Marriage Policy Encourages One Spouse to Stay Home and the Other to Work

How will this affect same-sex couples as they gain more and more legal rights?
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Reuters

Liza Mundy's recent article in The Atlantic suggests that same-sex couples can serve as a model for different-sex couples struggling to find a fair division of breadwinning and caretaking work. As I discuss more fully in a recent law review article, that might be true—but it is too soon to know. There are, as Mundy reports, many studies showing that same-sex couples typically divide such responsibilities more equally than different-sex couples. But these studies predate legal marriage for same-sex couples. Although they focus on same-sex couples in long-term committed relationships, most of the data was collected before their relationships were legally recognized at all. Furthermore, under the federal Defense of Marriage Act (DOMA), no same-sex couples currently count as "married" for federal purposes.

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The legal landscape is changing quickly. Twelve states and the District of Columbia permit same-sex marriage, and the Supreme Court could rule that DOMA is unconstitutional. These changes provide important new rights for same-sex couples, but they also might make same-sex relationships themselves less egalitarian. This counterintuitive conclusion stems from the fact that many aspects of both federal and state marriage law encourage married couples to specialize into separate caregiving and breadwinning roles. To put it colloquially, marriage may itself encourage one of the men in a same-sex marriage to become the "wife"—and, conversely, one of the women in a same-sex marriage to become the "husband."

The preference for specialization is a vestige of old laws that explicitly required husbands to provide economically for their wives and wives to provide domestic services for their husbands. Sex-based rules continued even after divorce, with alimony generally being available only to wives. In the 1970s, most such sex-based requirements within marriage law and related benefits laws were held to be unconstitutional. As a result, specific references to "husbands" and "wives" were changed to "spouses." But the underlying architecture of these provisions was not changed, which means that marriage still encourages an unequal division of household responsibilities.

There are numerous examples of this. For instance, under federal tax law, married couples with a wage-earning spouse and a stay-at-home spouse pay less in total taxes than they would if they were single. In other words, they get a marriage "bonus." But married couples who earn relatively equal amounts often pay a marriage "penalty" relative to what they would pay if they were single. Social security likewise subsidizes caretaking by permitting dependent spouses to claim benefits based on a spouse's contribution. Even federal welfare programs encourage a breadwinner-caretaker divide for married couples, by imposing work requirements on families collectively, so that it makes sense for one parent to work and the other to provide childcare. (In fact, if both parents work, they likely would exceed income eligibility.) And most states' divorce laws provide at least a partial safety net for dependent spouses by instructing courts to "equitably divide" marital property, regardless of who earned it.

There are good reasons for many of these policies, but it is essential to acknowledge that they encourage specialization. And in different-sex marriages, as Mundy reported, a significant gender imbalance persists. Women with children are far more likely than their husbands to drop out of the labor force completely. For example, a recent government study found that in almost one-third of married couples with children, the father is employed and the mother is not, whereas only 6.5 percent of couples have an employed mother and unemployed father. Even if both spouses work for pay, wives more frequently curtail hours or choose jobs that facilitate domestic work and child care responsibilities. Women who work full-time still spend twice as many hours as their husbands doing housework, and they spend more time providing direct child care. Men, by contrast, spend more hours working for pay: 37 hours per week compared to 21.

What we don't know is how much this gender imbalance is the result of legal frameworks and how much it stems from societal norms regarding feminine and masculine roles. Same-sex marriage can serve as a natural experiment to help tease these factors apart. As Mundy reported, although some studies of gay and lesbian couples find relatively high levels of specialization, a significant majority find that same-sex couples share income-producing and domestic work much more equally than different-sex couples. The question is whether this trend will remain true even as same-sex couples marry.

The rapidly growing number of states that permit same-sex couples to marry already offer a treasure trove of data. If DOMA were to fall, same-sex and different-sex couples would become more truly comparable. If same-sex married couples begin to look increasingly like different-sex married couples—in other words, if they begin to specialize more into separate breadwinning and caregiving roles—that would suggest that substantive marriage law, along with conceptions of what marriage "means," plays a relatively greater role than gender norms in the choices couples make when they juggle work and family obligations. Such studies could offer a fresh perspective on longstanding debates regarding how best to achieve equality within marriage for different- and same-sex couples. They could also provide insight into what, sadly, may be the next stages of this marriage revolution: fair compensation for a spouse in the event of divorce.

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Deborah Widiss is an associate professor at the Indiana University Maurer School of Law.

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