“The Family” in Social Security: Entrenched Norms and Prospects for Transformation

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63 Interestingly, in light of the convergence of family norms and ideals in the expression of the Social Security Act, the very terms of the Act still covered relatively few American workers by its very terms. One example is in the age required for receipt of benefits. In 1940, the year that benefits were first disbursed, life expectancy for women was 68.2 years and 60.8 years for men. Since benefits were only available to retirees over the age of 65, a large number of workers would have been precluded from ever receiving retirement pensions. Kingswood College Library, American Cultural History, The Twentieth Century, 1940 - 1949, http://kclibrary.nhmccd.edu/decade40.html (last visited Nov. 9, 2005).

64 When benefits were first disbursed in 1940, “only about 20 percent of older Americans were eligible to receive them.” Farrell, supra note 60 at 147.

65 Since farm and domestic laborers were sometimes housed and fed by their employers, their room and board was considered as in-kind income. Policymakers thought that it would “prove administratively impossible to collect payroll taxes from [these workers].” Moreover, “it was felt that farmers would object to being taxed for old age insurance protection for their employees.” Self-employed workers also fell outside the scope of the Act for similar administrative concerns. Although it may seem unfair today, excluding these workers from Social Security was consistent with other contemporaneous “laws regulating employment conditions.” Witte, supra note 16 at 153.

66 See e.g., Michael B. Katz, Race, Poverty & Welfare: DuBois’s Legacy for Policy, 568 Annals 111, 120 (2000) (explaining how Southern influence shaped Social Security legislation to exclude industries employing primarily African-Americans); Peggie R. Smith, Regulating Paid Household work: Class Gender, Race, and Agendas of Reform, 48 Am. U.L. Rev. 851, 879 (1999) (noting the migration of newly emancipated African-Americans to Northern homes for work as paid domestic servants); Houghton-Mifflin, Reader’s Companion to U.S. Women’s History – Social Security Act, http://college.hmco.com/history/readerscomp/women/html/wm_034800_socialsecuri.htm (noting that by excluding agricultural and domestic workers the 1935 Social Security Act made three-fifths of all African-Americans ineligible for Social Security benefits) (last visited Nov. 16, 2005).

67 See Witte, supra note 16 at 152 (mentioning that the Morgenthau Amendment to the 1935 Act included a principle that gave “relatively larger benefits to workers receiving low wages). Today this favorable calculation for low-wage workers persists since 90% of the first $627 of a worker’s average monthly earnings is counted towards the retirement benefit but only 32% of the earnings between $627 and $3,779 and only 15% of earnings over $3,779 count towards a monthly retirement benefit. Your Retirement Benefit: How it is Figured, SSA Publication No. 05-10070, available at http://www.ssa.gov/pubs/10070.html#estimate (last visited Nov. 12, 2005). Maximum earnings caps also apply which limit the amount of Social Security benefits that wealthy workers can receive. Id.

68 Berkowitz, supra note 8 at 94.

69 “During the Great Depression marriage rates plummeted, as it became economically difficult for young people to form new households. The marriage rate dropped almost 13 percent between 1930 and 1932, and by the end of the decade the average age at marriage had risen from 24.3 to 26.7 for men and from 21.3 to 23.3 for women.” Houghton Mifflin, The Reader’s Companion to American History – Marriage, http://college.hmco.com/history/readerscomp/rcah/html/ah_056600_marriage.htm (last visited Nov. 9, 2005).

70 Farrell, supra note 60 at 121.

71 Id. at 108.

72 Id. at 44.

73 Loyola University of New Orleans, Mickey Moran, 1930s, America - Feminist Void?
The status of the Equal Rights Movement during the Great Depression
, http://www.loyno.edu/history/journal/1988-9/moran.htm (last visited Nov. 9, 2005).

74 Berkowitz, supra note 8 at xvii.

75 Id. at 6. In addition to failing to adequately provide for people with extremely sporadic or low-wage records, Social Security also requires that recipients are citizens or legal permanent residents of the United States. See Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Certainly undocumented workers whose paychecks are not taxed would not qualify for Social Security and these rules have implications for immigrant families generally. However, the United States has recognized the problems that international workers face when they pay Social Security taxes on their work in the US and in their home country. The United States has entered into agreements with several (primarily European countries) to avoid the problem of dual coverage and to assign Social Security coverage to the country where the worker has the greatest attachment. Social Security Online, U.S. International Social Security Agreements, http://www.ssa.gov/international/agreements_overview.html (last visited, Nov. 12, 2005).

76 Disability Benefits or SSDI, was created in 1956 and SSI was enacted in 1972 but brought under the control of the Social Security Administration in 1974. SSI is an extremely important program for poor elderly couples and individuals and SSDI assists disabled Americans of all ages. See Berkowitz, supra note 8 at 133; Martha Derthick, Policymaking for Social Security 431-33 (Brookings Inst. Press 1979).

77 Blumberg, supra note 53 at 243; Derthick, supra note 76 at 260-61.

78 Blumberg, supra note 53 at 257.

79 Id. n.108.

80 Since the 1980s divorce rates in America have actually declined somewhat. In fact, the 50% figure was always exaggerated. See, e.g., Ira M. Ellman, Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, 34 Fam. L.Q. 1, 7-9 (2000) (citing evidence that the divorce rates declined nationwide by about 15% from 1981 to 2000); e-mail correspondence with Ira Ellman, Nov. 21, 2005 (on file with author).

81 Farrell, supra note 60 at 94 (citing 1997 Census figures).

82 See, e.g., Judith Areen, Family Law Cases & Materials 761 (Aspen, 4th Ed. 1999) (citing statistics to show that wives experience, on average, a 30% decline in living standard after divorce but husbands experience a 10% increase, note that these figures about the economic situation of women after divorce may ameliorate over time); Joan Williams, Unbending Gender: Why Family & Work Conflict & What to Do About It 3, 8, 57, 115 (Oxford Univ. Press 2001)(connecting the fact that women get custody of children in 90% of divorces, are typically cut off from the majority of the family’s wages, and experience downward mobility after divorce to the extent that 40% of divorced mothers live in poverty).

83 Blumberg, supra note 53 at 244.

84 In addition to expanding coverage to include divorced women, the 1950 Amendments dramatically extended coverage to the self-employed and farm and domestic workers. The few employee classes that remained uncovered after 1950 were religious workers and certain professional groups (lawyers, doctors, and engineers). Derthick, supra note 76 at 430. Four years later, in 1954 Amendments brought more self-employed professional groups under coverage and extended Social Security coverage on a voluntary basis to religious workers. Id. at 431. By 1965, doctors, lawyers, and other miscellaneous professional groups were covered under the Act and today, only very few workers escape Social Security’s wide-ranging coverage. Id.

85 Blumberg, supra note 53 at 241, now codified at 42 USCSC §402(g)(2005), “Mother’s and Father’s insurance benefits.”

86 Id.

87 Id., 42 U.S.C. §402(b)(1)

88 Id. But note that it appears that the ten-year marriage rule does not apply when a widowed and divorced spouse is caring for a child who is under 16 or disabled and is the former spouse’s natural or legally adopted child who is also receiving Social Security benefits. Divorce Headquarters, Financial, http://www.divorcehq.com/financial.html (last visited Nov. 9, 2005).

89 Blumberg, supra note 53 at 241-42; and see 42 U.S.C.S. §402(g), “Mother’s and father’s insurance benefits.”

90 Currently, it seems that the only provision within Social Security that specifically addresses the needs of domestic violence survivors is a program through which, after a victim applies in person and submits evidence of abuse, qualified survivors can obtain new Social Security numbers. Social Security Administration, New Numbers for Domestic Violence Victims 1, available at http://www.ssa.gov/pubs/10093.pdf (last visited Nov. 9, 2005).

91 Goodwin Liu, Social Security and the Treatment of Marriage: Spousal Benefits, Earnings Sharing, and the Challenge of Reform, 1999 Wis. L. Rev. 1, 21 (1999).

92 Margaret M. Mahoney, Stepfamilies in the Federal Law, 48 U. Pitt. L. Rev. 491, 492, 496 n.18 (1987).

93 See 42 U.S.C.§402(d)(4) (2005), “A child shall be deemed dependent upon his stepfather or stepmother…if, at such time, the child was receiving at least one-half of his support from such stepfather or stepmother.” The option for proving dependency by “living with” a stepparent was eliminated in 1996 (P.L. 104-121) so now all stepchildren must show that they received 50% of their support or more from the stepparent upon whose record they are claiming benefits. Social Security Bulletin, Program Legislation Enacted in Early 1996, http://www.findarticles.com/p/articles/mi_m6524/is_n2_v59/ai_18747330 (last visited Nov. 14, 2005). See also Social Security Administration, Who Can Get Benefits? http://www.socialsecurity.gov/kids/parent3.htm (last visited Nov. 17, 2005).

94 Id. at 493, n.8; 42 U.S.C. §416(e)(2) (1982).

95 Id. at 497; 20 C.F.R. §404.357 (1999)

96 Id. at 497. The dependency requirement was only enacted in 1996. In 1996, Congress also enacted a law that requires that a stepchild’s benefits end if the insured stepparent divorces the child’s parent after June 30, 1996. Social Security Online, Kids and Families – Who Can Get Benefits? http://www.socialsecurity.gov/kids/parent3.htm. (last visited Nov. 9, 2005).

97 42 U.S.C. §402(d)(3)(2005).

98 Id. at 497-98; 42 U.S.C.S. §402(d)(4)(2005).

99 Id. at 495.

100 Id. at 498.

101 Id. at 499. While it is true that a stepchild could potentially receive benefits on their natural parent’s account, step kids would be forced to wait until their natural parent’s death, retirement, or onset of disability instead of receiving benefits when their stepparent qualified – presumably at a point of need for the family.

102 Id. at 499-500.

103 See §§ 202(c)(3)(A), 209(k) (recognizing eligibility of adopted children for children’s benefits). The original text of the 1939 law is available at Public-No. 379-76th Congress 5-6, http://www.ssa.gov/history/pdf/1939Act.pdf (last visited Nov. 12, 2005). The legislative definition of “child” for Social Security purposes is now codified at 42 USCS §416(e)(2005).

104 Mahoney, supra note 92 at 497; 42 USCS §402(d)(3)(2005) (the support requirement doses not apply to adopted children).

105 This heightened scrutiny does not apply only to stepparent relationships. Presumably, in order to prevent fraud, any person who becomes a parent by adoption or marriage after receiving Social Security benefits is subject to this same scrutiny.

106 See 42 U.S.C.S. §402(d)(8) (2005).

107 See e.g., Brehm v. Harris, 619 F.2d 1016 (3d Cir. 1980) (denying benefits upon holding that “after adopted” children are not a class deserving more than rational basis review); Rodriguez v. Sec’y of Health, Educ. & Welfare, 644 F.2d 918 (1st Cir. 1981) (affirming a statutory prescription that treated adopted children who are also natural children or stepchildren of their adoptive parents more favorably than those who are not); Stanton v. Weinberger, 502 F.2d 315 (10th Cir. 1974) (denying benefits to a child who was equitably adopted after her adoptive parent retired).

108 Paul Brest et al., Processes of Constitutional Decisionmaking: Cases & Materials 985 (Aspen Law & Business, 4th ed. 2000).

109 In Frontiero v. Richardson, 411 U.S. 677, 688 (1973) the Court held that “like classifications based upon race, alienage, or national origin” classifications “based upon [the immutable characteristic of sex]…must…be subjected to [a] stricter standard of review.” Specifically, in Frontiero, the Court struck down the requirement that female members of the Air Force prove dependency of their husbands in order to get an increased living allowance and health benefits for their spouses. Id. at 678-79. In contrast to this requirement for servicewomen, the economic dependency of the wives of servicemen was presumed. Id. at 678. The Court overturned this statute because the differential treatment was found to serve no purpose other than “administrative convenience.” Id. at 690. Later cases arrived at the constitutional standard of “intermediate scrutiny” for situations involving potential equal protection violations on the basis of gender.

110 See Mary E. Becker, Obscuring the Struggle: Sex Discrimination, Social Security, and Stone, Seidman, Sunstein & Tushnet’s Constitutional Law, 89 Colum. L. Rev. 264, 265-66 (1989).

111 420 U.S. 636, 637-38 (1975).

112 Id. at 639.

113 Id.

114 Id.

115 Id. at 643.

116 Id. at 643, 645.

117 Id. at 648-49 and see also the discussion about supporting parents at 648-53.

118 Id. at 648.

119 430 U.S. 199, 201-02 (1976). See also discussion of this case in Brest supra note 108 at 1008-10.

120 42 U.S.C. §402(c)-(e); Blumberg, supra note 53 at 241.

121 430 U.S. at 201; 42 U.S.C. §402(f)(1)(1970 ed. and Supp. V).

122 Becker, supra note 110 at 273; Goldfarb, 430 U.S. at 203. Today, Social Security has expanded to cover most federal and state government workers. The Social Security Administration has also adopted “pension offset” rules, which can reduce the amount of a “dually entitled” worker’s spousal or survivor’s Social Security benefit by a fraction of that worker’s non-Social Security pension. See 42 U.S.C. §402(k)(5)(2005); Windfall Elimination Provision, SSA Publication No. 05-10045 available at http://www.ssa.gov/pubs/10045.pdf (last visited Nov. 16, 2005); Government Pension Offset, SSA Publication No. 05-10007 available at http://www.ssa.gov/pubs/10007.pdf (last visited Nov. 16, 2005).

123 Id. at 273 n.47 (noting that today virtually all “double dipping” is prohibited though it was initially permitted to give female federal employees access to their husband’s Social Security benefits, which were often larger than their personal federal pensions, without forfeiting access to their individual pension benefits).

124 430 U.S. at 210-11.

125 “Mrs. Goldfarb was entitled to the dignity of knowing that her social security tax would contribute to their joint welfare when the couple or one of them retired and to her husband’s welfare should she predecease him.” Id. at 204.

126 Id. at 206.

127 430 U.S. 313, 317 (1977)(citing Goldfarb, 430 U.S. at 209).

128 Id. at 318-19.

129 Id. at 314-16; 42 U.S.C. §415 (2005).

130 Id. at 316.

131 Id. at 320.

132 Goldfarb, 430 U.S. at 209; Weinberger, 420 U.S. at 648-49.

133 Goldfarb, 430 U.S. at 211.

134 Becker, supra note 110 at 267-68. Becker makes this claim about the ways in which Social Security disadvantages women with reference primarily to the fact that homemaking work (and all work performed outside formal work structures) is largely performed by women and is not covered under Social Security. Id. at 269, Becker also notes that since women’s wages are typically lower than men’s wages, by linking “life-time wages [to] old age security” the system “inevitably creates a better social security system for men than women.” Id. at 279-80. While Becker does note the fact that women are the primary recipients of family benefits, she questions the true advantage that this provides to women because claims as a dependent are “smaller and more contingent… than worker’s claims.” Id. at 281. Becker’s concerns are significant but it is difficult to determine whether or not Social Security, on the whole, helps or hurts women. Perhaps the problem with persistent gender inequity in Social Security stems not so much the structure of the Act, but the broader structures of societal gender inequity.

135 See, e.g., id. at 282; see infra note 83.

136 See text of original 1939 amendments §402(c)(3) available at Public-No. 379-76th Congress 5-6, http://www.ssa.gov/history/pdf/1939Act.pdf (last visited Nov. 16, 2005).

137 417 U.S. 628 (1974).

138 Id. at 630.

139 Id. at 631.

140 Id.

141 Id.

142 Id. referring to Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972).

143 Id. at 631-38.

144 Id. at 633.

145 443 U.S. 282 (1979)

146 Id. at 287.

147 Id. at 288.

148 Id. at 289.

149 Id. at 293.

150 This scenario is roughly based on a combination of Goodwin Liu’s introductory hypothetical in Social Security and the Treatment of Marriage supra note 91 at 1 and Dorothy A. Brown’s hypo in Social Security and Marriage in Black and White infra note 158 at 119.

151 Cornell Employment and Family Careers Institute, Facts about the Demographics of Working Families, www.lifecourse.cornell.edu/archives/factsht/fsfeb99.pdf (last visited Nov. 12, 2005).

152 Id.

153 Id., see generally Linda J. Waite & Mark Nielsen, The Rise of the Dual Earner Family, 1963-1997, in Working Families: The Transformation of the American Home 27-41 (Rosanna Hertz & Nancy L. Marshall eds., Univ. of Cal. Press 2001).

154 Berkowitz, supra note 8 at 9-10.

155 Liu supra note 91 at 12.

156 Subject to disqualifications due to divorce.

157 42 U.S.C. §402(b)(2)(2005).

158 Dorothy A. Brown, Social Security and Marriage in Black and White, 65 Ohio St. L.J. 111 116-19 (2004).

159 Id. at 119. In fact, any spouse whose contribution to the household income “reaches slightly over 20%” will receive no spousal benefit under the “whichever is greater rule.” Id. at 118.

160 Liu supra note 91 at 13.

161 Id. at 15; 42 U.S.C. §402(e)(2)(A)(2005)

162 Liu, supra note 91 at 16 citing 42 U.S.C. §§402(e)(2)(A), (f)(3)(A) (2005). Under this rule spouses like Gina, whose benefit is equivalent to her spouse’s, will receive solely their own benefit at death.

163 Brown, supra note 158 at 121.

164 Liu, supra note 91 at 21.

165 Id. at 12.

166 Id. The same is true for recipients of survivors’ benefits since wives often earn less than their husbands and tend to outlive their spouses as well. Id. at 17.
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