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.
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.