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What Is a "Family"? Conflicting
Messages from Our Public Programs
STEPHEN D. SUGARMAN*
Families are changing, and law is slowly adjusting in response.
Some public programs, like food stamps and public housing,
acknowledge that families now come in an enormous variety of
forms and formally offer aid to all who qualify on the basis of
need. But other public schemes, like Social Security and tax law,
are caught in something of a time warp. Their structure continues
strongly to favor the "ideal" family of the 1950s in which the
husband earns the money and the wife stays at home caringfor
their children. Welfare and immigration law fall somewhere in
between these extremes, although both aspire to promote tradi-
tional family arrangements. This article examines the uneven
willingness of this range of public programs to accept today's
more diverse family types, with special emphasis on two-earner
couples and unmarried cohabitants, both gay and straight.In the
end, a disheartening conclusion is that while programs aimed at
the poor are more tolerant of family variety, they also have
become more miserly at a time when the old-fashioned programs
aimed at the financially better off have become more generous.
Families are changing, and our society is divided over what a family
should be.^1 This article explores how different public programs treat inti-
mate household members who are likely to view themselves as a family.
***** Roger J. Traynor Professor of Law, University of California, Berkeley (Boalt Hall).
This article draws on work done in the seminar I taught with Professor Ira Ellman on The Family in Public Programs. Seminar contributors are acknowledged below in the sections rele-
vant to their projects. Considerable general assistance was provided by Christine Fujita, University of California Berkeley (Boalt Hall) class of 2009 and Pam Spritzer, Columbia Law School.
1. See generally ALL OUR FAMILIES: NEW POLICIES FOR A NEW CENTURY (Mary Ann
232 Family Law Quarterly, Volume 42, Number 2, Summer 2008
We will see that (^) programs such as Social Security, tax, food stamps, pub- lic housing, welfare, and immigration treat households (^) very differently. Put simply, programs aimed primarily (^) at middle-class and richer fami- lies advantage the traditionally (^) "ideal" nuclear family in which the hus- band goes out to (^) work and the wife stays at home to care for the children. By contrast, at least some public (^) programs aimed at low-income families are much more (^) expansive in the sort of families they recognize. These include cohabitating (^) unmarried heterosexual couples, gay and lesbian families, single-parent (^) families, and families that include children unre- lated (^) to their caregivers by marriage, blood, or adoption. However, even if programs aimed at low-income (^) families are more tol- erant of (^) what constitutes a "family," they are not necessarily more (^) gener- ous to those families, as compared with financially (^) better-off families. Indeed, (^) recent reforms-especially in tax and welfare-have (^) largely moved in the opposite direction, providing (^) more financial benefits to wealthier families while cutting back on (^) support for poorer ones. One could attribute this trend to social disapproval (^) of the wider legal definition of the family in programs aimed at the (^) poor, or simply to social disap- proval of the seemingly greater diversity (^) in family types that we find among the poor. But this does not (^) seem the right explanation. Rather, in my view, at the bottom of these changes (^) is a commitment to the idea that the rich generally deserve their wealth and the poor (^) ought to do more to help themselves. In a study of public programs such as this one, it should be self-evident that an alternative solution lies (^) in political change that would better treat low-income families regardless (^) of their configuration.
I. Changing Social Norms By (^) the 1950s, American law and policy, largely centered on (^) a single vision of the "ideal" family, composed of (^) a married man, who worked in the paid labor force, and his wife, who spent most of her time in (^) their home caring (^) for their biological children. Americans were strongly encouraged to conform to that norm. (^) Other groupings of adults and children-even if they were considered (^) families by some people-were generally disfavored by the predominant social values (and by the public programs) (^) of the time. To be sure, if we look back throughout American history, (^) it has been long understood that not everyone's lives conformed to this "ideal" family.^2 For example, and most dramatically, during times of (^) slavery in America,
Mason, Arlene Skolnick & Stephen (^) D. Sugarman eds., 2d ed. 2002) [hereinafter ALL OUR FAMILIES].
2. See generally (^) STEVEN MINTz, HUCK'S RAFT: A HISTORY OF AMERICAN CHILDHOOD (2004).
234 Family Law Quarterly, Volume 42, Number 2, Summer 2008
structure, there remained a strong societal preference for the "ideal" nuclear family. 8 "Broken" families were viewed by mainstream society as failures. Single women having children outside of marriage were highly stigmatized, and their children were disparaged as "bastards." Unmarried couples living together "in sin" were scandalous. Homosexual (^) couples were closeted, and the very idea of same-sex relationships was generally abhorred. This preference for the traditional nuclear family was broadly rein- forced by American laws and policies. For example, (^) on the private law side, divorce was not easy to obtain and was widely (^) disfavored; 9 and inheritance laws generally failed to recognize children born out of wed- lock.' °^ On the public side, the Social Security system, which was put into place in the 1930s, was structured to favor the two-parent family with the father working for wages and the (^) mother at home raising the children." Federal income tax laws favored married couples over unmarried individ- uals, and, among married couples, financial advantages flowed to single- breadwinner households.1^2 Although the welfare system somewhat grudg- ingly provided financial help to poor single mothers of (^) young children, it was based^ on^ the^ assumption^ that^ recipients^ were^ unlucky^ widows.'^^3 Today, things are very different. To be sure, many Americans who self- identify with what is termed the "family values" (^) crowd still idealize the stable nuclear family in which the husband works for wages and the wife stays at home and cares for the children. 4 On the other hand, many have challenged this narrow vision of the family, disputing the notion that this sort of family is morally superior or necessarily best for children and for society in general.' 5 Nowadays there is much more social acceptance of many other types of families. Perhaps most surprisingly, there seems to be growing support for legal
- Sugarman, Single-ParentFamilies, supra note (^) 4, at 22-32. 9. Id. at 21. Before no-fault divorce laws became more prevalent (the first one emerged in California in 1970, rapidly followed by other states), divorce could generally only be obtained for reasons of adultery, spousal abuse, or desertion. Couples sometimes engaged in fraudulent charades (often involving the husband pretending to engage in adultery) to satisfy domestic relations laws. See generally HENDRIK HARTOG, MAN & WIFE IN AMERICA: A HISTORY (2000).
- Id. at 22. 11. See infra note 22.
- See (^) infra notes 33, 91.
- See infra note (^) 57.
- See generally DAVID BLANKENHORN, FATHERLESS AMERICA (^) (1995); DAVID BLANKENHORN, THE FUTuRE OF MARRIAGE (2007); (^) DAVID POPENOE, LIFE WITHOuT FATHER (1999); LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE (2000); JAMES Q. WILSON, THE MARRIAGE PROBLEM (2002).
15. See generally STEPHANIE CooNTz, THE WAY WE REALLY ARE: COMING TO TERMS WITH
AMERICA'S CHANGING FAMILIES (1997); STEPHANIE COONTZ, MARRIAGE: A HISTORY (2005).
What Is a "Family"?^^235
and societal recognition, particularly in fairly liberal urban^ centers,^ of^ sta-
ble, loving relationships formed by gay and lesbian couples. 16 Further,
there is increasing acceptance of the fact that gay and^ lesbian parents,
whether "domestic partners" or truly "married couples,"^ can^ successfully
raise children together (even if the children are^ not^ their^ joint^ biological
creation). Indeed, apart from their homosexual character,^ many^ of^ these
families are touted as exemplifying the norms of^ 1950s^ family^ life,^ with
one predominant earner and one predominant child^ raiser.
In addition, as a result of both "women's liberation" and the^ higher^ cost
of maintaining what are now often viewed as the material requirements^ of a
middle-class lifestyle, more and more couples^ find^ that both^ of^ the^ partners are in the paid labor force. 7 Today, a majority of mothers work^ for^ money, even if they work fewer years and hours (and are paid less) than fathers.^ And while there^ is^ considerable^ anguish^ even^ among feminists about^ how women are to balance their roles as wage earners and mothers, it^ is^ simply^ no^ longer the case that the clearly preferred social norm is^ for^ women^ to^ retreat^ from the workplace^ for^ as^ long^ as^ they have young^ children.'^
Moreover, divorce today is^ easy^ to^ obtain,^ far^ more^ common,^ and much more accepted than it was in 1950,19 and,^ in^ turn,^ because^ of^ remarriage, stepfamilies are also far more numerous than before.^ (^20) Furthermore, hav-
ing a child out of^ wedlock,^ living^ as^ a^ long-term^ single-parent,^ and^ cohab- iting without marrying are^ much^ less^ stigmatized^ and^ far^ more^ frequent than before^ (especially^ among^ white Americans).^
- See Judith Stacey, Gay and^ Lesbian^ Families:^ Queer^ Like Us,^ in^ ALL OUR^ FAMILIES, supra note 1, at 144, 151-56; see also In^ re^ Marriage Cases,^183 P.3d^ 384 (Cal.^ 2008). 17. The labor force^ participation^ rate^ of^ married women^ with^ children climbed^ from^ twen- ty-four percent in 1950, to forty percent^ in^ 1970,^ to^ seventy percent^ in^ 1999.^ Neil^ Gilbert, Working Families:Hearth to^ Market,^ in^ ALL^ OUR^ FAMILIES,^ supra^ note^ 1,^ at^ 220, 220. Millions of mothers in middle-class families must enter the^ workforce,^ not^ by^ choice^ to^ gain^ an^ economic
edge, but just to^ make ends meet.^ See^ generally^ ELIZABETH^ WARREN^ &^ AMELIA^ WARREN^ TYAGI,
THE Two-INCOME TRAP (2003).
- See Gilbert, supra note 17, at 220-43. See^ generally^ ANN^ CRITTENDEN,^ THE^ PRICE^ OF MOTHERHOOD (2001);^ ANN^ HULBERT,^ RAISING^ AMERICA^ (2003);^ JERRY^ A.^ JACOBS^ &^ KATHLEEN GERSON, THE TIME DIVIDE (2004); LINDA C. MCCLAIN, THE^ PLACE^ OF^ FAMILIES^ (2006);^ ARLIE RUSSELL HOCHSCHILD, THE^ TIME BIND^ (1997).
- See supra^ text accompanying^ note^ 9.^ See^ generally^ ANDREW^ HACKER,^ MISMATCH (2003); E. MAVIS HETHERINGTON, FOR BETrER OR FOR WORSE (2002).
- About seventy percent of divorced mothers are^ remarried within^ six^ years.^ Moreover, twenty-eight percent of children are born to^ unwed^ mothers,^ many^ of^ whom^ will^ eventually marry someone who is not the father.^ Mary^ Ann^ Mason,^ The^ Modem American^ Stepfamily: Problems and Possibilities,in^ ALL^ OUR^ FAMILIES,^ supra^ note^ 1,^ at^ 96,^ 97.
- For a discussion of changes in family^ structure^ between^^1950 and^ 1980,^ see^ CHARLES MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY, 124-34 (1984).^ From^1950 to^ 1980,^ the percentage of children born to unwed black mothers increased^ from seventeen^ to^ forty-eight percent; and the percentage of children born to unwed white mothers increased from^ about^ two to eleven percent. Id. at 126-27. Between 1968 and 1980, the percentage^ of^ traditional^ two-par-
What Is a "Family"? 237
A (^) few specific additional points should be noted about the 1939 fami- ly benefits provisions. First, if the wife had also earned (^) a retirement pen- sion on the basis of her own paid wages, then her own pension benefit would reduce, dollar-for-dollar, the amount of the pension benefit that would otherwise be paid to her because she was (^) a spouse. 25 This meant that a large proportion of women who worked in the paid labor force gen- erally received pensions that were no larger than what they would have received had they remained in the home. This rule clearly favored the stay-at-home wife. Second, if the spouses had divorced before the man retired or died, no benefit would be paid to the divorced woman-thereby favoring long-intact marriages. 26 Third, if the couple was not (^) recognized as married under state law, then the woman would not qualify for benefits as a spouse, even if the couple had lived together and she had been long- dependent on the man's income. 27 Fourth, generally speaking, the chil- dren's benefits were reserved for the legitimate biological children, stepchildren, and legally adopted children of married couples.2 8^ Overall, then, the initial parameters of the family benefit features of Social Security plainly favored the "ideal" family described earlier. Since 1950, however, the scheme has been amended to recognize some, but only some, (^) of the now more openly tolerated family types. For exam- ple, spousal benefits were extended to some divorced women, first for those who had been married for twenty years, and later for those who had been married for ten years. 29 In addition, more and more children were
- Id. at § 202(b)(2) ("Such wife's insurance benefit for each month shall (^) be equal to one-half of a primary insurance benefit of her husband, except that, if she is entitled to receive a primary insurance benefit for any month, such wife's insurance (^) benefit for such month shall be reduced by an amount equal to a primary insurance benefit of such wife.") (emphasis (^) added).
- Id. at § 202(b)(1) (cutting off a wife's primary insurance benefits upon divorce). 27. Social Security Act Amendments of 1939, ch. 666, (^) tit. 2, Pub. L. No. 76-379, § 209(m), 53 Stat. 1360 (codified as amended at 42 U.S.C. § 416(h) (2000)) ("In (^) determining whether an applicant is the wife, widow, child, or parent of a fully insured or currently insured individual ... the Board shall apply such law as would be applied in determining the devolution of intes- tate personal property by the courts of the State in which such insured individual (^) is domiciled.").
- Prior to the 1965 amendments, illegitimate children were not entitled to children's insurance benefits, unless state law treated such children as legitimate for intestate property law purposes. Social Security Act Amendments of 1939, ch. 666, tit. 2, Pub. (^) L. No. 76-379, § 209(k) (1939) (defining "child" to mean a biological child, a stepchild, and a child legally adopted); id. at § 202(d)(1)(c) (requiring that a child must have (^) been "dependent" on the insured individual); and id. at § 202(d)(3) (providing that an illegitimate child cannot (^) be deemed dependent on the insured).
- In 1950, Congress extended benefits (^) to divorced mothers caring for a child of her deceased former husband. Social Security Amendments of 1950, (^) ch. 809, § 101(a), 64 Stat. 482 (codified as amended at 42 U.S.C. § 402(b)(1) (2000)). In 1965, Congress (^) extended "wives' benefits" to divorced women who reached retirement (^) age, upon three conditions: (1) that she was married for at least twenty years to the ex-husband, (2) that she was not presently married to another, and (3) that she was receiving actual support from the (^) ex-husband or had a legal
238 Family Law Quarterly, Volume 42, Number 2, Summer 2008
added to the list of those who qualified as "dependents" and hence eligi- ble for children's benefits through Social (^) Security. By now nearly all stepchildren and most children born (^) out of wedlock will qualify. 3 " On the other hand, it is important to appreciate the limited nature (^) of Social Security reform. First, domestic (^) partners (that is, unmarried couples, whether heterosexual or homosexual) still do not qualify for (^) spousal benefits. That is, it does (^) not suffice to live together, to self-identify as a "couple" (^) and to be (^) financially interdependent. (^) Indeed, (^) the Defense of Marriage Act, 3 ' enacted in 1996 in response to state (^) law changes with respect to gay and lesbian couples, explicitly denies (^) Social Security benefits to same-sex domestic partners even if they are or were to be rec- ognized as married under state law-a sharp departure from the program's traditional deference to state law as the ground for deciding whether some- one is a spouse. Second, and perhaps equally important, the benefit struc- ture of Social Security still strongly favors one-earner couples (indeed the spousal benefit for widows has been enhanced over the years). 32
B. Tax
U.S. federal income tax law 33 continues to be much like Social Security. Two points stand out. First, under our progressive income tax scheme, couples who can combine and in effect average down their income gain the benefit of lower marginal tax rates than would be applied
claim to such support. Social Security Act Amendments of 1965, Pub. L. No. 89-97, § 308, 79 Stat. 286, 375 (codified as amended at 42 U.S.C. § 402(b), (g) (2000)). Congress eliminated the support requirement in 1972 and lowered the required duration of marriage to ten years in 1977. Social Security Act Amendments of 1972, Pub. L. No. 92-603, § 114, 86 Stat. 1329, 1348 (codified as amended at 42 U.S.C. § 402(b), (g) (2000)); Social Security Act Amendments of 1977, Pub. L. No. 95-216, § 337, 91 Stat. 1548 (codified as amended at 42 U.S.C. § 402(b), (g) (2000)).
- The current version of the Social Security Act defines "child," similar to the 1939 Amendments, to mean a biological child, a stepchild, and a child legally adopted. 42 U.S.C. § 416(e) (2000). However, in certain circumstances, it also defines a "child" to mean a person who is the grandchild or stepgrandchild of an individual covered by Social Security or his or her spouse, and in certain circumstances deems a person to be (^) a legally adopted child or stepchild, even if the person did not have such a status before that individual died. Id.
- Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at I U.S.C. § 7 (defining the meaning of "marriage" in interpreting (^) federal law to mean "only (^) a legal union between (^) one man and one woman (^) as husband and wife") (^) and at 28
U.S.C. § 1738C (2000) (providing that no state (^) is required to give any effect to a law that treats a "relationship between persons of the same (^) sex as marriage")).
- See Blumberg, supra note 22; Liu, supra note 22.
- See generally Edward J. McCaffery, (^) Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code, 40 UCLA L. REV. 983 (1983); Blake Thompson & Grace Ho, Taxing Families: (^) The Family in the Internal Revenue Code and the Sometimes Mutually Exclusive Demands of Various Family Models on the Code (2005) (unpublished com- ment on which this section draws, on (^) file with the author).
240 Family Law Quarterly, Volume 42, Number 2, Summer 2008
who are far less likely to pay for child care (although employed single
mothers can also benefit from the credit). Hence, this reform is a sharp
break from the long-standing favoritism of one-earner couples. Partly in
response to a political backlash to that provision, a general Child Tax
Credit (CTC) of $1,000 annually is now also provided to non-high-earner
parents, including^ those^ who^ care^ for^ their^ own^ children.^
Perhaps the most important change with respect to families in the past
several decades has been the adoption of the Earned Income Tax Credit
(EITC), which primarily provides money to working-class parents with
quite modest earnings.^4 " This is a "refundable" credit, which means that
claimants are eligible for the credit even if they otherwise owe no taxes.
Although both married and single taxpayers may claim the (^) EITC, they
have to have earned income to qualify, and hence, at least for single par-
ents, this provision plainly encourages mothers to take paid work.
Ironically, because of the way the EITC is structured, low-income couples
can face a marriage penalty that is somewhat analogous to the "marriage
tax" faced by married couples with higher (and relatively equal) incomes.^4
Finally, there is yet another parallel to Social Security. At the level of the couple, the main tax benefits attached to having children (the CTC and
EITC) narrowly define the family by requiring marriage. Yet, at the child
level, these provisions are more generous as they include, for example,
children born out of wedlock. Indeed, in one respect, tax law has had a
longstanding (^) tolerance as to which children may be deemed part of the
family. Tax exemptions, which may be claimed for "dependents," are
39. The Child Tax Credit was enacted as part (^) of the Tax Payer Relief Act of 1997, Pub. L. No. 105-34, tit. I, § 101(a), III Stat. 796 (1997) (codified as amended at I.R.C. § 24 (2000)). The purpose was to reduce tax liability to reflect "a family's reduced ability to pay taxes as fam- ily size increases." Id. Congress believed providing a tax credit for families with dependent chil- dren would better recognize the financial responsibilities of raising children and promote fami- ly values. H.R. Rep. No. 105-148, at 310 (1997).
- Eligible individuals can receive a credit against their yearly taxes equal to a certain credit percentage (dependent on the number of qualifying children) of their earned income for the year, not exceeding a certain amount. Tax Reduction Act of 1975, Pub. L. No. 94-12, 89 Stat. 26 (codified as amended at I.R.C. § 32 (2000)). Nonparents also qualify, but for much smaller benefits. For instance, an individual with one qualifying child gets a tax credit equal to thirty-four percent of their income, while an individual with no qualifying children gets a tax credit equal to almost eight percent. I.R.C. § 32(b)(l)(A). For a general discussion of the EITC, see generally Ann L. Alstott, The Earned Income Tax Credit and the Limitations of Tax-Based Welfare Reform, 108 HARV. L. REV. 533 (1995); Lawrence Zelenak, Redesigning the Earned Income Tax Credit as a Family-Sized Adjustment to the Minimum Wage, 57 TAX L. REV. 301 (2004).
- Consider, for instance, an unmarried couple with two children and a married couple with two children. The unmarried couple can file their tax returns separately and each claim one qual- ifying child for EITC purposes. 1.R.C. § 32. Comparatively, the married couple is penalized, because to claim the EITC the couple must file a joint return, which pushes up the family income and reduces the credit. Id. at § 32(d). Thus, in this case the EITC penalizes married couples.
What Is a "Family"? 241
available with^ respect^ to^ any^ child^ (even^ if^ legally^ completely^ unrelated^ to
the taxpayer) so long as the child lives with, and is financially supported
by, the claimant.^42
Thus, when it comes to couples, tax law is, broadly speaking, like
Social Security in its favoritism of "ideal" families. And yet, also like
Social Security, it has come some way in acknowledging a^ broader^ range
of parent-child relationships in American families. Given^ the^ continuing
political strength of well-off married couples^ with^ one main^ breadwinner,
it is not surprising to see the ongoing bias at the couple level in both the
tax and Social Security programs.
C. Food Stamps
The Food Stamp Program,^43 adopted in its current form in the 1960s,
stands in sharp^ contrast^ to^ both^ Social^ Security^ and tax law.^ Food^ stamps
provide funds to low-income households for the purchase of approved
food items." Unlike Social Security, which is available to anyone who
works in covered employment, or tax law, which is primarily aimed at the
"haves" rather than the "have-nots," the Food Stamp Program is a "means-tested" program restricted (^) to those with immediate (^) financial need.
The theme to be emphasized here, however, is the considerable difference
between the programs in terms of what sorts of families they recognize.
Because the Food Stamp Program is structured around "household"
eligibility, this^ means^ that^ many groups^ who^ are^ not^ treated^ as^ families
by Social Security or tax law can obtain food stamps as a unit. 45 Most
strikingly, these include families headed by unmarried cohabitants-both
heterosexual and homosexual. Single mothers qualify for food stamp just
as readily as couples, and indeed, the largest category of food stamp
- The term "dependent" for the purpose of tax deductions (including the Child Tax Credit and EITC) is broadly defined to include a "qualifying relative," an individual who "has the same principal place of abode as the taxpayer and is a member of the taxpayer's household." I.R.C. § 152(c)(1).
- See generally Ann Rubinstein, The Family in Food Programs (2005) (unpublished comment on which this section draws, on file with the author). 44. See Food Stamp Act of 1964, Pub. L. No. 88-525, 84 Stat. 2048 (codified at 7 U.S.C. §§ 2011-2036 (2000)). In fact, today recipients do not get "stamps" but rather what is in effect a debit card that allows them to charge qualifying food to the card's account balance in the way that other shoppers charge bank-account-backed debit cards or credit cards. United States Department of Agriculture, Food and Nutrition Service, Facts About the Food Stamp Program, http://www.fns.usda.gov/fsp/applicant-recipients/facts.htm (last visited June 23, 2008).
- A "household" is broadly defined to include "a group of individuals who live together and customarily purchase food and prepare meals together for home consumption." 7 U.S.C. § 2012(i) (2000). Participation in^ the^ program^ is^ limited^ to^ households "whose incomes^ and^ other financial resources, held singly or in joint ownership, are determined to be a substantial limit- ing factor in permitting them to obtain a more nutritious diet." Id. at § 2014(a).
What Is a "Family"? 243
stitutional on the ground that it was intentionally aimed^ at^ harming^ a^ polit-
ically unpopular group-that is, hippies.^ By^ striking^ down^ the^ "related"
requirement, Moreno allowed^ both^ hippies^ and^ separate^ low-income^ fam-
ilies forced to share one living unit to continue claiming benefits."
0 But for
purposes of this analysis, it^ is^ critical^ to^ understand that^ the^ statute^ would
also have cut off food stamps^ to^ cohabiting couples^ who^ considered^ them-
selves (and their children) a single family, including both^ heterosexual
and homosexual^ partners.
The upshot today is that the^ Food^ Stamp^ Program^ is^ essentially^ indif-
ferent to family structure and tolerant^ of^ any^ family^ type (even "com-
munes") so long as the members live in^ the^ same^ household.^ Indeed,^ in the
rather rare instance in which adult family^ members^ live^ together but^ do
not eat together-such as when one holds^ an^ all-night^ job^ -the^ Food
Stamp Program rules actually favor formally unrelated parents^ over^ mar-
ried couples. This is^ because^ the^ former^ may^ file^ for^ benefits^ as^ separate
claimants,^51 and under the^ right^ circumstances,^ the^ household^ can^ wind^ up
with more food stamps than had^ it^ claimed^ as a^ single^ unit.
This rather unusual example highlights a different point, however. In
Social Security, for example, it would normally benefit^ cohabiting couples
and their children to be treated as a family. Yet^ because^ the^ Food^ Stamp
Program is^ means-tested,^ a^ wide definition^ of^ the^ applicant^ group^ can^ in
some instances be harmful to claimants. If^ cohabiting^ couples^ and^ their
children apply as a single unit, then the incomes^ of^ all^ adults^ in^ the^ unit^ are
aggregated in determining both^ the^ eligibility^ of^ the^ household^ and^ the
amount of assistance. Generally, as more individuals^ are^ added^ to^ a^ house-
hold, the allotment of food stamps per person goes down. Thus, the current
arrangement, although more^ generous^ to^ needy^ cohabiting^ couples^ than^ the
amendment struck down in^ Moreno,^ is^ not^ as^ favorable^ as^ one^ in^ which
cohabitants have^ the^ option^ to^ apply separately (even^ if^ they^ share^ food^ and
eat together). In this respect, we see an odd difference^ with^ tax law.^ For^ the
latter, equal-earning unmarried^ partners^ can^ file^ separate tax^ returns^ and,
because of the "marriage tax," are^ financially^ better^ off^ not^ being married.
However, under the^ Food^ Stamp^ Program,^ the^ ability^ to^ file^ separately^ is
an advantage denied to unmarried partners who^ would^ qualify^ separately
for the program or for a higher allotment^ of^ food^ stamps.
50. See generally id., but see Lyng v. Castillo, 477 U.S. 635 (1986) (upholding the consti-
tutionality of legal presumptions that related recipients are a "household").
51. As more individuals are added to a household, the allotment of food^ stamps per^ person
goes down. However, spouses^ and^ relatives cannot^ file as^ separate^ claimants because^ of^ an^ irre-
buttable presumption that related recipients^ are a^ "household"^ even^ if^ they do^ not^ eat^ together.
7 U.S.C. § 2012(i)(2) (2000).
244 Family Law Quarterly, Volume 42, Number 2, Summer 2008
D. Housing
The legal structure of our public-housing (^) schemes 5 2^ broadly parallels the Food Stamp (^) Program. The United States has two major public-hous- ing programs. (^) In one, the government owns housing and makes units available to needy people at low cost; in the other, commonly known as Section 8, the government subsidizes the rental of privately owned hous- ing that is rented to those in need. In both of these programs, there is, at least formally, a great tolerance for all sorts of family structures.^53 Single mothers and their children qualify for public-housing units (whether the mothers are widows, divorcees, or never-married). (^) So, too, unmarried cohabiting couples (^) with children qualify for public housing slots, at least so long as they are poor enough to be eligible. (^) Indeed, there is nothing in the official housing policies that would make gay and lesbian applicants ineligible, provided (^) they otherwise qualify. And, it is considered altogether appropriate (^) to award apartment units with an adequate number of bedrooms to poor families that are raising children who are neither their biological nor adopted children (for example, (^) nephews and nieces). This is not to say that there are no difficulties faced by non-"ideal" fam- ilies connected (^) to public housing. For one thing, many low-income fami- lies have (^) unstable family structures, and housing authorities often have difficulties with these arrangements. After all, moving people from (^) one apartment (^) to another as family structure changes (because of a correspon- ding change in the size of the housing unit for which the family would seemingly now qualify) is cumbersome and often practically impossible. Moreover, it can be especially problematic if a single woman living in a
public-housing unit wants to bring a man to live in her apartment. Then
the authorities want information regarding his income, how much he will
contribute to the rent, and so on. If the woman's relationship with the man
is fairly new, she might well be unsure how long it will last and how much
of a contribution he will reliably provide. This tempts some women to
- See (^) generally Madeline Howard, Housing the American Family: An Analysis of Subsidized Housing (^) Policy and Its Effects on Nontraditional,Low-Income Families (2005) (unpublished comment on which this section draws, on file with the author).
- U.S. Department of Housing and Urban Development (HUD) regulations (^) broadly define families eligible for federal public housing programs. Most importantly, they do not set marriage or other formal relationship requirements. Rather, the focus is on the family's status as a low-income (^) family. See 24 C.F.R. § 960.102 (2000) (setting low-income status as a thresh- old for eligible families); (^) id. at (providing a nonexhaustive list of the different types of families eligible for the program); 42 U.S.C. (^) § 1437(a)(1)(A)-(B) (2000) (declaring the policy underly- ing the federal public housing programs is to address the shortage of decent and safe dwellings for low-income (^) families); see also Hann v. Housing Auth., 709 F. Supp. 605 (E.D. Pa. 1989) (holding that state public-housing authority did not have the statutory authority, based on a belief that cohabitation was "immoral," to define "family" to mean two or more persons "relat- ed by blood, marriage, or adoption" living together).
246 Family Law Quarterly, Volume 42, Number 2, Summer 2008
above, the Social Security system was amended in 1939 to provide
survivors' benefits for widows and their children, many envisioned that
this change would, over time, largely eliminate the need for means-tested
welfare. But changes in family structure produced all sorts of new poor,
single-parent families who obtain welfare benefits. Today these families
are mainly composed of never-married or divorced mothers and their
children.
On the one hand, therefore, the continued existence of the welfare sys-
tem suggests continued social support for family structures other than the
idealized two-parent family and unlucky widowed mothers. Yet, support should not be confused with embrace. These divorced and never-married mothers are helped for the sake of their children, and government has few
qualms against intrusive regulation of the lives of those (^) on the welfare
rolls. Three aspects of their behavior have attracted special attention: their
sexual conduct, their work outside the (^) home, and their eventual marriage (or (^) remarriage). Early on, the welfare system sought to enforce the norm that "proper" women do not have sex outside of marriage. Authorities monitored the
conduct of welfare recipients and threatened to cut off aid to "misbehav-
ing beneficiaries." 6 Moreover, it was well understood that if single moth-
ers on welfare had sexual relations, then some of them would have more
children, increasing the cost of the program. The likely cost increase was
undesired by those in power and hence to be discouraged. Besides, those
extra children would be born out of wedlock, and that was seen as highly
unfavorable for the children themselves. Finally, if single women could be
prevented from having sexual (^) relations while on welfare, this might
encourage them to marry, which was expected to have several additional
benefits for the woman, her children, and society at large.
Social Security Act of 1935. Social Security Act of 1935, ch. 531, tit. (^) IV, § 401, 49 Stat. 620, 627 (codified as amended at 42 U.S.C. §§ 601-619 (2000)).
- Due to changing ideologies about poverty, rising rates of divorce, and out-of-wedlock births, there was an explosion in "absent father" cases involving recipients who were divorced, separated, or never married. By 1993, about eighty-five percent of AFDC cases fell in (^) this category. Stephen D. Sugarman, Reforming Welfare Through Social Security, 26 U. MICH. J.L. REFORM 817, 826 (1993) [hereinafter Sugarman, (^) Reforming Welfare].
- Id. at 825. States were permitted to set moral requirements for eligibility for AFDC, which were enforced by social workers. In some states, giving birth to an "illegitimate" child was deemed to render the home "unsuitable" and was cause for denial of benefits. Id. at 827 n.70. Similarly, initially, states could deny benefits if the mother lived with a "man assuming the role of spouse." See Lewis v. Martin, 397 U.S. 552 (1970). See generally Joel F. Handler & Ellen J. (^) Hollingsworth, Institute for Research on Poverty, The Administration of Social Services in AFDC: The Views of Welfare Recipients 17-20 (1969) (^) (discussing a 1967 study revealing that about half of single-mother recipients reported having discussions with their caseworkers about (^) their relationships with men, dating habits, or marriage plans).
What Is a "Family"? 247
Starting during the 1960s, however, and coincident with the sexual
revolution in the United States, it became difficult to maintain a strong
policy of^ prying^ into^ the^ private^ sexual lives^ of^ women^ on^ welfare. The
use of midnight raids in which welfare officials searched for evidence of
a "man in the house" was^ roundly condemned^ as^ an^ inappropriate^ inva-
sion of privacy.
61 Moreover, it became clear that stripping the welfare
rolls of families with children born out of wedlock would have a vastly
disproportionate impact^ on^ African^ Americans^
62 -a politically difficult
strategy at the height of^ the^ Civil^ Rights^ Movement.^ Indeed,^ in^ the^ course
of the civil rights reforms of^ the^ 1960s,^ the^ number^ of^ African-American
single mothers on the welfare rolls exploded,^ as^ previously^ high^ legal
barriers (both formal and informal)^ long^ faced^ by^ racial^ minorities^ were
finally at least partially eliminated.^63
Nonetheless, even today, as a matter of social norms, low-income, sin-
gle motherhood is not viewed as an equally desirable family type^ as^ the
"ideal" family. 6 ' Rather, the mainstream view regards this is an unfortu-
nate family structure that will be tolerated and financially helped for the
sake of the children (at^ least^ so^ long^ as^ the^ mother properly^ behaves).^ The
- For a discussion of home inspections of welfare recipients, see generally^ BELL,^ supra note 57 (discussing early federal efforts to combat state efforts to impose unconstitutional con- ditions on their AFDC programs); Charles A. Reich, Midnight Welfare Searches and the^ Social Security Act, 72 YALE L.J. 1347 (1963) (discussing the constitutionality of unannounced inspec- tions by welfare officials); King v. Smith, 392 U.S. 309 (1968) (invalidating^ Alabama's^ "sub- stitute father" rule, which denied benefits to families with^ mothers^ who^ were^ cohabiting^ with men outside the bonds of marriage); Lewis v.^ Martin,^397 U.S.^552 (1970)^ (holding^ that,^ in^ the absence of proof of actual contribution or^ legal^ duty, the state,^ in^ computing^ AFDC^ payments, may not consider the income of a "man assuming role of spouse").
- Sugarman, Single-ParentFamilies, supra note 4, at 23 ("Between 1967 and^ 1997,^ the proportion of African-American children born outside of marriage skyrocketed from^ around two percent to nearly seventy percent.").
- See generally Anderson v. Burson, 400 F. Supp. 401 (N.D. Ga. 1968) (upholding^ the constitutionality of an "employable mother" regulation affecting eligibility of^ seasonal^ work- ers); see also Risa Kaufman, The Cultural Meaning of the "Welfare Queen:" Using State Constitutions to Challenge Child Exclusion Provisions, 23 N.Y.U. REV. L. & Soc. CHANGE 301, 307 (1997) (discussing the treatment and perceptions of black welfare mothers).
- The current federal welfare^ program,^ Temporary^ Assistance^ for^ Needy^ Families (TANF), promotes the^ two-parent household^ as^ the^ "ideal"^ family.^ Congress^ made^ the^ follow- ing findings: (1) that marriage is the foundation of^ a^ successful^ society;^ (2)^ that^ marriage^ is^ an essential institution of a successful society that promotes the interests of^ children;^ and^ (3)^ that promotion of responsible fatherhood and motherhood is^ integral^ to^ successful^ child-rearing^ and the well-being of children. Two of the stated purposes of the program are to^ prevent^ and^ reduce out-of-wedlock pregnancies and to encourage two-parent families. 42 U.S.C. § 601 (2000); see also Sara McLanahan et al., Fragile Families, Welfare Reform, and Marriage, WELFARE REFORM AND BEYOND: THE FUTURE OF THE SAFETY^ NET^ 152-59^ (Andrea^ Kane^ et^ al.^ eds.,^ 2002), [hereinafter McLanahan, Fragile Families] (discussing recent studies that show both children and adults benefit from marriage); MURRAY, supra note 21, at 124-34 (discussing "two indica- tors that almost everybody agrees are important evidence of problems with the family: illegiti- mate births and families headed by a single female").
What Is a "Family"? 249
As for working outside the home, starting in the 1970s and as a result
of altered social norms in society at large, political attitudes changed con-
cerning the employment (^) obligations of welfare mothers. Before that, the
general understanding was that these claimants would be stay-at-home
mothers, raising their children in parallel to married mothers whose hus-
bands went out to work.^69 The government, in effect, would be the "man."
But this outlook shifted, and over the next thirty (^) years increasingly tough
work requirements were imposed on (^) welfare claimants.^7 "
By the time PRWORA was enacted (^) in 1996, work requirements
seemed totally unremarkable. If so many middle class and professional
women were in the paid labor force,^71 how could society justify allowing
(requiring states to submit plans establishing goals and to take action to (^) prevent and reduce the incidence of out-of-wedlock (^) pregnancies); id. at § 403(a)(2)(B) (codified as amended at 42 U.S.C. § 603) (offering a $20 million bonus to states that decrease the number of illegitimate births by a certain amount). PRWORA also left intact the ability of states (^) to enact "family caps" to prohibit an increase in (^) benefits when welfare recipients have additional children. Since pas- sage of the Act, twenty-three states have decided (^) to continue to utilize caps already in place or to create new ones. Wendy Chavkin et al., Sex, Reproduction, and Welfare Reform, 7 GEO. J.
ON POVERTY L. & POL'Y 380, 381 (2000).
69. See generally BELL, supra note 57.
- For a discussion of welfare work requirements, (^) see generally LAWRENCE M. MEAD, BEYOND ENTITLEMENT: (^) THE SOCIAL OBLIGATIONS OF CITIZENSHIP (1986). In the mid-1960s, Congress began imposing work requirements (^) as a condition to receiving public assistance. In 1967, Congress created the Work Incentive Program (WIN), requiring mandatory participation in work programs, regardless of gender. Pub. L. No. 90-248, § 204, 81 Stat. (^) 884, 884- (repealed 1988). WIN Hl, created in 1971, added more conditions and restrictions. Pub. L. No. 92-223, §§ 3(b)(4)(A)-(F), § 433(a)-(b), (e)-(h), 85 Stat. (^) 802, 806-07 (1971) (codified at 42 U.S.C. §§ 633-45 (repealed 1988)). In 1981, Congress imposed even more demanding work requirements. Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, §§ 2301-2321, 95 Stat. 357, 843-60 (codified in scattered sections of 42 U.S.C. §§ 601-645 (2000)) (requiring work in public service jobs for the number of hours equal to the recipient's AFDC grant divid- ed by the minimum wage). In 1994, the Family Support Act created the Job Opportunities (^) and Basic Skills Training Program (JOBS), which required recipients to participate in a range of educational and work-related activities. Pub. L. No. 100-485, 102 Stat. 2342 (1988) (codified at 42 U.S.C. § 682 (1994) (repealed 1996)). In 1996, PRWORA established new requirements designed to encourage independence. Pub. L. No. 104-193, § 407, 110 Stat. 2105 (1996) (codified at 42 U.S.C. § 607) (setting mandatory work requirements ranging from twenty to thir- ty-five hours a week depending on composition of the family); id. at § 408(a)(7) (codified at 42 U.S.C. § 607) (setting a five-year time limit on receipt of benefits); id. at § 402(a)(1)(A)(ii) (codified at 42 U.S.C. § 602(a)(1)(A)(ii)) (requiring recipients (^) to start working within two years of beginning of receipt of benefits).
- The labor force participation rate of women has risen dramatically since 1970. From 1970 to 1999, the participation rate of women (age sixteen and older) increased from about
forty-three percent to sixty percent. U.S. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR,
WOMEN IN THE LABOR FORCE: A DATABOOK, Report 985 (2005). From 1975 to 2000, the rate of working mothers with children under age eighteen rose from forty-seven percent to seventy- three percent. Id. In 1996, when Congress passed PRWORA, (^) about sixty-three percent of women were employed. Id. Women have also made substantial inroads into higher paying occu- pations. In 2004, half of all management, (^) professional and related occupations were held by women. Id.
250 Family Law Quarterly,Volume 42, Number 2, Summer 2008
low-income women to remain at home living on the "dole?"
Conservatives suggested that welfare mothers were lazy women who sat
around watching TV, perhaps^ doing^ drugs^ and^ having^ sex.^ These^ critics
forcefully argued that these women should be working. The reality was
often very^ different^ from^ what^ this^ image implied.^ In fact,^ many^ welfare
claimants were^ actually working^ for^ money,^ at^ least^ part-time. (^72) These
women worked if for no other reason than because they could not reason- ably support their children^ and^ themselves^ on the^ meager^ funds provided
by government. But they often took black market, sometimes^ illegal^ and
often dangerous jobs, because they had to keep their earnings secret from the welfare office (even though this was a crime). Otherwise, their earned income would primarily have the effect of reducing their^ aid.^ Liberals were generally unwilling to admit^ that^ welfare^ claimants^ might^ be engaged in this sort of fraud; hence, they tended to portray these women as staying at home and devoting themselves to being the best mothers they could be under the circumstances. Now that work requirements are tougher,^7 3 many women on welfare find themselves financially no better off and sometimes worse off. They take officially recognized jobs at the government's insistence, but in turn they receive somewhat reduced aid-in^ contrast^ to^ their^ prior^ state^ of^ illic- itly combining^ aid^ with^ unreported^ earnings.^ In^ any^ event,^ it^ is^ now^ wide- ly accepted as appropriate to force these single mothers out of the home and into the job market since that is the situation in^ which^ so^ many^ other working-class (and^ even financially^ better^ off) mothers^ find^ themselves.
Ironically, this policy of coercing labor-force participation by welfare claimants still does not^ exist^ in^ the^ Social^ Security^ system.^ There,^ a younger widowed mother caring^ for^ children^ can^ claim^ benefits^ without
- See Kathryn Edin & Christopher Jencks,^ Reforming^ Welfare,^ in^ RETHINKING^ SOCIAL POLICY: RACE, POVERTY AND THE UNDERCLASS 204, 204-15 (Christopher Jencks^ ed.,^ 1992). Many welfare families cannot survive on welfare alone. While most^ single^ mothers supplement their welfare checks with work, many do not report^ it^ because^ it^ would reduce^ their^ benefit levels by almost the full amount of their earnings.
- PRWORA, Pub.^ L.^ No.^ 104-193,^110 Stat.^2105 (1996)^ (codified^ as^ amended^ at^42 U.S.C. §§ 601-619 (2000)). For a description of PRWORA's work^ requirements,^ see^ supra^ text accompanying note 69.
- By 2000, the welfare caseload declined by more than fifty percent. Sugarman,^ Single- Parent Families, supra note 4, at 35. One explanation for the decline is that it resulted from "the confluence of three major factors: welfare^ reform,^ a^ robust economy,^ and^ a^ federal system of programs that support work." Id. The timing of other trends-a leveling off of illegitimate births, a declining teen birth rate, and an increasing percentage of two-parent families- suggests factors other than or in addition to welfare reform also contributed. Brookings Inst., Welfare Reform: An Examination of Effects, BROOKINGS, Sept. 20, 2001, http://www.brookings. edu/testimony/2001/0920welfare haskins.aspx?media= 1 (testimony^ of^ Ron^ Haskins^ before the House Committee on Education and the Workforce, Subcommittee on 21st Century Competitiveness).
