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Why Marriage Isn't An Equal Partnership

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Conservatives may indeed be right -- same-sex marriage has the power to take marriage and spin it on its head. And that should be something all hetero husbands, wives and would-be spouses should celebrate.

"It never ceases to amaze me how many people will say to us, 'So, who's the woman and who's the man, in your marriage?'" a gay man says at the start of Deborah A. Widiss' paper, "Changing the Marriage Equation," published last month.

It's an odd question to ask a couple but a telling one, says the associate law professor at Indiana University's Maurer School of Law. It means that even in 2012, when couples marry with the desire to have an equal partnership, we still think of marriage in terms of a woman's role and a man's role. And for the most part, we not only think that way but act that way, otherwise there wouldn't be so many articles about working women complaining that their husbands don't do their part around the house or with the kids. Nor would it be assumed that wives should take the day off work to stay home with a sick child.

These are not conversations often heard in same-sex households, Widiss suggests. Same-sex couples typically do have more equitable partnerships when it comes to household and parenting responsibilities, making them role models for equality-seeking hetero couples.

If gays and lesbians can do that, why can't heteros?

"More than 30 years after explicit sex-based classifications in family, employment, and benefits law were held to violate the Constitution or statutory prohibitions on discrimination, the vast majority of different-sex couples still divide responsibilities along gendered lines," she notes. Clearly, we're unable to mentally free ourselves from the "Mad Men" model of marriage -- she cleans, cooks and caretakes, he brings home the paycheck -- even if we are physically doing the opposite.

But we're also dealing with laws that still encourage specialization within marriage into breadwinning and caregiving roles, she says. And, because of that, it could be that same-sex couples may decide to specialize along traditional gender lines when more states allow them to marry. Then we'd all be in the same mess together.

Widiss spoke with me about the findings:

Q: It seems almost silly to base laws on how much housework and childcare men do versus women. Why does it matter?

A: Families need someone to take care of children and housework. These days, about 70 percent of married women work outside the home. But studies consistently find that wives still spend much more time than their husbands doing domestic work, while men spend more time at paid jobs. If the marriage ends, judges have to decide how much that domestic work "counts" when dividing up property or determining whether to award alimony. Although in most states, caregiving is a factor that judges are instructed to consider, judges often characterize dropping out of the labor force or opting for a job with fewer hours as an individual "choice." Judges don't pay enough attention to the ways in which marriage law still encourages one spouse to take on primary breadwinning responsibility and the other spouse to take on caretaking responsibilities.

Q: Your paper indicates that if more states allow same-sex marriage, it's just as likely that gays and lesbians may specialize and follow gendered division of labor instead of maintaining their more equal partnerships. Why?

A: At one time, husbands were legally responsible to provide economically for their wives, and wives were legally responsible to provide domestic services to their husbands. Now, even though the law no longer specifies which spouse should stay home, it still rewards married couples who specialize into different roles. For example, under federal tax law, a married couple pays less in total taxes if one spouse works outside the house and the other spouse stays home. They get a "marriage bonus" relative to the amount of taxes they would pay if they were single. By contrast, if each spouse earns about the same amount, they often pay a "marriage penalty" relative to the amount they would pay if they were single. As same-sex couples marry -- and especially if the law changes so that their marriages are recognized under federal law -- I think you might see them begin to specialize more. I don't know whether they will. I'm hoping researchers will study that question in the future.

Q: If same-sex couples marry and then follow a more gendered division of labor, you indicate that "dismantling the law and benefits that flow from marriage itself" may be necessary. What might be the potential fallout?

A: I'm not necessarily advocating changing marriage law. I'm just suggesting that we should be more honest about the extent to which law still tends to encourage role division. If we as a society really want men and women to share responsibilities equally, then yes, it might make sense to think about reducing the extent to which marriage laws incentivize specialization. It would be equally important to think about how we could change employment laws and workplace norms so that it would be easier for men and women who want to balance work and family responsibilities to do so.

Q: You note that perhaps we shouldn't "idealize" marriage as an equal partnership and just accept specialization. But that specialization is what upsets many women and hurts them in the event of a divorce. In what way can divorce laws be tweaked to make a marital breakup fairer for all?

A: Divorce law could be changed to provide better protection for women (or men) who stay home or work fewer hours to take care of domestic responsibilities. In 2002, the American Law Institute, an influential group of lawyers, judges, and law professors, recommended that divorce law be changed to compensate caregivers for a "loss in earning capacity." There are other ways that property distribution or alimony could be restructured so that men and women's standard of living after divorce would be more equal. The key is recognizing that there is a disconnect in a legal structure that encourages specialization during marriage but then, upon divorce, often treats such specialization as simply an individual "choice" made by the caretaking spouse.

Q: Marriage encourages specialization, but some studies on cohabitation indicate that while it often is more equal than marriage, women still end up doing more household chores than men. What's going on?

A: It's not just marriage that encourages specialization. Gender norms do, too. So even without marriage, women living with male partners may feel pressure to conform to expectations -- either internal or external -- that they take on a greater share of household work.

Q: It isn't just women who face gender roles -- men do, too. So why do women tend to feel more slighted by them than men?

A: It's important to consider the pressures men feel to conform with gender roles. In fact, new studies show men feel increasing levels of stress as they try to balance home and work responsibilities. And men legitimately worry that they may be penalized at work if they ask to take a paternity leave or for other flexibility to meet children's needs. But women may feel more slighted by gender roles because "women's work" is not as respected as "men's work." Our society tends to assume that there's no great skill involved in taking care of a baby or cleaning a house. People who do caretaking work for pay (not coincidently, an almost entirely female workforce) are usually paid poorly.