A prominent welfare rights activist once said, "[Welfare] is like a supersexist marriage. You trade in a man for the man."1 Now, after the passage of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996,2 also known as the "Welfare Reform Act,"3 the tide has turned. By offering economic incentives that compel poor single mothers to form two-parent families, PRWORA instructs welfare recipients to trade in the man for a man in order to survive. Through these provisions, PRWORA violates the constitutional rights of poor single mothers.4 For example, while PRWORA forces unmarried mothers to work outside the home in order to receive welfare, married mothers do not have to work outside the home to obtain those same benefits.5 This provision not only encourages dependence on a male income, it withholds necessary assistance from unmarried mothers seeking to achieve financial independence.6
This kind of legislation is heavily influenced by patriarchal fatherhood initiative groups motivated by the myth that marriage is the solution to poverty among single-mother-headed families-a myth that ultimatelyPage 212 perpetuates the social, economic, and political inferiority of women.7 The marriage promotion provisions in PRWORA substantially interfere with single mothers' right not to marry and freedom not to intimately associate, as well as discriminate against unmarried mothers of children born out of wedlock.8 Thus, PRWORA cannot pass constitutional muster as it is not narrowly tailored or substantially related to remedying poverty among single-mother-headed families.9 Instead of coercing poor single mothers into marital relationships by providing economic incentives, American welfare law should value the caregiving work for which these mothers bear sole responsibility and provide assistance to all mothers equally, regardless of their marital status. This proposal is supported by a substantial government interest in remedying past economic discrimination against women, and would rightfully compensate mothers for their unpaid and undervalued family caregiving work in the home.10
There is perhaps no better time than now to review how welfare reform violates the constitutional rights of poor unmarried mothers because the number of Americans living at or below the poverty threshold has increased steadily since the mid-1970s.11 Furthermore, the poorest of the poor are single-mother-headed families.12 Although impoverished families may also be headed by unmarried fathers,13 this Comment focuses on thePage 213 legal issues surrounding poor single mothers. After all, they constitute the majority of the poor and shoulder the highest risk of poverty due to the unique social, economic, and political disadvantages they face.14
To shed light on the disadvantages that single mothers face in the American welfare system, Part I of this Comment examines the relevant Supreme Court cases which establish the fundamental right not to marry, the illegality of discrimination based on illegitimacy, and the freedom not to intimately associate. The purpose of this section is to construct a legal framework that demonstrates how PRWORA violates poor unmarried mothers' constitutional rights. This examination is followed by a discussion regarding the current difficulties unmarried mothers endure when raising a family in poverty. It includes a discussion of how interest groups such as the National Fatherhood Initiative overlook the true needs of poor single mothers by lobbying for welfare legislation that selfishly advances its socially conservative moral agenda. Part I concludes with an examination of recent developments in welfare law. It scrutinizes particular provisions of PRWORA that provide economic incentives. These incentives coerce poor single mothers into forming marital relationships and discriminate against unmarried mothers of children born out of wedlock.
Part II of this Comment illustrates why marriage is an inadequate and unconstitutional solution to poverty among single-mother-headed families. This section is supplemented with a proposal to provide welfare to all mothers equally, regardless of their marital status. Part III of this Comment supports the proposal set forth in Part II with a review of feminist discourse on women's caregiving work in the context of welfare. This section concludes with an evaluation of how compensating women for their family caregiving work will further the substantial government interest in remedying past economic discrimination against women. The purpose of Part III is to demonstrate that valuing women's caregiving work in the home is a significant beginning step in generating legally appropriate and fair remedies to poverty among single-mother-headed families.
The fundamental right to choose marriage as well as the right not to choose marriage has been touted by the Supreme Court as one of the "basic civil rights of man."15 This right is protected by the Fourteenth Amendment Equal Protection Clause, which provides that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws."16 While this provision prohibits the federal government and the states from unduly burdening fundamental rights, interference with marital choice has been defended as a way to further society's interest in promoting and preserving family relationships and the institution of marriage itself17
The fundamental right not to marry was trumpeted in the 1967 decision Loving v. Virginia.18 There, a Virginia law prohibited whites from marrying people of color, and vice versa.19 The law provided that if a couple was found to be in violation, they would be guilty of a felony and sentenced to time in prison.20 In 1958, Virginians Mildred Jeter, a woman of color, and Richard Loving, a white man, married in the District of Columbia.21 That year, after returning to Virginia, the Lovings were found in contravention of the state's prohibition on interracial marriage.22 They were forced to leave Virginia and not return for twenty-five years.23 In 1963, the Lovings sought to vacate the judgment against them on the grounds that the Virginia law violated the Fourteenth Amendment.24
The Supreme Court reversed the Lovings' convictions and declared the Virginia law unconstitutional.25 It explained that since the ban on interracial marriage rested solely on classifications based on race, the Equal Protection Clause of the Fourteenth Amendment required it toPage 215 subject the law to "rigid scrutiny."26 Under this level of scrutiny, the Court found that there was no valid legislative purpose for an analysis that bases the criminality of conduct on the color of one's skin.27
More importantly for the purpose of this Comment, the Supreme Court also noted that the freedom to choose marriage has historically been identified as one of the "vital personal rights essential to the orderly pursuit of happiness by free men."28 The Court explained that the right to choose marriage is one of the "basic civil rights of man,"29 and pointed out that under the Fourteenth Amendment, the "freedom of choice to marry [may] not be restricted by invidious racial discriminations."30 It asserted, moreover, that "the freedom to marry, or not marry," under the United States Constitution, "resides with the individual and cannot be infringed by the State."31
The Supreme Court's opinion in Loving demonstrates that the right to choose not to marry is a logical extension of the fundamental right to marry. The Court characterized the right under the Constitution as a matter of "freedom of choice,"32 and thereby included the right not to marry in the right to choose marriage. While the Court discussed the right not to marry within the parameters of racial discrimination,33 its decision was not only an equal protection ruling about racial discrimination, but also a statement about the "basic" rights of man-the right to choose marriage.
Ten years later, in Carey v. Population Services International,34 the Supreme Court framed the fundamental right to choose marriage as an aspect of the Fourteenth Amendment Due Process Clause's right to privacy.35 In Carey, a New York law made it a crime for any person to sell or distribute contraceptives to a person under sixteen years of age, for any person "other than a licensed pharmacist to distribute contraceptives" to people sixteen years of age and older, and "for anyone, including licensed pharmacists, to advertise or display contraceptives."36 Population PlanningPage 216 Associates, Inc. (PPA) was a corporation that made mail-order sales of contraceptives.37 It advertised its products...