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



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Id. at 14.

168 Brown, supra note 158 at 111, 129-30.

169 Id. at 124.

170 “In 1980, for example, well over half of all black births occurred outside of marriage. Most black children lived in one-parent families.” Berkowitz, supra note 8 at 8, 142. “The federal Center for Disease Control and Prevention reports that by the age of 30, 81 percent of white women and 77 percent of Hispanics and Asians will marry, but only 52 percent of black women will do so.” Andrew Herrmann, Marriage rate low in the black community, Chicago Sun-Times, June 9, 2003, at 8.

171 Kijakaze, supra note 2 at 226.

172 Id. and see Kilolo Kijakaze, Low-Wage Earners: Options for Improving Their Retirement Income, in The Future of Social Insurance: Incremental Action or Fundamental Reform? 44-46 (Peter Edelman et al. eds., Brookings Inst. Press 2002)(discussing trends among occupations and earnings of African-American and Latino workers which indicate that the median earnings for people of color are significantly lower than for White workers). Unfortunately, none of these studies mentions Asian workers.

173 Kijakaze, supra note 2 at 227 (noting that while 12 percent of the labor market is comprised of African-Americans, 19 percent of female workers who received disability benefits in 1997 were African-American women).

174 Id.

175 Kijakaze, “Improving Income” supra note 172 at 47 – 48.

176 This figure is almost certainly an undercount since the census only addressed couples who were living together and who chose to identify their sexual orientation. Additionally, the 2000 census did not include space for individuals to identify as transgender or bisexual so the numbers may have also missed a significant portion of the Gay, Lesbian, Bisexual, and Transgender community. Margie Mason, Census Figures on Same-Sex Couples (Aug. 8, 2001), http://speakout.com/activism/apstories/10044-1.html (last visited Nov. 12, 2005).

177 GLTBQ – An Encyclopedia of Gay, Lesbian, Transgender, Bisexual and Queer Culture, Census 2000: http://www.glbtq.com/social-sciences/census_2000.html (last visited Nov. 12, 2005).

178 Robin Fields, “Married with Children” Still Fading as a Model, Los Angeles Times, Aug. 20, 2001, at A1 available at http://www.contemporaryfamilies.org/public/articles/change39.htm (last visited Nov. 12, 2005).

179 E-mail correspondence with Ira Ellman, Nov. 21, 2005 (on file with author).

180 Robin Fields, They're Older but Not Old-Fashioned About Love and Marriage, Los Angeles Times, Aug. 23, 2001, at pt. 5, pg. 1, available at http://www.contemporaryfamilies.org/public/articles/change52.htm (last visited Nov. 12, 2005). Also note that California’s domestic partner laws explicitly contemplate these decisions by extending domestic partner benefits if one or both members of an opposite-sex couple “meet the eligibility criteria… for [Social Security] old-age insurance benefits” or if “one or both of the [partners are] over the age of 62.” Cal. Fam. Code §297(b)(5)(B)(2005).

181 Jonathan Barry Forman, Making Social Security Work for Women and Men, 16 N.Y.L. Sch. J. Hum. Rts 359, 371 (1999).

182 For years a spouse worked outside of marriage (either prior to or after marriage) those earnings would factor separately into their individual benefits account. Again, this would work in the same manner as the community property system wherein property brought into the marriage by one spouse is considered the separate property of that spouse.

183 Liu, supra note 91 at 26.

184 Blumberg, supra note 53 at 288.

185 Another change that might benefit domestic violence survivors within the confines of the current system would be development of a test whereby a divorced spouse could prove that abuse was the reason for the early end to the marriage and then claim benefits as though the marriage had lasted for 10 years. This proposal would increase the amount of individualized determinations that the Social Security Administration must make each year and would probably increase the litigation traffic over Social Security in the courts. On the other hand, fear of retaliation and the desire to fully terminate any connection with a batterer might cut against much use of this provision. Whether or not concerns about administration proved warranted, other busy administrative departments already make these types of determinations (i.e., the IRS reviews Innocent Spouse petitions to be relieved from income tax underpayment penalties) and the standard for requesting relief as a domestic violence survivor could be modeled on such programs. For information on “Innocent Spouse Tax Relief” see Innocent Spouse Tax Relief, www.irs.gov/pub/irs-pdf/f12507.pdf (last visited Nov. 9, 2005). Additionally, the Social Security Administration already reviews applications for evidence of domestic violence from survivors who wish to change their Social Security Numbers. See note 90.

186 Karen C. Burke & Grayson M.P. McCouch, Women, Fairness, and Social Security, 82 Iowa L. Rev. 1209, 1232-33 (1997).

187 Consider the fact that women typically perform more household work (their “second shift”) than men even when both partners in a heterosexual relationship work outside the home. See generally, Arlie Hochschild, The Second Shift: Working Parents and the Revolution at Home (Penguin, 2003).

188 See Liu supra note 91 at 37-38.

189 Id. at 30-32.

190 Id. at 40.

191 Id. at 41, citing Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979). On the other hand, state law, even in common law marital property states, allows for earnings sharing when dividing private pensions. See e-mail correspondence with Ira Ellman, Nov. 21, 2005 (on file with author).

192 Liu, supra note 91 at 43.

193 Id. at 63.

194 See generally, Nancy C. Staudt, Taxing Housework, 84 Geo. L.J. 1571 (1996).

195 See id. at 47-58 (discussing the intricacies of these proposals).

196 Derthick, supra note 76 at 262.

197 Id.

198 Id. at 263.

199 The idea is to combine the incomes in a dual earner family and, using that total, add in the 50% spousal benefit so that the couple receives retirement benefits equivalent to what a “traditional” family with the exact same earnings receives under the current law. With the death of one spouse, this system could also work to ensure that a surviving spouse in a dual-earner couple receives what would be equivalent to the 100% individual benefit in a (financially equivalent) single-earner family.

200 Under partial privatization people could then invest a portion of their individual accounts in the stock market. For a summary of the debate surrounding the privatization of Social Security see Wikipedia, Social Security Debate (United States): http://en.wikipedia.org/wiki/Social_Security_debate_%28United_States%29 (last visited Nov. 12, 2005).

201 That lack of attention led me to conclude that the vision of “the family” under a privatized system is somewhat “unarticulated.”

202 C. Eugene Steuerle, Symposium, Principles of Equity and Spouses' and Survivors' Benefits, 16 N.Y.L. Sch. J. Hum. Rts. 217, 224 (1999).

203 Kijakaze, supra note 2 at 229-30. See also notes 67 and 106 and accompanying text for reasons why low-wage workers receive sub-par Social Security coverage.

204 Given trends in federal law and the nationwide drive to preserve traditional marriage, it is unlikely that the discrimination against same-sex marriages will end anytime soon. One major obstacle is the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, excluding same-sex couples from the definition. DOMA also permits states to refuse to recognize marriages from other states so that no state would be forced to extend rights to same-sex couples married in another state. Because DOMA is a federal law, even if a state sanctions same-sex marriage, federal benefits, like Social Security, will not extend to cover same-sex couples. See Liz Seaton, The Debate Over the Denial of Marriage Rights and Benefits to Same-Sex Couples and Their Children, 4 Margins 127, 144-46 (2004); Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996); 28 U.S.C. §1738C (2005)(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”); 1 U.S.C. §7 (2005)(defining marriage as between a man and a woman).

205 Weinberger, 420 U.S. at 643.

206 See 7 U.S.C.§2012 (2005). Note that Food Stamps and the Federal Supplemental Nutrition Program for Women, Infants, and Children (WIC) still make use of family presumptions in eligibility determinations.

207 Food Stamps recipients cannot use food stamps benefits to purchase prepared foods or even essential household items, like soap or toilet paper.

208 See e.g., the fourth purpose of the Personal Responsibility, Work, and Family Promotion Act of 2003, H.R. 4, 108th Cong. (1st Sess. 2003); Christine Heath, Marriage Promotion Debate Tied to Welfare, Washington Times, June 28, 2004 available at http://washingtontimes.com/upi-breaking/20040628-04390-9224r.htm (last visited January 1, 2006); Katherine Boo, The Marriage Cure: Is Wedlock Really a Way Out of Poverty? The New Yorker, August 18, 2003 at 105.

209 Rebecca M. Blank, Policy Watch: The 1996 Welfare Reform, http://www.northwestern.edu/ipr/publications/nupr/nuprv02n1/blank2.html (last visited Nov. 12, 2005).

210 National Center for Children in Poverty, State Policy Choices: Child Support, http://www.nccp.org/pub_csi04.html (last visited Nov. 12, 2005)(noting that many families receiving TANF “benefit little, if any, from the child support collected on their behalf because states may opt to retain the money as reimbursement for TANF benefits”).

211 Also note that wives of insured disabled or retired workers are given the same preferential options to collect caretaker’s benefits as widowed recipients. See Sugarman, Reforming Welfare, supra note 62 at 819.

212 For people receiving Social Security caretakers’ benefits, the impact earnings have on benefits varies based on the amount earned (i.e., low-wage workers can retain more of their Social Security benefit than beneficiaries who are earning more substantial wages). How Work Affects Your Benefits, SSA Publication No. 05-10069 at *4 available at http://www.ssa.gov/pubs/10069.pdf (last visited Nov. 12, 2005). In general, for parents under retirement age, $1 in benefits is deducted for every $2 in earnings above an annual limit of $12,000 (in 2005). What You Need to Know When you Get Retirement or Survivors Benefits, SSA Publication No. 05-10007 at *13 available at http://www.ssa.gov/pubs/10077.pdf (last visited Nov. 12, 2005). While income disregards have improved after the switch from AFDC to TANF for women on welfare, even under California’s liberal standards only the first $225 of earned income is fully disregarded with 50 cents for every dollar earned above that threshold level counting against the grant. Cal. Wel. & Inst. Code §11451.5 (2005).

213 Berkowitz, supra note 8 at 9-10

214 Thanks to Professor Sugarman for providing this interesting suggestion. I have adapted his idea somewhat but it still forms the basis for this proposal.

215 Note that the limit in Boles that refused to extend benefits to an unmarried mother of an illegitimate child who was not living with the insured parent would persist. What to do with the claim of a child, like Norman Boles, who was also not living with his insured parent, would be a closer question. This might be resolved in favor of eligibility despite the lack of a shared household because of the presumed obligation to pay child support.

216


217 Boles, 443 U.S. at 289.

218 Statistics on earnings discrepancies in same-sex couples were unavailable. However, assuming the wage gap is gendered or results from traditional gender norms, same-sex couples are also less likely to consist of primary and secondary earning partners.

219





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