RECONFIGURING SEX, GENDER, AND THE LAW OF MARRIAGE¹

Abstract

This article brings together legal, historical, and social science research to analyze how couples allocate income-producing and domestic responsibilities. It develops a framework-what I call the marriage equation-that shows how sex-based classifications, (non-sex-specific) substantive marriage law, and gender norms interrelate to shape these choices. Constitutional decisions in the 1970s ended legal distinctions between the duties of husbands and wives but left largely in place both gender norms and substantive rights within marriage, tax, and benefits law that encourage specialization into breadwinning and caregiving roles. By permitting disaggregation of the marriage equation, the new reality of same-sex marriage can serve as a natural experiment that should inform both study design and policy reform. Key Points for the Family Court Community:• This article shows that although marriage law no longer explicitly requires wives to provide domestic support and husbands to provide economic support, non-sex-specific aspects of the substantive law continue to encourage couples to specialize into breadwinning and caregiving rules.• Same-sex marriage can serve as a natural experiment to expose the extent to which substantive marriage law-as opposed to gender norms-may encourage couples to specialize into breadwinning and caregiving roles.• Research on same-sex marriage can help inform how best to achieve equality within all marriages and what is fair compensation for a dependent spouse in the event of a divorce.

The State of Gay

“…This correlation between equitable division of household duties among same-sex couples with concomitant higher satisfaction levels has been supported by studies of gay American couples as well (Gottleib, 2014;Widiss, 2012). Also noted in this research (Widiss, 2012), is the equal distribution of power in same-sex relationships regardless of who is the major economic provider, in contrast to most mixed-sex unions wherein those who earn the most money hold the most power in the relationship. Solomon et al (2005) and Parker-Pope (2010), suggest same-sex couples may serve as a model of equalized distribution of marital duties, thereby leading to greater satisfaction, more robust health, and reduced divorce rates among mixed-sex couples, as Brooks and Manza (2006) detail is true for other developed democracies.…”

“…Arguments against same-sex marriage historically included the presumption that gender norms in general would be negatively impacted, particularly as defined in traditional mixed-gender marriage (Widiss, 2012). Perceived threats to society-sanctioned norms defining man as the provider and women as the homemaker were viewed as damaging to children because they failed to provide gender-norm role models.…”

“…Perceived threats to society-sanctioned norms defining man as the provider and women as the homemaker were viewed as damaging to children because they failed to provide gender-norm role models. The tenacity with which these gender stereotypes were held evolved into one of the fundamental arguments for an end to sex discrimination as unconstitutional (Widiss, 2012), a key component in the arguments in support of the Rainbow Rulings.…”

“…As Widiss (2012) details, marriage law has traditionally been defined by gender-based classifications that subordinated women to men. The coverture doctrine, in force until the mid-19 th century, dictated that women lost all legal identity once married (Bailey, 2012).…”

“…Unable to earn pay from their work, own property, enter into contracts, or even be held responsible for their own criminal activity, women were required under law to provide household duties, sexual services, and childcare. The 1970s introduced some reforms such as the ability to retain their own names and receive alimony, yet married women were still legally prevented from certain jobs and from demanding equal pay (Widiss, 2012). Cumulatively, however, the Supreme Court decisions of the 1970s established that gender-based family law was unconstitutional, de facto establishing the foundation for major advances in sex discrimination law, and planting the seeds tha grew into the rationale for the Rainbow Rulings (Bailey, 2012;Widiss, 2012).…”