Changing the marriage equation.

• Author: Widiss, Deborah A.

Table of Contents Introduction I. Interrelationship of Sex, Gender, and the Law of Marriage A. The Marriage Equation B. The Traditional Equation: Aligned and Mutually Reinforcing II. Different-Sex Couples A. The Demise of (Most) Sex-Based Classifications B. The Gender of Marriage Law C. A Stalled Revolution D. Conflicting Incentives in the Modern Marriage Equation III. Same-Sex Couples A. Challenging the "Last" Sex-Based Classification 1. Gender Norms in the Debate Over Same-Sex Marriage 2. Sex Discrimination Claims in Court B. Disaggregating Gender C. Disaggregating Marriage Conclusion: Equality Reconsidered Introduction

"It never ceases to amaze me how many people will say to us, 'So, who's the woman, and who's the man, in your marriage?'"

--Jason Shumaker, husband to Paul McLoughlin II (1)

Traditionally, substantive marriage law aligned sex-based classifications with gender norms. They were collectively coherent and mutually reinforcing, albeit in a way that subordinated women to men. A husband was responsible for financially supporting his wife and a wife owed domestic services to her husband. The groundbreaking sex discrimination cases of the 1970s required legislatures to strip away virtually all of the sex-based classifications within marriage law other than the basic requirement that marriage must be between a man and a woman. (2) These decisions have a separate legacy that is often overlooked: although they prohibited most legal distinctions between the sexes, they left in place an architecture of marriage, tax, and benefits law that encourages specialization into breadwinner and caregiver roles. (3) Gender norms have also changed far less than feminist reformers expected. Despite more than thirty years of formal equality, the vast majority of different-sex marriages still follow to some extent traditional gender roles. (4) Contemporary litigation over marriage rights for same-sex couples--that is, challenges to the last significant sex-based classification within marriage law--once again reconfigures marriage. The new reality of same-sex married couples does not just advance equality for gays and lesbians; it can also offer a fresh perspective on efforts to achieve equality within marriage for (different- and same-sex) couples.

Sex-based classifications within marriage law, gender norms, and non-sex-specific substantive laws of marriage collectively form what I call a "marriage equation" that shapes how individual couples allocate responsibility for breadwinning and for caretaking. This Article explores the connections among these factors and the tensions that can arise when they pull in different directions. (5) All three factors of the marriage equation both reflect and engender societal preferences regarding the "optimal" division of income-producing and domestic responsibilities. Thus, the elements of the marriage equation can be used to encourage a particular allocation of these functions, anywhere along a spectrum bounded at one end by equal sharing by both spouses of caretaking and breadwinning responsibilities and at the other by total specialization into separate roles. Additionally, and importantly, the interrelationship of these factors is essential in determining whether a normative preference for specialization, as applied to different-sex couples, is specific or agnostic as to the sex of the spouse who plays each role.

This Article traces the evolution of the marriage equation over the past fifty years to show how its factors interrelate in the choices individual couples make and in the development of public policy. It demonstrates how assumed or presumed connections between sex-based classifications and gender norms shape legislative and judicial responses to debates over marriage policy. The analysis in this Article helps show why reform of sex-based classifications alone can have little (or arguably even harmful) effect when not accompanied by corresponding changes in substantive marriage responsibilities and gender norms. (6) In other words, the marriage equation framework serves as a diagnostic tool that helps analyze successes and limits of past reforms and that identifies crucial questions that should shape research and policy design in the future.

The framework also helps explain why and how conversations regarding proposed recognition of same-sex relationships often focus on the supposed effect that such recognition would have on gender norms for different-sex couples. During the 1970s, Phyllis Schlafly and other opponents of the Equal Rights Amendment successfully used the specter of gay marriage as one of the potent arguments against the amendment. (7) Likewise, in today's debate, significant opposition to permitting same-sex couples to marry rests not simply on a definitional understanding of marriage as a union of man and woman but on a "thicker" gendered conception of marriage as ideally between a provider husband and a homemaker wife. Some critics explicitly call for a return to state-sanctioned gender roles within marriage; others, who do not go that far, worry that state recognition of same-sex marriages (8) undermines society's gendered expectations of spouses, particularly men's responsibility to their wives and children, or hurts children by denying them gendered role models within the home. (9) Courts have proven surprisingly receptive to such arguments, at least when evaluating legislation under the deferential "rational basis" standard. (10) I have argued previously--as have others--that the pervasiveness of sex stereotypes in the articulated rationales for denying same-sex couples access to marriage should be grounds for holding such laws to be unconstitutional sex discrimination. (11)

This Article turns the question around, asking not whether sex equality doctrine developed in the context of different-sex marriages can help achieve marriage equality for same-sex couples, but rather how marriage equality for same-sex couples can inform larger questions of sex equality. Although contemporary proponents of expanded marriage rights shy away from making such claims, (12) some earlier advocates celebrated the possibility that same-sex marriage could destabilize gendered understandings of marriage. (13) other commentators and advocates worried about the potential "co-optive" effect of traditional marriage roles on same-sex relationships. (14) The current moment transforms these arguments from theoretical debates into real questions being worked out by families across the country. (15) Same-sex couples are permitted to marry or form legally recognized civil unions or domestic partnerships in a rapidly growing number of states and localities. (16) The questions are therefore newly salient. (17)

A burgeoning body of social science suggests that same-sex couples divide responsibilities for income-producing work and domestic care more equally and more equitably than different-sex couples. (18) Some social scientists and popular writers have accordingly claimed that the growing acceptance of same-sex marriage can serve as a model for different-sex couples struggling to share responsibilities for work and for home care. (19) But such claims consistently overlook a key factor: the studies that exist today use data sets that predate legal marriage for same-sex couples. This is significant. Numerous aspects of marriage law, and related benefits laws, continue to encourage specialization into breadwinner and caretaker roles; this is what I call the "gender" of marriage. (20) Within an existing marriage, a wide range of policies--including tax, social security, and welfare benefits--reward married couples that have a significant disparity in their individual incomes, and access to a spouse's employer-sponsored healthcare often enables one spouse to exit the paid work force. If a marriage dissolves, divorce law, while far from a comprehensive safety net, provides protection to a dependent spouse by awarding that spouse a share of property and income accumulated during the marriage and, in some instances, maintenance or alimony payments post-divorce. These substantive legal rights work in tandem with societal understandings of what "marriage" means and the personal commitment that spouses make to each other. In other words, to hearken back to the quotation that opened this Article, the substantive law of marriage and related benefits, while formally sex-neutral, may nonetheless encourage spouses to take on distinct roles of "woman" and "man" even within a same-sex relationship.

But the marriage equation for same-sex couples is different than that for different-sex couples. For different-sex couples, gender norms work together with substantive marriage law to encourage specialization. For same-sex couples, by contrast, a decision to specialize into breadwinning or caregiving roles means that one member of the couple, at least, is going "against" gender norms. Same-sex marriage can thus serve as a natural experiment to help tease out the relative significance of the law of marriage, as opposed to gender, in how couples allocate responsibilities.

It is not (yet) possible to fully compare same-sex married couples to different-sex married couples. The federal Defense of Marriage Act (DOMA) denies same-sex couples all of the federal benefits of marriage. (21) Additionally, same-sex couples in several states may form civil unions but not actual marriages. Pending court challenges and legislative reform efforts suggest that the current variability may be time limited. (22) As I have written elsewhere, as a matter of constitutional law and fundamental fairness, I believe that same-sex couples in any state should have the freedom to marry. (23) That said, the current patchwork offers the opportunity to design qualitative and quantitative studies that assess the relative significance of state versus federal benefits of marriage and of the various legal frameworks employed by...