BRING MUSIC IN (Audioblocks: “Mountainscape”)
LESLIE KENDRICK: When you walk down the aisle and say “I do,” you’re not just getting a spouse, you’re getting membership in a club with lots of perks.
RISA GOLUBOFF: Adoption, immigration, health care, taxes, social security … getting married can bring real benefits in all those areas.
LESLIE KENDRICK: But unmarried couples? SINGLE people? They’re not so lucky. And in a society where marriage is becoming less common, limiting these benefits to the married may be increasing inequity.
RISA GOLUBOFF: Can the law help mend this relationship and rebalance what marriage offers? That’s what we’re discussing on this episode of Common Law.
FADE MUSIC OUT/BRING THEME MUSIC IN
RISA GOLUBOFF: Welcome back to Common Law, a podcast from the University of Virginia School of Law. I'm Risa Goluboff, the dean.
LESLIE KENDRICK: And I'm Leslie Kendrick, the vice dean. In this season of Common Law, we're diving into the issue of law and equity.
RISA GOLUBOFF: In our last episode, discrimination law expert Deborah Hellman told us about how seemingly neutral algorithms may actually be compounding injustice.
DEBORAH HELLMAN: So it's important to recognize that the algorithm can be as biased as the human. But I also think it does have some potential to disrupt some of those biases too.
LESLIE KENDRICK: If you missed that episode, we hope you’ll check it out. In this episode, we’re turning to family law — specifically marriage, and the many benefits that accompany it.
THEME MUSIC OUT
RISA GOLUBOFF: Naomi Cahn is a colleague and professor here at the law school where she's also director of our new Family Law Center. She's not just an expert in the field, she is co-author of one of the primary textbooks on the subject: “Contemporary Family Law,” which has been in publication since 2006. And she's also the author of countless other works. Welcome to the show, Naomi.
NAOMI CAHN: Thank you. It's wonderful to be here.
LESLIE KENDRICK: We're so glad to have you, Naomi. Thanks for joining us. I think a lot of people, when they think about family law, they think about divorce and child custody, but there's much more to family law than that. Is that right?
NAOMI CAHN: (laughing) Yes, there's a joke among law professors that we each claim we can teach all of the other courses in the curriculum through our course. And that's certainly true of family law. It affects everything from how do we define who is a parent, as well as who can get married, as well as who can get an abortion, to juveniles in court, to the rights of non-marital intimate partners, to work-life balance.
RISA GOLUBOFF: Family law is constitutional law, family law is property law, family law is criminal law, right? It's regulatory, it's legislative, as well as common law.
NAOMI CAHN: Exactly.
LESLIE KENDRICK: You have a new paper with June Carbone titled “Uncoupling,” in which you explore the many federal benefits that have traditionally been tied to marriage, and were often delivered through the workplace. We’ve all heard about the “marriage penalty,” but how many marriage benefits are we talking about?
NAOMI CAHN: The Supreme Court in its 2013 opinion in the Windsor case, noted that there are more than a thousand benefits in federal statutes that are tied to marriage.
UNITED STATES V. WINDSOR - ORAL ARGUMENT, MARCH 27, 2013
CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in case 12307, United States vs Windsor, and we’ll begin with the jurisdictional discussion. Ms. Jackson?
RISA GOLUBOFF: So, Edith Windsor was a widow in a same-sex marriage whose wife had died, and she sued because she had been forced to pay a whopping tax bill on her wife’s estate. Though same-sex marriage was legal in some states at the time — including where Edith Windsor lived — the Defense of Marriage Act defined marriage as between one man and one woman, which meant that same-sex couples weren’t eligible for federal marriage benefits. Without the estate tax deduction that they would have gotten if they were not a same-sex couple, Edith Windsor would have been on the hook for a $363,000 tax bill.
NAOMI CAHN: So, I mean, there's an example of where marriage provides an incredible benefit and where, at that point, a same-sex married couple could not take advantage of that.
LESLIE KENDRICK: If I remember, Justice Ginsburg said the case was much bigger than just a single law about estate taxes and that denying marriage benefits to same-sex couples would create, in essence, two unequal kinds of marriage.
UNITED STATES V. WINDSOR - ORAL ARGUMENT, MARCH 27, 2013
JUSTICE GINSBURG: I mean, it's pervasive. It's not as though, well, there's this little federal sphere and it's only a tax question. It's — it's — as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so you are really diminishing what the state has said is marriage. You're saying, no, state — there are two kinds of marriages: the full marriage, and then this sort of skim milk marriage. [Laughter]
RISA GOLUBOFF: A skim milk marriage! That is just so apt. So in addition to being a case about equality for same-sex couples, Windsor then highlights this difference that you’re really interested in, in benefits between married couples and unmarried people — 1,100 statutes that deal with financial perks like tax credits and social security survivor benefits, plus other privileges associated with immigration status, child custody, AND benefits traditionally delivered through work like health insurance and family leave.
NAOMI CAHN: It's not that we're arguing that these same benefits should apply to non-marital couples. There are scholars who are making strong arguments for that. But it's an argument that we need to make these benefits available to individuals rather than to individuals as part of a marital couple. And that becomes increasingly important not just because the workplace is changing, but also because marriage itself is changing.
BRING MUSIC IN (Soundstripe: Wild Wonder - “Headwind Reprise Instrumental”)
LESLIE KENDRICK: I don't think any of us here is arguing that delivery of benefits through marriage was ever optimal, but various changes took place to make it even more suboptimal than it ever had been. So can you walk us through some of those changes?
NAOMI CAHN: The first is a change in marriage rates. Among all women today, except for the college-educated, under half are currently married versus closer to 75% in the 1950s. So a dramatic decrease.
RISA GOLUBOFF: 75% to 50% is a huge decrease. But as you hinted there, marriage rates haven’t fallen so precipitously for college-educated women, which is why you say in your paper that marriage has increasingly become a “marker of class” — or a marker of success — for upper-class families, rather than a pathway to security for all families, and especially for working-class families, which I think is really telling.
NAOMI CAHN: The other thing that's going on in working class families is there’s less likely to be two breadwinners together trying to raise children. It's also important to remember that about 40% of all children are born outside of marriage — about half of them are born to cohabiting couples.
LESLIE KENDRICK: So that fact, together with the decline in marriage rates, has convinced a lot of people that we should decouple marriage benefits from marriage. Is that right?
NAOMI CAHN: Right.
LESLIE KENDRICK: You’re saying it’s just not equitable that 40% of American children would grow up with a parent or parents who don’t have access to benefits that are available to the married couple that lives next door.
NAOMI CAHN: Exactly.
BRING MUSIC OUT HERE
RISA GOLUBOFF: Can we talk more about those married couples?
NAOMI CAHN: Sure.
RISA GOLUBOFF: Let’s take it back first and talk about this traditional American family and the way social safety net provisioning and benefits provisioning got to people, was through the family and through private employers. And the family was a pretty clearly structured, pretty clearly gender traditional family. So talk about that. Talk about what is this BEFORE time that now you see crumbling?
BRING MUSIC IN (YouTube: “Turn Back Time with Vintage 1920s and 1930s Orchestra Music”)
NAOMI CAHN: As the industrial era took hold in the United States, and as the union movement sought to secure the benefits of the middle-class family model for a larger part of the country, that strategy involved a fight for the family wage.
LESLIE KENDRICK: The family wage being a wage high enough to support an entire family on one income.
NAOMI CAHN: Yeah. And it involved two concepts. One was gendered family roles, and the other was gender-segmented labor markets. This was the famed ideology of domesticity.
FADE MUSIC OUT
AMERICAN NOSTALGIA - THE 1960’S THRIFTY HOUSEWIFE
NARRATOR: Wherever we live or earn our livelihood, we have bounties beyond those known to the people of any other day, and as responsible as anyone else for the care of these bounties is the woman in the American home.
NAOMI CAHN: The men were out in the cruel work world while the women were home in the domestic realm, raising children.
1950s AND 60s TV COMMERCIALS
NARRATOR: She’s got a man she’s promised to love, honor and …
WIFE: Keep house for the right way!
HUSBAND: Does that mean I never have to help with the dishes?
RISA GOLUBOFF: Now, of course this model never fit large numbers of American families, and especially not Black families and other families of color and it didn't even fit all white American families, so in addition to being deeply gendered, it was also deeply raced, and despite the fact that it didn’t fit all these families, it remained the dominant ideology.
NAOMI CAHN: But the Supreme Court even reinforced that gender differentiation in Lochner, when it struck down the law limiting the maximum number of hours that an employee could work while just three years later, in Muller versus Oregon, the court upheld a comparable law when it applied to women.
RISA GOLUBOFF: So men had this robust right, you couldn't constrain their right to contract and labor how they wanted, whereas women could be protected by this kind of wages and hours regulation.
NAOMI CAHN: Absolutely. Women's quote, physical structure, and the proper discharge of her maternal function justify legislation to protect her "from the greed as well as the passion of man," wrote the court in Muller. Enshrining different roles for men and women, and kind of trying to elevate this concept of a middle-class model that depended on the family wage.
BRING MUSIC IN (YouTube: “Turn Back Time with Vintage 1920s and 1930s Orchestra Music”)
NAOMI CAHN: One of the most famous examples of the family wage is Henry Ford, who in 1914, became the first to adopt such a policy with his $5 day wage, which was double the norm at the time. When Ford adopted this family wage idea, he said, the man does the work in the shop, but his wife does the work in the home. The shop must pay them both.
FADE MUSIC OUT
LESLIE KENDRICK: Well, Naomi, one thing that I'm taking from your work is that there used to be a settlement wherein marriage was the vehicle for delivering various economic benefits, and part of what you document is the gradual erosion and we might even say collapse over time of those benefits. So, you know, it's one thing to have a family wage when you actually have a family wage that can support a family with it. It's another to tie benefits to marriage when you have a system where you can’t support one person with an hourly wage.
NAOMI CAHN: Exactly. Yes, yes.
RISA GOLUBOFF: You talk a lot in the paper about how there's real stratification, there's class stratification in the effect of this new economy and this new moment that we find ourselves in, so you say that it can be a threat to working-class families. So can you say a little bit more explicitly about that?
NAOMI CAHN: Working-class couples have been squeezed in terms of the number of jobs available.
BRING MUSIC IN (Soundstripe: Lincoln Davis - “Spheres”)
NAOMI CAHN: It used to be that the family wage was available to someone without a college education. Today, there’s a college diploma premium in terms of working, in terms of earnings and also in terms of access to a great deal of the benefits that would support work-life balance. So the people most likely to have access, for example, to paid leave are the people who are paid the most. And so working-class couples don't have access to paid leave. That’s one way that uncoupling might help them — if there is, for example, paid leave for caregiving or for childbirth. There's also often less job security or less portability of jobs. And so as jobs for people with less than a college education become more limited, they are also less likely to be offering the kinds of benefits that unions used to be able to negotiate on behalf of their members.
FADE MUSIC OUT
LESLIE KENDRICK: Yeah, so take health insurance — which is something that unions might negotiate. The share of working-age people who get health insurance through their jobs has been dropping. One of the sources you refer to in your paper says that in 1998, 67% of working-age people had insurance through work. But 20 years later, that had fallen to 58%. And at the same time, the amount that they pay out of pocket has increased as well.
NAOMI CAHN: Many people have seen the cost of basic health care benefits go up in the workplace. Also, there's been a huge shift in the types of retirement plans that employers offer. And it used to be that many employers offered defined benefit plans, so that you knew just how much money you would be getting when you retired. Today, many of us have defined contribution plans, so we know how much we're putting in, but we have no idea and no guarantee of how much we'll be getting out when we actually retire. And the number of people who save for retirement has also been going down.
LESLIE KENDRICK: You also argue in the paper that a variety of these benefits are ALREADY being uncoupled from marriage. And as we move in the workplace toward more and more gig workers and more of a gig economy, we have workers who don't have access to all of the traditional benefits that one used to find in the workplace, and it becomes more important to find a source outside the workplace for those benefits.
NAOMI CAHN: And to the extent that many of those benefits have been tied to marriage, it's important to uncouple them.
BRING MUSIC IN (Soundstripe: Wild Colors - “Secret Corners”)
RISA GOLUBOFF: So what would that entail if you were to uncouple the benefits that were traditionally attending marriage through employment? What does that look like?
NAOMI CAHN: Well, that's the next article called "The New Social Compact.” (Laughing) There is, as one of you mentioned, a question of whether we ever should have relied on marriage as a basis for allocating benefits …
RISA GOLUBOFF: Right.
NAOMI CAHN: … but it's clear that that no longer happens. It's clear that employers want to get out of the business of offering benefits. And so there's kind of — what? — the elephant in the room, which is this takes the government to step in and to do in this country, what governments in Europe have done, which is to provide a much stronger social safety net.
RISA GOLUBOFF: And I think it's a really interesting point, frankly, right? That, to some extent, the impetus for what you're describing is not in the first instance, a desire for the government to DO. It's a recognition of these private institutions FAILING to do, and therefore leaving gaps into which the government needs to move.
FADE MUSIC OUT
NAOMI CAHN: Exactly. At one point we didn't need as much of a government role, and now we do (laughing).
RISA GOLUBOFF: Among historians of the political development of the United States, there’s the description of the state, that's hidden. And I think a lot of what you're talking about in the old regime is the state hiding itself in the provision of benefits that companies do, right? And not being that provider in the first instance of benefits, though that changes to some extent with social security and in the New Deal and in the 1960s again, but I think we're in another moment where the state is newly being called upon because of the trends that you are describing to play yet a more central role in the provision of benefits. And that's pretty controversial, right? I mean, that's what leads to calls of 'this is socialism’ and “this is problematic in a capitalist society that we like to think that we are.”
NAOMI CAHN: It is incredibly controversial. And then we remember just how controversial the New Deal was.
FRANKLIN ROOSEVELT - FIRESIDE CHAT #5, ON ADDRESSING THE CRITICS
PRESIDENT ROOSEVELT: A few timid people who fear progress will try to give you new and strange names for what we are doing. Sometimes they will call it facism, and sometimes communism, and sometimes regimentation, and sometimes socialism.
NAOMI CAHN: And then we think about the 1950s when the marginal income tax rate was close to 90%. And we think that there have been other times in our history where the government has stepped up to play a far more central role. I mean, the 1950s, far more government regulation of corporations than there is today. And so in calling for a more visible government, what we're doing is making visible what the government has already been doing.
BRING MUSIC IN (Soundstripe: Chelsea McGough - “Up Above”)
LESLIE KENDRICK: In our first episode this season, we spoke with Randall Kennedy from Harvard Law about different visions of a racial promised land — from Martin Luther King Jr.'s vision, even to George Wallace's vision. So for marriage, non-marriage, economic benefits, what would you articulate as the promised land that you would like to see?
NAOMI CAHN: The promised land? I think it's easier for me to say what it's not probably? It's not saying, “Oh, gee, what we're going to do is to extend all of the benefits of marriage to cohabiting couples.” I mean, I think my promised land is providing economic security for all Americans and providing for family stability as part of that. How we get to that promised land, I think it's a lot of walking. And it's a lot of government support. There’s a long distance between here and there.
NAOMI CAHN: How would each of you answer that question?
FADE MUSIC OUT
RISA GOLUBOFF: I mean, I, I was thinking about it as you were talking, There's a real tension, right? Because we're talking about the individual and we're talking about making sure that every individual is afforded with the ability to care for their basic needs and to have economic security. And why do that through the couple, right? Why not just ensure that every individual has that ability? On the other hand, we do have a really long-standing sense that marriage is good for lots of things and lots of reasons. And so there's a question of, you know, does that get jettisoned altogether? So if there is an independent good in marriage for individual stability, not only economic, but psychological, for intimacy, all these different kinds of things, can you really successfully decouple marriage from all those benefits and make sure that you're giving them to individuals, while also acknowledging the important role that intimacy and relationships and possibly state mandate, you know, state approved, or state-validated relationships play? I don't know the answer to that. I don't know. Leslie, what do you think?
LESLIE KENDRICK: You know, I thought it was interesting that you started with, ‘I can tell you what the promised land is not,’ right. And it's not this structure that we have now where we have marriage as a kind of vestige of an old economic structure that largely doesn't exist anymore.
NAOMI CAHN: I think that's right. I mean, I, I … I'm happily married. So I certainly think marriage should continue to be available, it should continue to be celebrated. It will probably continue to provide benefits. But again, if you look at the people who are most likely to get and to stay married, that's higher income, higher education. And that's been, as I said, a huge change in what marriage is.
LESLIE KENDRICK: I take part of your point to be whatever sense it made at the outset, at the point at which we no longer have a lot of economic sustainability for a lot of individuals around the country, then it certainly doesn't make sense to tie whatever economic benefits there are to marriage.
NAOMI CAHN: Long live the institution of marriage, it's just perhaps not long live the institution of marriage as the basis for a series of a thousand-plus federal and numerous state benefits. I should also emphasize that in this particular paper, we haven't yet set out where we see this proposal going, precisely what kinds of benefits. What we're really calling for is a rethinking of the relationship between individual, marriage, work and state.
RISA GOLUBOFF: We're calling this season “Law and Equity,” and partly that is inspired by a recent shift in language that we see around us from equality to equity. Is that a linguistic shift that matters to you when you’re thinking about it, either with regard to this particular paper or more generally in family law?
NAOMI CAHN: Well, there's that wonderful image of equity versus equality, right? Of the three kids of different sizes ...
BRING MUSIC IN (Soundstripe: Wild Wonder - “Thirty Three Years”)
LESLIE KENDRICK: Yes, this is a pair of images showing three kids lined up at a fence watching a baseball game. Or trying to watch a baseball game.
NAOMI CAHN: Right.
LESLIE KENDRICK: And the image on the left shows all 3 kids standing on the same size crate, but the shortest kid still is too short to see over the fence. That image is labeled “equality” because they all have equal crates, they all have equal resources. And then in the image on the right, the shortest kid stands on two crates, while the tallest kid has none, and now all three of them can see over the fence. And that’s labeled “equity.” So how does that relate to family law?
NAOMI CAHN: In family law, there's, there's all kinds of, of existing tensions already between equality and equity. I'm just thinking at divorce in a few jurisdictions, there is equal distribution of the assets, but even where there's equal distribution of the assets, there's still something called equitable distribution of the assets with the idea that, say, equal division of assets, isn't going to get the kids to the same level of being able to look over the fence. And so I think equity is an incredibly important concept throughout family law. I think that that's a way of moving away from the marital status-based benefits and instead looking at things far more individually focused. So I like that movement. I think it's a wonderful shift to be thinking of as we try to consider just what we mean by equity versus equality.
LESLIE KENDRICK: Naomi, this has been so great. Thank you so much for joining us.
NAOMI CAHN: Thanks to both of you. This has been really fantastic. Thank you, Risa and Leslie.
FADE MUSIC OUT
RISA GOLUBOFF: Thank you, Naomi. I agree. Thanks for being here.
THEME MUSIC IN
LESLIE KENDRICK: That was University of Virginia law professor and family law expert Naomi Cahn.
THEME MUSIC UP THEN UNDER AND OUT
RISA GOLUBOFF: So, Leslie, I was thinking, as we were talking with Naomi, most of the time people think of marriage and not marriage as being relational, right? They’re about your personal life, but they're such incredibly important legal categories and institutional categories that that's what Naomi is highlighting, right? That when you're married, it not only affects how you think about yourself and how other people treat you, but how the state treats you and what benefits and privileges you have. And there are just thousands of statutes, not only the federal ones, but also state and local ones about actually what your rights are as a person and your legal obligations and legal privileges and benefits are. And it's kind of — when you think about marriage in those terms, it's kind of astounding how all encompassing this is, not only as a relational matter, but as a political matter, as an economic matter, as a matter of, you know, your actual lived experience of social security and the safety net and your employment.
LESLIE KENDRICK: It's true and I think Naomi's making us think about that and focus on all of these different parts of marriage and then think about disaggregating them. And it reminds me a lot of property law and the bundle of sticks. You know, the idea that when you own property, what you have is a set of powers and rights that look like a bundle of sticks. You have the right to exclude other people from your property. You have the right to sell the property. You have the right to will the property to somebody else upon your death. There's lots and lots of different components to it. And I think she's pointing out that marriage is a bundle of sticks that includes lots of different aspects, not just the relational ones, but legal, political, economic sticks. And she's unbundling them. She's unpacking them and asking important questions about which sticks really belong in that bundle and which sticks don't belong in the marriage bundle. They should really go somewhere else. And that's a really interesting set of questions.
RISA GOLUBOFF: I agree with that. And I think she's also showing us that marriage is losing some of those sticks now, right? And that some of the things that used to come with marriage no longer do, given the changes in our political economy over the last half century. And there's an irony there, right? Because marriage over the last half century has become available to more and more people, right? First you get Loving versus Virginia and access across race. And now you have Obergefell and access to marriage by same-sex couples. And yet, at the same time, that more and more people get access — “Congratulations! You know, you won marriage! What is your prize?” Like, it's less meaningful now, right? The sticks are getting removed at the same time more people are getting access to it. And it reminds me a lot of the 1964 Civil Rights Act and particularly Title VII. So Title VII is the aspect of the Civil Rights Act that provides anti-discrimination protections for employment. And that happens really at the exact moment that good industrial jobs are disappearing. And so the idea is now you have access on a non-discriminatory basis to all kinds of jobs, but there are no more jobs.
LESLIE KENDRICK: It's a really nice analogy. And I think it could be that actually some parts of our conception of marriage are more flexible than the economic parts of our conception of marriage are — maybe even something as big and important as legal conceptions of who has a right to marry, even though that's an enormous seismic shift, that there's been more change on that front than there has been on conceptualizing what types of economic benefits belong with marriage, versus what types of economic benefits should derive from other institutions or other mechanisms.
RISA GOLUBOFF: In the before time, we have this myth of laissez-faire government, and even though the government does some things, it holds back from really providing a full safety net, like we see in Europe. And employers are interested in tying their employees to them. So they're interested in providing some kind of benefits, right? That goes to the Henry Ford story. He wants to be the one who doubles wages so he gets loyalty from his workers and they stay. And today there's still, I think, a lot of ambivalence in government and in the electorate and the political forces operating on government about the extent to which government should be providing benefits. But I think there's less ambivalence on the part of employers. And there's less desire that the nature of work has changed so much that many employers now don't want workers attached to them for the long run. And aren't interested in providing these benefits. And so this gap has opened up where the government's not necessarily providing it, but neither are employers. And so this is where some of those sticks are going, it's falling into that crevice.
FADE THEME MUSIC IN
LESLIE KENDRICK: Well, it's really fascinating work. And it was really interesting to talk about it with her and with you.
RISA GOLUBOFF: I agree.
THEME MUSIC UP THEN UNDER AGAIN
LESLIE KENDRICK: That’s it for this episode of Common Law. If you’d like to learn more about Naomi Cahn and her work on family law, head to our website, Common Law Podcast Dot Com. You’ll also find all of our previous episodes, links to our Twitter feed and more.
RISA GOLUBOFF: We’ll be back in two weeks with Columbia University’s Michael Graetz, author of “The Wolf at the Door.” He’ll talk to us about rising economic insecurity in the United States, and what it will take to ease it.
MICHAEL GRAETZ: If you ask me what the biggest hurdle is to that kind of change, it is the incredible short-term vision of our political representatives.
LESLIE KENDRICK: We can’t wait to share that conversation with you. I’m Leslie Kendrick.
RISA GOLUBOFF: And I’m Risa Goluboff. See you next time!
THEME MUSIC UP AND THEN UNDER
CREDITS: Do you enjoy Common Law? If so, leave us a review on Apple Podcasts, Stitcher — or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law, and is produced by Emily Richardson-Lorente and Mary Wood.
THEME MUSIC UP THEN OUT