional and economic benefits might come from allowing an interdependency to grow are likely not worth the short term economic costs.

    Progressives have not focused on this aspect of federal marriage policy. If we did so, we might well be tempted to argue that our welfare system should graduate the system of entitlement more, so that there is not such a cliff of disallowance when individuals start sharing income. Reduced to its most basic, that argument is “we should subsidize marriage.” It is hard to imagine a left-of-center academic making that argument.

    What one tends to see in legal scholarship instead is criticism of marriage and of those who promote it. Many liberal critics, including Robin in a previous book, assailed the marriage promotion policy in the Personal Responsibility Act of 1996 (“PRWORA” or “Welfare Reform”). That policy put money into teaching low income men and women about all the benefits of marriage. How dare the government do that?

    The policy never struck me as all that strange or problematic though. Stupid, yes. Worth getting all upset about, probably not. First, I didn’t think it was going to make one wit of difference; studies reveal that most low income women well recognize the benefits of marriage, they just can’t find suitable marriage partners and/or they recognize the severe consequences of formally pooling their income. The problem with the marriage promotion policy in my mind was that it was just a silly waste of money (money I would much rather be going to allow those working class married households suffer less of a marriage penalty).

    Second, promoting marriage in the way that marriage promotion policies do—encouraging people to get married—is no more pernicious than what the Tax Code already does for higher-income households, which is encourage couples to live gendered lifestyles. By treating the household, not the individual, as the operative taxable unit, tax policy imposes a tax penalty on almost all two-earner families; but that policy turns into a comparative benefit if there are sufficient funds for one spouse to stop participating in the paid economy. By taxing a lower earner at the highest rate and not taxing any labor performed in the home, we give tremendous incentives for a second earner to perform domestic labor herself instead of using the market economy.

    Households that pay someone else to provide child care and other domestic labor must somehow pay into a variety of employment-based social insurance programs, including FICA, Workers Comp and often health insurance for the paid providers of those services. Marriage, not employment, provides those forms of social welfare insurance for married at-home workers. And those at-home workers’ labor is never taxed for income tax purposes. While the policy is formally gender neutral, we blatantly subsidize the gendered division of labor.

    It is any surprise, then, that wives married to college-educated husbands contribute, on average, a smaller percentage of household income than wives married to any other demographic of men. (Taylor et al., Pew Research Center, Women and Men and The New Economics of Marriage, 2010) Or, that “even wives with graduate and professional degrees do not usually work full time if their husband’s income exceed[s] $75,000.” (Ellman, Marital Roles and Declining Marriage Rates, 41 Fam. L. Q. 455, 474 (2007)).

    Why there is so little feminist critique of tax policy baffles me. I suspect part of it comes from feminists simply being weaned as feminists on critiques of the institution of marriage. Feminists may also realize that any attempt to change this policy will just lose politically. There is far too much support in the real world for the ideal of privatized interdependence in marriage. But if we can’t fight a tax policy that edifies marriage at a cost of gender promotion, couldn’t we at least use the edification of marriage to alleviate the hardships on low-income couples who do marry? Just as failure to think more seriously about the goods of marriage hurts same-sex couples who want to accept that status, so failure to defend marriage hurts low-income couples who want more realistic access to that status.


    The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

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