The Next Battle for Marriage Equality

The Next Battle for Marriage Equality

If the social insurance system is built for a model of family that is rapidly disappearing, how long can it stand?

Last June, the Supreme Court legalized same-sex marriage throughout the United States. The historic opinion, written by Justice Anthony Kennedy, used language so soaring that it was quickly incorporated into wedding ceremonies. In September, I attended three that quoted Kennedy’s declaration that marriage “allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.”

Less often quoted, but arguably more important, is the section of Kennedy’s opinion which lists the “material burdens” placed on same-sex couples previously denied the right to marry: exclusion from the benefits and rewards given to workers and their spouses through retirement savings programs, health insurance, and tax policy, for example. “Marriage remains a building block of our national community,” Kennedy explained. “Just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.”

At first glance, Kennedy’s claim that the material benefits offered to married couples by the government and employers are there to “nourish” each union seems like nothing more than an idealistic spin on the obvious: Americans know that there are economic rewards to marriage. But Kennedy’s word choice was not random. Benefits designed to “nourish” do more than reward the act of getting married; they encourage married couples to behave in certain ways. Since their inception, America’s biggest social insurance programs have promoted inequality within marriages by pushing couples to organize their household economies so that one spouse is in the workforce while the other performs unpaid care work in the home.

Social Security, for example, encourages breadwinner-homemaker marriages using both carrots and sticks. Most people understand Social Security to pay out benefits at retirement purely on the basis of what individuals pay into the system during their working lives. But, in fact, Social Security does not pay everyone who contributes the same amount equally. Marital status also determines the size of an individual’s benefit. Social Security’s retirement insurance program offers a married person an extra 50 percent of whatever retirement benefit he or she earns. This “dependent benefit” is intended to support the worker’s spouse. Single people in the workforce pay the same Social Security taxes as married people, but they do not earn this dependent benefit. In other words, single people only earn two-thirds of what married people can earn.*

But, marriage isn’t always such a good deal. Only certain married people gain from Social Security’s benefit structure: married couples who generally fit the breadwinner-homemaker model. When spouses earn roughly equal amounts in the workforce, they lose. In a marriage where one spouse is employed and the other is not, the spouse who remains at home receives the dependent benefit—through her husband—without paying anything into the system at all. When both spouses are in the workforce, the dependent benefit is still available, but only one spouse can claim it. To claim the dependent benefit, however, the “dependent” spouse has to forfeit any Social Security benefits she has earned through her own earnings record. If there is a large enough gap between spouses’ earnings, this choice makes sense: 50 percent of the higher-earning husband’s benefit will amount to more than the individual benefit earned by many women. But this decision still leaves women having paid money into the system that has no bearing on the benefits they receive. Alternatively, if both spouses claim their individual benefits, they forfeit the dependent benefit their marriage entitles them to. This amounts to a Social Security penalty for dual-earner couples. Such couples do not receive the full benefits to which they are entitled. To this day, therefore, Social Security incentivizes marriages where one spouse stays home.

Today, fewer and fewer families conform to the breadwinner-homemaker model that the social insurance system rewards. Since the 1930s, when the Social Security system was created, divorce rates have risen and marriage rates have fallen. Between 1967 and 1979 the divorce rate doubled in the United States. Since the divorce rate’s 1979 peak, when there were 22.8 divorces for every 1,000 married couples, roughly 50 percent of all marriages have ultimately ended in divorce. Meanwhile, in 2014, one in five adults over twenty-five had never been married—in contrast to 1960, when it was roughly one in ten. And in 2012, for the first time, more unmarried women under thirty had children than their married counterparts. Even those couples that do marry and have children are different from those idealized by policymakers in the 1930s. In 2014, in 60 percent of married couples with children, both parents worked. Few couples, especially if they are parents, can afford to live on one person’s earnings.

While marriage has changed for many, Congress, through the laws it has passed—and refused to pass—has clung firmly to the twin ideas that the social insurance system should reward marriage and that marriages should be made up of breadwinners and homemakers. Each expansion of the social insurance system has reproduced this message. For example, Medicare provides health insurance to senior citizens through their work history or through their spouse’s work history. It thus gives married individuals significantly better access to healthcare in old age than single individuals.

At the same time, the structure of federal social insurance programs has become the model for the many private insurance programs that play a key role in the American social safety net. Employer-based health insurance, for example, offers many employees the option of receiving dependent benefits along with their own. Congress’s outdated model of marriage has even shaped newer private insurance offerings. In September, the New York Times reported that as companies have tried to become more family-friendly, many have started to offer better benefits such as longer paid family leave to employees who are designated “primary caregivers.” While many of these companies are ahead of federal policy in extending the same benefits to married and unmarried employees, they still impose a model of caregiving on couples that assumes that one spouse should be earning most of the income while the other does most of the child rearing. Most social insurance benefits—whether publicly or privately administered—still incentivize an outdated, unequal model of marriage. This is the social insurance system that same-sex couples now have access to.

It is a system that fosters inequality at every turn. Not only does it encourage inequality within marriages—making it easier for one spouse to earn significantly more while the other takes on the bulk of the unpaid care work—but it also discriminates against those who cannot or do not wish to marry. This discrimination exacerbates existing inequalities between upper-income and lower-income Americans. Marriage has increasingly become an institution of the economic elite. In the mid-1980s the divorce rate began to fall for college-educated couples and rise for couples without a college education. By 2004, college-educated couples still divorced at the same rate as in 1965—before divorce rates began to rise—while the divorce rate for non-college graduates was at an all-time high. Simultaneously, the marriage rate dropped for those without a college degree, but not for college graduates. By not marrying, low-income couples lose access to social insurance benefits, which in turn reinforces the income gap.

It is not a new problem that American social insurance policies create and exacerbate existing inequalities. For example, many scholars have shown that the original Social Security law was not only written to emphasize dependence within marriage but also to exclude the majority of African-American workers from receiving any benefits. It accomplished this by excluding all agricultural and domestic workers from the retirement insurance program. Over the decades, some excluded groups—including agricultural and domestic workers—have successfully demanded access to social insurance programs. None have successfully challenged its gendered structure.

Our present moment offers some hope that this pattern will change. If the social insurance system is built for a model of family that is rapidly disappearing, how long can it stand? As our national conversation turns from equal access to marriage to equality within marriages—which recent discussions about the challenges of balancing work and family suggest it is—can the social insurance system’s role in that debate continue to be overlooked? If we are serious about finally restructuring our social insurance system to meet the needs of families as they are, instead of as Depression-era policymakers hoped they would be, we must begin by studying earlier challenges to its structure.

The most direct assault on the gender biases of the social safety net came in the 1970s. As middle-class women entered the workforce in unprecedented numbers, feminists launched an ideological attack on the policies and cultural assumptions that confined women to the domestic sphere, and the divorce rate spiked. Divorced women in particular quickly discovered that the social insurance system was not built for them. After encouraging married women not to work, the system made no accommodation for divorced homemakers. Divorced women’s sudden loss of benefits pushed them to organize. In the 1970s many of these women joined feminist organizations where they developed and fought for a wide range of policy proposals to address their needs. These proposals included bills to provide women with Social Security benefits based on the value of the care work they performed in the home and policies that reconceptualized marriage as an equal partnership rather than a provider-dependent relationship. These campaigns ended with divorced women winning improved access to benefits but failing to restructure the social insurance system in a significant way.

Between 1969 and 1974 almost every state adopted new divorce laws that simultaneously made it easier for couples to end their marriages and less likely that wives would be awarded alimony. Reacting to women’s movement into the workforce as well as the demands of men’s rights groups, judges and lawmakers—who were, of course, almost all male—increasingly sought to have divorced women support themselves. In doing so, lawmakers ignored the challenges homemakers faced when they sought to enter the workforce with dated or nonexistent skills and work experience.

In 1971 a fifty-seven-year-old woman named Tish Sommers divorced after twenty-three years of marriage. A long-time homemaker, Sommers struggled to find a job after her divorce. This left her not only without a steady income, but also, and more importantly in her case, without health insurance. Sommers had a history of breast cancer that prevented her from finding affordable, comprehensive health insurance in the individual marketplace. She did, however, have a substantial inheritance, which allowed her to cover her costs. Sommers recognized that her story was at once typical and exceptional—many newly divorced women found themselves without access to critical social insurance benefits but few had the economic resources to fill in the gaps. Sommers decided to devote herself to helping women in her position who were even less fortunate.

A few years earlier, a woman named Betty Berry had divorced in New York. Solidly in the middle class but less well off than Sommers, Berry received alimony payments from her husband while she looked for a new career. She came to view these “like a pension right for the years she contributed to the marriage.” On the checks, she crossed out the word alimony and wrote “entitlement” before depositing them. Like Sommers, she began to fight for divorced women who had fewer political and economic resources than she.

Both women became early leaders in the feminist movement to reform the social insurance system. Working with the largest liberal feminist organization of the time—the National Organization for Women (NOW)—both women advocated for policies designed to make marriage and divorce easier for women. Berry drafted a “marriage insurance” proposal for NOW that sought to insert divorced women as a category deserving of economic protection into every aspect of the existing social insurance system. It included Medicare for women who lost health insurance through divorce, unemployment insurance for homemakers who suddenly lost the support of their husbands, insurance to stabilize women’s standard of living across marriage and divorce, and individual Social Security accounts for homemakers based on the imputed value of their labor. Sommers proposed a more limited agenda, pushing for legislation that would create support centers for newly divorced women whom she termed “displaced homemakers.” These centers would offer employment training and placement programs as well as healthcare clinics and psychological and legal support. They would support women through their transition out of marriage and help them reenter the workforce.

Notably, even though Sommers and Berry identified as feminists and worked within explicitly feminist organizations, they framed their proposals as a defense of the breadwinner-homemaker family. If divorce loomed like the Sword of Damocles over all homemakers, they argued, women would never decide to leave the workforce upon marriage. This framing gave both Sommers’s and Berry’s proposals a great deal of political appeal.

Congress extensively debated both proposals throughout the 1970s. In 1978, a limited version of Sommers’s proposal became national law. States, too, developed their own displaced homemaker programs. By the middle of the 1980s, there were over 1,000 centers across the country. Berry’s proposals, on the other hand, were more politically difficult to achieve. Many different congresswomen—including leading feminist legislators of the day such as Bella Abzug, Martha Griffiths, and Barbara Jordan—offered versions of bills to give Social Security to homemakers as individuals based on the value of their work in the home.

Even as they purported to protect a “traditional” family structure, all of these bills required a radical reconceptualization of the Social Security system. Built to suggest that it paid out what individuals paid in, Social Security was seen by many as a pure insurance program despite its redistributive aspects. The idea of providing a benefit directly to the homemaker who did not pay taxes visibly challenged this understanding. Although the Social Security system already gave married homemakers a supposedly “unearned” benefit through the extra dependent benefit it offered husbands—a fact that prompted many angry letters to Congress from working single women—an official homemakers’ benefit paid directly to women entirely outside of the workforce presented a more direct attack on the idea of Social Security as an insurance system.

The political weaknesses of Berry’s proposals—and the limitations of what displaced-homemaker centers offered—left room for bolder ideas. In 1974, Arvonne Fraser, the national president of the Women’s Equity Action League (WEAL), another feminist organization, put forward a proposal that focused less on how to compensate women after marriage and more on changing how social insurance policies incentivized behavior during marriage. Fraser proposed to amend the Social Security Act so that economic partnership served as the model of marriage that undergirded the administration of benefits. This policy proposal, known as “earnings sharing,” became liberal feminists’ preferred model for all social insurance benefits during the second half of the 1970s.

Earnings sharing would have eliminated Social Security’s dependent spouse benefit entirely. Instead, any year that a couple filed a joint income tax return, each member of the couple would receive individual Social Security credits based on half of their combined earnings. These credits would follow each individual if the marriage ended.

This proposal appealed to feminists for a number of reasons. First, it would shift the Social Security system to reward dual-income couples. Fraser argued that this more accurately reflected the nature of modern marriage. By 1970, one-third of married women were in the paid labor force, almost double the number in the 1940s. By 1985, around 50 percent of mothers with children under three and roughly 70 percent of mothers with children over six were in the labor force. Second, earnings sharing had the potential to protect homemakers without raising the costs of the social insurance system. It shifted the distribution of resources between spouses rather than creating entirely new benefits for homemakers. Feminist organizations did argue that the best version of earnings sharing would also involve an increase in benefits. The president of NOW testified, “Equity and adequacy under Social Security will not be achieved without increased spending. The system has treated women as dependents rather than as individuals, and has assumed that dependents need (or have earned the right to) less than individuals. When the system treats women as individuals, and recognizes homemaking as work, costs will necessarily increase.” But, feminists were willing to compromise on a cost-neutral plan. The cost effectiveness of the earnings sharing proposal allowed it to quickly pick up political momentum. By 1979, NOW and the National Women’s Political Caucus had voiced their support for the proposal along with WEAL. In 1980, the President’s Commission on Pension Policy endorsed a cost-neutral version of the plan.

Feminist activists also imported the earnings-sharing model and the description of marriage as an economic partnership into policy proposals targeting other social insurance benefits that used the provider-dependent model of marriage. In the early 1980s, some of the women most actively pushing for access to such benefits were the former wives of members of the military, Foreign Service officers, and civil servants. As these women organized to demand continued access to the excellent federal retirement and medical benefits their husbands had earned, they turned to the argument that they were partners in their husbands’ careers. They demanded recognition for the social events they organized, the languages they learned, and the other “volunteer” work they did to keep army bases and embassies running. By 1984, Democratic vice presidential candidate Geraldine Ferraro was describing her bill to regulate employer-based pensions as “built on the belief that marriage is a partnership and that the work of both spouses should be rewarded with the retirement benefits they have earned together.”

The growing popularity of the earnings-sharing model attracted powerful opposition. Most notably, Phyllis Schlafly began organizing against the proposal. She published a document evoking Vietnam War protests titled, “Don’t Let the Libs and the Feds Tear Up The Homemaker’s Social Security Card.” Schlafly argued that earnings sharing would push women into the workforce by punishing homemakers with either diminished Social Security benefits or raised taxes. This was a real possibility; but, as drafted, many of the specific earnings-sharing bills included provisions to ensure that homemakers did not lose any benefits. In an issue of the Phyllis Schlafly Report, Schlafly insisted, “Women’s Lib advocates are green with envy at the present Social Security system under which the Homemaker receives as much Social Security when she retires as the woman in the work force. Women’s Lib advocates think the Homemaker is worth nothing because she isn’t paid a money wage.” Schlafly failed to consider, or chose to ignore, how vulnerable the dependent-benefit system left women to a change in marital status.

Although Schlafly’s brand of conservatism helped Ronald Reagan win the White House in 1980, earnings sharing remained on the legislative agenda well into the new decade. It even received bipartisan support in the Senate, where Bob Dole, among other Republican senators, endorsed it. Nevertheless, the active opposition of a significant portion of the Republican Party prevented earnings sharing from ever becoming law. Congress never recognized marriages as economic partnerships, and the breadwinner-homemaker model remained a foundation of the American social insurance system.

Even so, the sustained pressure divorced women brought to bear on Congress over the course of the 1970s and ’80s did lead to a series of new laws for their benefit. In addition to the establishment of new displaced homemakers centers, between 1974 and 1985 divorced women also won legislation improving their access to public and private retirement pensions and health insurance through their ex-husbands. These new laws gave divorced women access to benefits not as their ex-husbands’ partners but, again, as dependents. For example, divorced women who had been married for at least ten years could receive the dependent Social Security retirement benefit their ex-husband would have received had they stayed married. This amounted to a mere 50 percent of whatever he received. If she remarried—essentially, if she had a new man on whom to depend—it was cut off immediately. This and divorced women’s other wins were extremely limited but critical victories. The activists who fought for them rightly celebrated the crucial protections they offered women who had little.

Thus far, the movement for marriage equality led by LGBTQ activists has followed in the footsteps of the feminists who fought for a place for divorced women in the social insurance system. It has succeeded at expanding access to marriage-based social insurance benefits without changing the structure of these benefits. Both of these campaigns have made access to important benefits more inclusive. But our social insurance system still discourages equality between partners in a marriage and actively discriminates against those who never marry. It perpetuates many forms of economic inequality and, in heterosexual marriages, reinforces gender roles in the process.

It is not hard to imagine a social insurance system that would promote equality. For example, the United States could, as many Nordic countries do, provide retirement and health benefits as individual entitlements on the basis of citizenship rather than marital status. Yet, for the foreseeable future, America’s marriage- and employment-based system is here to stay. The political obstacles facing those who seek to entirely restructure the system are simply too great, involving both increased expenditures and an explicit shift away from rewarding breadwinner-homemaker couples. Nevertheless, given that most people’s lives no longer look like those the Social Security law was designed to encourage, there is reason to hope that some reform is possible.

Recovering the earnings-sharing agenda would be a good place to begin. Today, with more dual-earner couples than ever, we’re more cognizant of the economic and caregiving partnerships that marriages require than we were in the 1970s. A Social Security system that recognized this would make it easier for women and men to take on caregiving responsibilities without bearing undue long-term economic penalties. Yet, earnings sharing would still only benefit married partners. It would not exacerbate the critical divisions the Social Security system already creates between married and unmarried couples, but it would do little to fix them. Ironically, it is this division that makes it so difficult to restructure the social insurance system.

By offering special privileges to married couples—and by slowly expanding which married couples it includes—the insurance system separates those who might make common cause. Because it is easier to win new access to benefits through marriage than to overthrow the marriage-based structure, the social insurance system discourages couples from allying with single people to challenge the system as a whole. Those interested in reforming the Social Security system to better value caregiving should look for policies that bring couples and single people together. For example, a policy agenda centered on paid family leave for all caregivers and expanded access to affordable childcare would help couples and single parents alike. Like earnings sharing, these policies would help spouses share responsibility for caregiving and breadwinning, but they would also offer support to single parents. As even existing marriage-based benefits fall more and more out of line with the lives led by married couples, this is the agenda around which we should build new alliances.

Suzanne Kahn received her PhD in American History from Columbia University in 2015. Her research examines how rising divorce rates have shaped the politics and policies around women’s access to economic resources.