The Good Society 11.3 (2002) 68-73
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From Welfare to Wedlock:
Marriage Promotion and Poor Mothers' Inequality
For the past several years, marriage has figured prominently in debates about welfare. The idea of government as dating service or matchmaker doesn't seem to resonate widely with the public, 1 yet the idea that welfare policy should encourage or pressure poor single mothers into marriages nevertheless has bewitched policymakers of all political stripes. Four of the five welfare reauthorization bills that either have been introduced in Congress or are about to be include marriage provisions. And that's just the Democratic bills.
The seeming irresistibility of the call to marry poor mothers off of welfare is patent evidence of the precariousness of both feminism and democracy. Evidence of a dangerous assault on the rights of unmarried mothers who need welfare, efforts to use income policy to promote marriage directly contradict the intimate decisional rights that extended late twentieth century democratization into the personal sphere.
It was Loving v. Virginia—the famous anti-miscegenation case decided in 1967—that definitively established the significance of intimate associational liberty to our equality as citizens. Asserting the national citizenship rights of individuals against race-based state laws restricting marital freedom, the Supreme Court in Loving shifted the axis of marital decision-making from government to adult individuals—at least for heterosexuals. According to Nancy Cott's story of the public functions of marriage before Loving, laws governing access to legally valid marriage, relationships within marriage, as well as the status of marital bonds accomplished government's cultural, moral, eugenic, racial, and patriarchal regulation of the citizenry. With Loving, however, government's power to police and to stratify the adult citizenry by conferring marital status on some intimate partnerships while withholding it from others declined, though only for heterosexuals.
Although Loving most importantly established the right to marry a partner of one's (heterosexual) choosing regardless of race, the decision also incorporated the right not to marry as a core element of the fundamental right at stake in the case. 2 Soon after Loving, the Court applied heightened constitutional protection to the right to be not-married when it held that the right to dissolve a marriage could not be conditioned on the ability to pay court costs and related fees 3 and when it ruled that the right to receive welfare benefits could not be limited to families in which parents were "ceremonially married." 4 Both cases involved welfare recipients, so both decisions explicitly extended fundamental intimate associational rights across the divides of class and poverty.
Loving was first and foremost a decision against racial regulation of intimacy, demography, and citizenship. But especially in noticing that the right to marry includes the right not to, Loving and its progeny carried special significance for women. Intimate associational liberty implies a collateral right to maintain an independent household even if outside patriarchal, marital norms. It establishes a right to exit from perhaps unhappy, perhaps violent, marital relationships. And it disentangles reproductive choices from the marital circumstances in which they are made. We may mostly think of reproductive liberty in terms of the right not to bear children; and we may mostly think of marital freedom in terms of the right to get married. But Loving and related decisions that democratized personhood established also that we can bear children and not be married and—because each right is fundamental—we can do both at the same time.
Yet, despite judicial signals that the choice to not marry or to unmarry were among the intimate associational liberties at the core of democratic personhood, government continues to treat marriage as a necessary condition of worthy adult citizenship. Indeed, in 1996 Congress enacted two new laws deploying marriage to stratify citizenship. One of the new laws, the Defense of Marriage Act, stringently limits the rights and benefits of intimate association by defining marriage as a union between "one man and one woman." The other law, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), injures or disables...