Rethinking tax priorities: Marriage neutrality, children, and contemporary families

University of Cincinnati Law Review

Volumn 78, Issue 4, 2010, Pages 1409-1435

  Puckett, James M ^a  

^a UNIVERSITY OF ALABAMA SCHOOL OF LAW   (United States)

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EID: 77950814854     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (237)

1. In his classic monograph on the income tax, Henry Simons argued that expenditures on children are consumption and should not affect income tax liability.
2. See HENRY C. SIMONS, PERSONAL INCOME TAXATION 140 (1938);
3. see also Lawrence Zelenak, Children and the Income Tax, 49 TAX L. REV. 349, 359-61 (1994) ("Whatever may be said in theory for the view of children as consumption, there is no political or popular support in the United States today for an income tax generally treating children as just another consumption choice, irrelevant to the determination of tax liability.");
4. Boris I. Bittker, Federal Income Taxation and the Family, 27 STAN. L. REV. 1389, 1448 (1975) ("No one but a tax theorist, it might be asserted, could fail to see the difference [between supporting children and maintaining a yacht].")
5. Married taxpayers generally may file either jointly or separately.
6. See I.R.C. § 1(a) (2006) (imposing tax rate schedule for married taxpayers filing jointly);
7. id. § 1(d) (imposing tax rate schedule for married taxpayers filing separately);
8. id. § 6013 (providing requirements for the filing of a joint return). Married taxpayers, however, generally will not save tax by filing separately except in unusual circumstances.
9. See Lawrence Zelenak, Marriage and the Income Tax, 67 S. CAL. L. REV. 339, 339 n.l (1994) (noting that separate returns can reduce the percentage floor on deductions determined by reference to adjusted gross income, but that advantages may be more than offset by higher rates).
10. See I.R.C. § 1(b).
11. See I.R.C. § 1(c). It is important to consider the treatment of both unmarried couples and single individuals.
12. See Lily Kahng, One is the Loneliest Number: The Single Taxpayer in a Joint Return World, 61 HASTINGS L.J. 651, 656-57 (2010) (coining the terms "unmarried couple's penalty," "unmarried couple's bonus," and "single person's penalty").
13. See I.R.C. § 1(a)-(d) (imposing tax on married individuals filing jointly, heads of household, unmarried individuals, and married individuals filing separately).
14. See I.R.C. § 63(c)(2).
15. See Lawrence Zelenak, Doing Something About Marriage Penalties: A Guide for the Perplexed, 54 TAX L. REV. 1, 22 (2000) (noting that marriage penalties from phaseouts can be "quite significant").
16. See CONG. BUDGET OFFICE, FOR BETTER OR FOR WORSE: MARRIAGE AND THE FEDERAL INCOME TAX xiv (1997). At low incomes, the standard deduction and Earned Income Tax Credit (EITC) are most significant, while at high incomes the rate schedules and phaseout provisions are most significant.
17. In addition to the income tax stakes, other important tax rules are affected by family relationships. For example, gifts among married taxpayers are generally exempt from estate and gift tax.
18. See I.R.C. § 2523(a). Social security contributions are calculated on a separate basis for all taxpayers, but social security benefits are calculated on a partially combined basis for married taxpayers.
19. See Edward J. McCaffery, Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code, 40 UCLA L. REV. 983,997 (1993).
20. See Zelenak, supra note 2, at 341 ("The more progressive the rate structure, the more significant the tax effects of joint returns. Effects that may have been tolerable under the low rates of the 1986 Tax Reform Act may not be tolerable under the 36% and 39.6% tax rates introduced by the Omnibus Budget Reconciliation Act of 1993."). Our current rate structure is somewhat progressive but relatively flat by historical standards.
21. See JOEL SLEMROD & JON BAKUA, TAXING OURSELVES: A CITIZEN'S GUIDE TO THE DEBATE OVER TAXES 18-21 (4th ed. 2008) (summarizing the history of the federal income tax system and charting top income tax rates). Rate cuts enacted under the Bush Administration are currently scheduled to sunset at the end of 2010. Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, § 901, 115 Stat. 38, 150 (codified as amended at I.R.C. § 1);
22. Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub. L. No. 108-27, §§ 103-105, 107, 117 Stat. 752, 754-56 (codified as amended at I.R.C. § 1);
23. Working Families Tax Relief Act of 2004, Pub. L. No. 108-311, §§ 101(b)-(e), 105, 118 Stat. 1166, 1167-69 (codified at I.R.C. § 1);
24. see also Arthur Laffer, Tax Hikes and the 2011 Economic Collapse, WALL ST. J., June 7, 2010, at A19.
25. Although a complete discussion of nonincome taxes is beyond the scope of this Article, recent Medicare tax increases include significant marriage bonuses and penalties.
26. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 9015, 10,906 (2010) (amending l.R.C. § 3101(b));
27. Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, § 1402, 124 Stat. 1029, 1060-63 (to be codified at I.R.C. § 1411);
28. Diana Furchtgott-Roth, Marriage Penalties Rise Under the New Healthcare Law, 127 TAX NOTES 349 (2010).
29. By "rate increase," I mean a rate increase through new legislation, not the scheduled sunsets.
30. See John D. McKinnon & Greg Hitt, Middle-Class Tax Boost Is Broached, WALL ST. J., June 23, 2010, at A2 ("When the time comes for a long-term plan, Mr. Hoyer added, 'raising revenue is part of the deficit solution' along with spending cuts ⋯ Republicans said Democrats were signaling their intent to raise taxes on the middle class.");
31. David Wessel, Taxing Rich Wouldn 't Close the Gap, but Would Shrink It, WALL ST. J., Sept. 3, 2009, at A4 ("[N]either politicians nor their constituents show any willingness to cut spending enough to avoid tax increases. So the issue is whose taxes, and the arithmetic suggests it won't only be those who make more than $250,000 a year.");
32. Bruce Bartlett, Robin Hood Tax Policy, FORBES, July 17, 2009, http://www.forbes.com/2009/07/16/tax-policy-wealthy-opinions-columnists-bruce- bartlett.html ("Historically, increases in the top rate have tended to pave the way for higher rates on the middle class. Holding down the top rate in effect places a cap on how high tax rates on the middle class can go. If the top rate rises, higher rates on the middle class probably won't be too far behind.");
33. Ruth Marcus, Obama Squelches His Truth Whisperers, WASH. POST, Aug. 5, 2009, at A13 (noting Treasury Secretary Timothy Geithner's and National Economic Council Director Lawrence Summers's refusals to rule out tax increases on families making under $250,000);
34. Deborah Solomon, Woes Across the Ocean Spur U.S. to Choose Sides on Debt, WALL ST. J., June 7, 2010, at A2;
35. Fred Barnes, Pelosi 's Loss Could Be Obama's Gain, WALL ST. J., June 7,2010, at A19.
36. 1 U.S.C § 7 (2006).
37. See Matt Bai, Queer Developments, N.Y. TIMES, May 24, 2009, at MM15 (noting that 13% of Americans live in states with gay marriage);
38. Philip Shishkin, Massachusetts Sues U.S. Over Definition of Marriage, WALL ST. J., July 9,2009, at A9;
39. Philip Shishkin, Maine Becomes Fifth State to Legalize Same-Sex Marriage, WALL ST. J., May 7, 2009, at A4;
40. Susan Davis, U.S. Capital To Recognize Gay Marriage, WALL ST. J., May 6, 2009, at A6;
41. Jim DeMint, How Republicans Can Build a Big-Tent Party, WALL ST. J., May 2, 2009, at A9 (opining that Republicans should "welcome a vigorous debate about legalized abortion or same-sex marriage").
42. See Bittker, supra note 1, at 1399-414;
43. McCaffery, supra note 8, at 989-91;
44. Zelenak, supra note 7, at 4-8;
45. Carolyn C. Jones, Split Income and Separate Spheres: Tax Law and Gender Roles in the 1940s, 6 LAW & HIST. REV. 259 (1988).
46. See Bittker, supra note 1, at 1396. "Couples neutrality" means that married couples with equal combined incomes pay the same amount of tax.
47. Id. at 1400. Bittker notes, however, that in "unusual circumstances" aggregating income might result in favorable treatment.
48. Id. at 1400 n.20 (noting that combining income would increase the ceiling for the deduction for charitable contributions, and that capital losses of one spouse could be offset against capital gains of the other spouse on a joint return).
49. A married taxpayer living with a spouse, however, was allowed an additional $1,000 exemption beyond the generally applicable $3,000 exemption, but the $4,000 exemption could be claimed only once or divided among the spouses. Revenue Act of 1913, § 2(C), 38 Stat. 114, 168;
50. Instructions to Form 1040 (1913), http://www.irs.gov/pub/irs-utl/1913.pdf (last visited June 24, 2010). Assuming the highest potential combined rate of 7%, Revenue Act of 1913, § 2(A)(2), 38 Stat. 114, 166, a bonus exemption of §1,000 was worth as much as §70, or a §2,000 exemption penalty (§6,000 in total exemptions for two individuals versus §4,000 for a married couple) was worth as much as §140. These numbers may have been significant in 1913 dollars. On the other hand, the exemption amounts were so high that only the wealthiest 0.5% of the population filed tax returns in 1914. SLEMROD & BAKU A, supra note 9, at 19. Overall, it seems reasonable to conceive of the early income tax as an "individualistic" system.
51. Cf. Bittker, supra note 1, at 1400 (noting the "individualistic bias" of the early tax statutes without discussing exemptions).
52. See Patricia A. Cain, Taxing Families Fairly, 48 SANTA CLARA L. REV. 805, 808 (2008);
53. Zelenak, supra note 2, at 344-45.
54. See Bittker, supra note 1, at 1400-01.
55. There were other strategies to shift income, including gifts of income producing property (often in trust) to a spouse. See Zelenak, supra note 2, at 345. Taxpayers also attempted to shift income by forming a partnership with a spouse.
56. See Jones, supra note 14, at 274-93.
57. See Bittker, supra note 1, at 1404-05.
58. 281 U.S. 111 (1930).
59. 282 U.S. 101 (1930).
60. See Bittker, supra note 1, at 1408.
61. Id. at 1411-12.
62. Id. at 1408-9.
63. Id. at 1410-11.
64. Id. at 1413.
65. Id. at 1412-13.
66. See Jones, supra note 14, at 295-96.
67. See Bittker, supra note 1, at 1413-14 n.73 (noting that separate filing rarely allowed a married couple to achieve tax savings).
68. See id. at 1417.
69. Id.
70. I.R.C. § 2(b)(1) (2006).
71. See Zelenak, supra note 7, at 21-22. For illustrative purposes, consider the effect if high tax rates begin for unmarried taxpayers at $100 of income, for married taxpayers filing jointly at $200, and for heads of household at $150. In this simplified structure, an unmarried couple one of whom files as head of household could have up to $250 of income taxed at a low rate;
72. whereas if the same couple married it could have no more than $200 taxed at a low rate.
73. See Bittker, supra note 1, at 1429 n.110.
74. Id.
75. I.R.C. § 1(d) (2006).
76. Kahng, supra note 4, at 660 (noting that "the joint return was adopted not as a result of reasoned tax policy analysis, but rather out of political expediency");
77. Zelenak, supra note 7, at 5 (calling the joint return an "accident of history").
78. This Article focuses on the single-earner marriage bonus tied to the single person's penalty and the equal-earner marriage penalty tied to the equal-earner unmarried couple's bonus. As Lily Kahng has noted, the terms "marriage penalty" and "marriage bonus" obscure much complexity:
79. As commonly used, the terms "marriage bonus" or "marriage penalty" describe the comparative tax burdens of two couples who are similarly situated except that one is married and filing jointly, and the other is unmarried, with each person filing an individual return. In some cases, the married couple will pay less than the unmarried couple-a marriage bonus. In other cases, the married couple will pay more than the unmarried couple-a marriage penalty.
80. In comparing the two couples, if the referent couple is the unmarried couple, obviously the bonus and penalty will be reversed. The penalty and bonus from this perspective are sometimes called the singles penalty and bonus. Of course, the two people who comprise the unmarried couple are not single in the sense of being uncoupled, but rather single in the sense of being unmarried. Their penalty or bonus, as compared to the married couple, can more precisely be called the unmarried couple's penalty or bonus.
81. A different meaning of the term "singles penalty" arises in considering the relative tax burdens of married couples and uncoupled, single individuals. When an uncoupled, single person pays more than a married couple with the same income, this is also called the singles penalty. In addition, the reverse of this is called the marriage bonus. To be more precise, and to avoid confusion with the newly named unmarried couple bonus or penalty, it can be called the single person's penalty.
82. See Kahng, supra note 4, at 656-57 (footnotes omitted).
83. The principal sources of marriage bonuses and penalties for low-income taxpayers are the standard deduction and EITC rather than the tax rate schedules.
84. See CONG. BUDGET OFFICE, supra note 8, at xvii. The Bush tax cuts increased the standard deduction for married taxpayers filing jointly to double the standard deduction for an unmarried taxpayer;
85. however, the doubling of the standard deduction is scheduled to sunset at the end of 2010. Working Families Tax Relief Act of 2004, Pub. L. No. 108-311, §§ 101(b), 105, 118 Stat. 1166, 1167-69 (codified at I.R.C. § 63);
86. see also Laffer, supra note 9. Moreover, even when the standard deduction for a joint return is double the unmarried taxpayer standard deduction, there can still be a head of household standard deduction marriage penalty.
87. The EITC is a federal transfer program implemented through the tax system.
88. See Jennifer Bird-Pollan, Who's Afraid of Redistribution? An Analysis of the Earned Income Tax Credit, 74 Mo. L. REV. 251, 284-85 (2009);
89. Anne L. Alstott, The Earned Income Tax Credit and the Limitations of Tax-Based Welfare Reform, 108 HARV. L. REV. 533, 534 (1995). After an income plateau, the EITC phases out as income increases, but the complete phaseout amount only increases slightly in the case of a joint return.
90. See I.R.C. § 32(bX2XB) (2006). Because the EITC schedule depends on how many qualifying children a taxpayer has, there can be a marriage bonus if one partner can trigger a more favorable schedule by adding children to a joint return without adding much income.
91. See Walter J. Blum & Harry Kalven, Jr., The Uneasy Case for Progressive Taxation, 19 U. CHI. L. REV. 417,519-20 (1952).
92. See id.
93. Michael A. Livingston, Blum and Kalven at 50: Progressive Taxation. "Globalization." and the New Millennium, 4 FLA. TAX REV. 731, 745-16 (2000).
94. Id. at 738.
95. See David Elkins, Responding to Rawls: Toward a Consistent and Supportable Theory of Distributive Justice, 21 BYU J. PUB. L. 267, 267 (2007).
96. See JOHN RAWLS, A THEORY OF JUSTICE 72 (1971).
97. Id. at 278.
98. See Kahng, supra note 4, at 668-70.
99. Shari Motro tells a whimsical but powerful example illustrating the marriage bonus, which in some sense is an exception to the general rule ignoring gifts in calculating income:
100. Think, for example, of three young investment bankers-Meg, Malik, and Seymour Each makes $100,000 per year, of which they each owe approximately $20,000 in taxes. Meg and Malik fall in love, move in together, and decide to get married. Shortly after the wedding, Meg leaves her job to fulfill a lifelong dream: becoming a trapeze artist. Malik's $100,000 supports both himself and Meg, who now has no income. Despite the money they are saving by splitting the rent, their lifestyle is not what it used to be. Still, Meg is delighted and when Meg is happy, Malik is too. Seymour, who has always dreamed of trying his hand at painting, is still hard at work with Malik.
101. Though he is jealous of Meg and wishes it was he who had found love and a sugar daddy, he keeps his resentment to himself. But come tax time, he loses his cool. It turns out that filing jointly with Meg, Malik now owes some $6,000 less than Seymour on the same $100,000 of income. Essentially, the government is subsidizing Meg's new hobby. Put another way, the government has handed Malik $6,000 (in form of a tax break) for no other reason than being married to someone who has opted out of the workforce. Malik's choice to marry, and the pleasure he derives from making it possible for Meg to do the double somersault, are personal consumption choices that, the argument goes, should have no effect on his tax liability.
102. See Shari Motro, A New "I Do": Towards a Marriage-Neutral Income Tax, 91 IOWA L. REV. 1509, 1524-25 (2006) (citations omitted) (the illustration uses 2006 tax rates and assumes the standard deduction).
103. See Bridget J. Crawford, One Flesh, Two Taxpayers: A New Approach to Marriage and Wealth Transfer Taxation, 6 FLA. TAX REV. 757, 764-75 (2004) (describing estate and gift tax transition from no marital deduction, to 50% marital deduction, and finally the current unlimited (subject to certain restrictions) marital deduction).
104. See Michael J. Graetz, To Praise the Estate Tax, Not To Bury It, 93 YALE L.J. 259, 271-73 (1983).
105. See Motro, supra note 49, at 1516-18.
106. In contrast, some have argued that a partnership model explains marital income splitting under traditional tax principles.
107. See id. at 1526-27 (critiquing the "collective efforts" justification). Under the model, the spouses agree to a 50-50 partnership because of their equal contributions to the production of marital income. It is, of course, possible for married couples to form a partnership and make contributions of equal value, but it is unrealistic to generally presume equal contributions.
108. See id. at 1527 (suggesting disguised gifts or payment for personal services rather than business efforts is more likely).
109. See Marjorie E. Kornhauser, Love, Money, and the IRS: Family, Income-Sharing, and the Joint Income Tax Return, 45 HASTINGS L.J. 63, 105 (1993).
110. See Motro, supra note 49, at 1543-44.
111. See id. at 1536-40.
112. See id. at 1537.
113. Cf. id. at 1538 (observing that disregarding transfers even between non-spouses is the "de facto situation" for unmarried couples who pool and that the IRS "usually turns a blind eye to these arrangements, rarely requiring the low-earning partner who assumes more responsibility for household chores to report as compensation income received from the primary wage-earner").
114. In addition, commodization for tax purposes may not even send a message that relationships should be commoditized for non-tax purposes.
115. See Bittker, supra note 1, at 1422-1425 (critiquing this justification).
116. Although some married couples must live apart for business reasons, it seems reasonable to assume that married couples will share living space and other assets.
117. Id. at 1423.
118. See Motro, supra note 49, at 1525 (rejecting this justification).
119. Id.
120. See Heather Boushey, The New Breadwinners, in THE SHRIVER REPORT, http://www.awomansnation.com/economy.php (last visited June 19,2010).
121. See McCaffery, supra, note 8, at 1059;
122. Zelenak, supra note 2, at 365. The stacking effect operates even in a system with double-wide brackets, as long as one spouse's earnings are viewed as optional.
123. Cf. Motro, supra note 49, at 1554-55 (noting concerns about states' sovereignty over family law).
124. I.R.C. § 164(a) (2006).
125. Lucas v. Earl, 281 U.S. Ill (1930);
126. Pamela B. Gaim, Abandoning Marital Status as a Factor in Allocating Income Tax Burdens, 59 TEX. L. REV. 1, 55-58 (1980) (concluding potential constitutional challenges would likely fail).
127. See Zelenak, supra note 2, at 382-94.
128. See id. at 383 ("not a major problem");
129. Jones, supra note 14, at 274-79 (discussing history of family partnership litigation).
130. Cf. id. at 382 ("In the vast majority of cases there is no question as to which spouse earned a particular item of income, so taxation to the earner will involve neither complexity nor opportunity for abuse.")
131. See id. at 387.
132. Cf. id. at 384 (describing five options, which I collapse into three).
133. Cf id. at 391 (acknowledging that this option does not put a premium on tax planning, is administrable, does not burden secondary workers, and is marriage-neutral for most couples) ("I give more importance to the first option's strengths, but that conclusion is certainly debatable.").
134. But see id. at 390 (concluding that, in general, respecting transfers of property for purposes of income tax rates on income from property is preferable because it "achieves true marriage neutrality" even though it puts a "heavy premium on careful tax planning" and carries a "significant" secondary worker disincentive).
135. See id. at 388.
136. See id. at 391-92.
137. See id. at 392-93.
138. See id. at 392.
139. Id. at 393.
140. Id.
141. Id.
142. Michael A. Livingston, Reinventing Tax Scholarship: Lawyers. Economists, and the Role of the Legal Academy, 83 CORNELL L. REV. 365 (1998). Livingston posits that this is because much tax scholarship is aimed at Congress, the Treasury Department, and the Internal Revenue Service, rather than at other legal academics or judges serving on nontax courts.
143. See id. at 367-68,373-74, 389-90.
144. Id. at 374.
145. See Kristin E. Hickman, A Problem of Remedy: Responding to Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 76 GEO. WASH. L. REV. 1153, 1155-56 (2008) (noting that "[o]ver time, however, benign neglect and a restructuring of Internal Revenue Service ('IRS') personnel and priorities have yielded contemporary drafters of tax regulations with little knowledge of or regard for administrative law requirements" and observing that "[c]orrespondingly, other tax scholars have observed the tax bar's insular nature and resulting tendency to disregard potentially relevant nontax legal doctrine"). Of course, obvious and important counterexamples exist. For example, Dorothy Brown writes about tax from a critical race perspective.
146. See Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 WASH. & LEE L. REV. 1469 (1997). Similarly, Maureen Cavanaugh wrote about contemporary tax policy from the vantage point of a scholar in classics.
147. See, e.g., Maureen B. Cavanaugh, Democracy, Equality and Taxes, 54 ALA. L. REV. 415 (2003);
148. Maureen B. Cavanaugh, Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law, 79 N.C. L. REV. 577 (2001).
149. See Kristin E. Hickman, The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference, 90 MINN. L. REV. 1537, 1540 (2006) ("Where tax scholars and practitioners addressing the issue of tax deference are fairly consistent is in their insistence that when it comes to Chevron, tax is special and should be treated differently from other areas of administrative law.").
150. See, e.g., JUDGES IN CONTEMPORARY DEMOCRACY: AN INTERNATIONAL CONVERSATION (Robert Badinter & Stephen Breyer, eds. 2004).
151. Ronald J. Krotoszynski, Jr., "I'd Like to Teach the World to Sing (in Perfect Harmony) ": International Judicial Dialogue and the Muses-Reflections on the Perils and the Promise of International Judicial Dialogue, 104 MICH. L. REV. 1321, 1357 (2006). He cautions, however, against the overuse of foreign law in interpreting domestic legal instruments: "At the same time, however, judges should take care not to mistake a muse for more than what it is-an ephemeral source of motivation and inspiration." Id. at 1358.
152. See, e.g., Abraham Bell, Private Takings, 76 U. CHI. L. REV. 517 (2009) (questioning an expansive reading of public use requirement under the Takings Clause).
153. SEE LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY 18-35 (2000).
154. See Anita Bernstein, For and Against Marriage: A Revision, 102 MICH. L. REV. 129, 159 (2003);
155. see also Kahng, supra note 4, at 667-72 (discussing potential wage premium for married men, and describing stigmatization of single people).
156. See Bernstein, supra note 91, at 159.
157. See infra notes 104 through 110 and accompanying text.
158. See Bernstein, supra note 91, at 159-60.
159. See Lynne Wardle, "Multiply and Replenish ": Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 HARV. J.L. & PUB. POL'Y 771, 778 (2001) ("Contemporary legal literature contains surprisingly little serious scholarship discussing the social interests underlying laws regulating marriage. Perhaps this is because the overwhelming trend of developments in American family law during the past thirty years has emphasized the autonomous individual's interest in family relations.").
160. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978) (freedom to marry even if delinquent on child support);
161. Varnum v. Brien, 763 N.W.2d 862, 885 (Iowa 2009) (option to choose opposite-sex partner is irrelevant to homosexuals);
162. Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy, Balancing the Individual and Social Interests, 81 MICH. L. REV. 463, 468 (1983) ("[C]ontemporary legal writers take for granted that the 'right to marry' is grounded 'in respect for freedom of choice in intimate personal relationships⋯.'").
163. See PHILLIP LONGMAN, EMPTY CRADLE: HOW FALLING BIRTHRATES THREATEN WORLD PROSPERITY AND WHAT TO DO ABOUT IT 4 (2004).
164. See MARK LINO, CTR. FOR NUTRITION POL'Y & PROMOTION, U.S. DEP'T OF AGRIC, EXPENDITURES ON CHILDREN BY FAMILIES, 2007, at ii-iv (2008).
165. See Stephanie Hoffer, Adopting the Family Taxable Unit, 76 U. CIN. L. REV. 55,61 (2007).
166. Id.
167. Stephen Graham, Bundles of both joy and cash;
168. Germany begins offering new financial bonuses to raise its sagging birthrate, HOUSTON CHRON., Jan. 4, 2007, at A11 (noting newly adopted German baby bonus program and describing existing baby bonus programs in Britain, Russia, Spain, France, the Netherlands, and Italy). Sweden pioneered this kind of program in 1948 and recently enhanced the incentives to encourage more births:
169. Since 1948, Sweden has made a monthly cash payment for each child under 16. The child allowance now starts at $155. In 2001, the government increased the allowance for large families-parents with three children, for instance, receive $530 per month, and those with four get $811. Parents also get a combined 480 days of paid leave per child.
170. Id.
171. Id.
172. See id. (noting that a substantial decline in Germany's population "could hurt the economy by sapping the work force-and undermine the state pension system").
173. See Robin Fretwell Wilson, Evaluating Marriage: Does Marriage Matter to the Nurturing of Children?, 42 SAN DlEGO L. REV. 847, 849 (2005).
174. Id.at 850.
175. Id.at 879.
176. Id.at 873.
177. Id. at 874.
178. Id.
179. Id. at 875.
180. See Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 LA. L. REV. 773,775, 779 (2002).
181. Id. at 779, 781.
182. Id. at 782.
183. Id. at 789 ("For two generations every Western, industrialized nation has had sub-replacement birth rates. Here in America, the crisis is still many generations off, as our birthrates are closer to replacement and our social tolerance of immigration higher. But many European nations are, absent dramatic changes in reproductive patterns, on the road to dying out.")
184. 1 U.S.C. § 7 (2006);
185. 28 U.S.C. § 1738C.
186. H.R. REP. No. 104-664, at 14(1996).
187. Id.
188. Of course, unmarried people have and raise children, and these children also represent a social value. Indeed, the state is probably powerless constitutionally to attempt to limit procreation to married couples.
189. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 933 (1992) (plurality opinion);
190. Griswold v. Connecticut, 381 U.S. 479 (1965);
191. Skinner v. Oklahoma, 316 U.S. 535 (1942);
192. but see Buck v. Bell, 274 U.S. 200, 207-08 (1927). Although the Supreme Court has never formally overruled Buck, subsequent opinions suggest that it no longer possesses doctrinal force, see, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 100-01 (1973) (Marshall, J., dissenting) (arguing that Roe and Skinner effectively establish a right to procreate, the precedent in Buck notwithstanding), and legal scholars also have argued that Buck no longer constitutes good law, relying in part on lower federal and state court decisions so holding.
193. See Russell D. Covey, Criminal Madness: Cultural Iconography and Insanity, 61 STAN. L. REV. 1375, 1398 (2009) ("In Skinner v. Oklahoma, the Court essentially repudiated Buck v. Bell's embrace of eugenic criminology, ruling that Oklahoma's Habitual Criminal Sterilization Act was unconstitutional, at least as applied to Skinner, who had been convicted of stealing chickens.");
194. William A. Krais, Note & Comment, The Incompetent Developmental Disabled Person's Right of Self-Determination: Right-to-Die, Sterilization and Institutionalization, 15 AM. J.L. & MED. 333, 352 n.100 (1989) ("Since Skinner, involuntary sterilization statutes have been considered unconstitutional absent a showing that such a statute 'is the only remedy available to further a compelling governmental interest.'" (quoting In re A.W., 637 P.2d 366,368-69 (Colo. 1981)).
195. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 899-902 (Iowa 2009);
196. Lewis v. Harris, 908 A.2d 196,216-17 (N.J. 2006);
197. Baker v. State, 744 A.2d 864,882 (Vt. 1999).
198. See, e.g., Hernandez v. Robles, 855 N.E.2d 1, 7, 11-12 (N.Y. 2006);
199. Andersen v. King County, 138 P.3d 963,982-83 (Wash. 2006).
200. See Frank Rich, The Bigots' Last Hurrah, N.Y. TIMES, Apr. 19, 2009, at WK10;
201. Adam Nagourney, As Giuliani Strays From G.O.P. Base, He Sticks to 9/11, N.Y. TIMES, May 17, 2007, at A22;
202. Peter Steinfels, The combat of America's 'culture wars' takes place within political parties instead of between them, N.Y. TIMES, Aug. 5,2006, at Al 1.
203. See supra note 121.
204. See Katherine Shaw Spaht, Revolution and Counter-Revolution: The Future of Marriage in the Law, 49 LOY. L. REV. 1, 4-6 (2003) (critiquing the evolution of autonomy as the modem driving force behind marriage). 49 LOY. L. REV. 1, 4-6, (2003)
205. See Sam Roberts, It's Official: To Be Married Means To Be Outnumbered, N. Y. TIMES, Oct. 15, 2006, at A22.
206. See Leah Ward Sears, The "Marriage Gap": A Case for Strengthening Marriage in the 21st Century, 82 N.Y.U. L. REV. 1243,1246 (2007).
207. See Kimberly A. Yuracko, Does Marriage Make People Good or Do Good People Marry?, 42 SAN DIEGO L. REV. 889,894 (2005).
208. Id.
209. See Wilson, supra note 104, at 878.
210. Id.
211. See Yuracko, supra note 126, at 893.
212. See Carey v. Population Servs. Int'l, 431 U.S. 678 (1977);
213. Griswold v. Connecticut, 381 U.S. 479(1965).
214. See Stenberg v. Carhart, 530 U.S. 914 (2000);
215. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 933 (1992) (plurality opinion);
216. Roe v. Wade, 410 U.S. 113 (1973).
217. See Skinner v. Oklahoma, 316 U.S. 535, 539-42 (1942);
218. see also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 100-101 (1973) (Marshall, J., dissenting) (arguing that Roe and Skinner effectively establish a right to procreate without government interference with a decision to have, or not have, a child).
219. See Alaska Civ. Liberties Union v. State, 122 P.3d 781, 793 (Alaska 2005) ("There is no indication here that granting or denying benefits to public employees with same-sex domestic partners causes employees with opposite-sex domestic partners to alter their decisions about whether to marry. There is no indication here that any of the plaintiffs, having been denied these benefits, will now seek opposite-sex partners with an intention of marrying them. And if such changes resulted in sham or unstable marriages entered only to obtain or confer these benefits, they would not seem to advance any valid reasons for promoting marriage⋯.[MJaking benefits available to spouses may well promote marriage;
220. denying benefits to the same-sex domestic partners who are absolutely ineligible to become spouses has no demonstrated relationship to the interest of promoting marriage.").
221. See, e.g., Martha Albertson Fineman, Contract and Care, 76 CHI.-KENT L. REV. 1403, 1403 n.2 (2001);
222. Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, andSelf-Sufficiency, 8 AM. U. J. GENDER SOC. POL'Y & L. 13,21 n.15 (2000).
223. See Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, supra note 135, at 18.
224. Id. at 20.
225. See Fineman, Contract and Care, supra note 135, at 1410.
226. Id.
227. Id. at 1411.
228. Id. at 1419.
229. Id. at 1420.
230. See Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, supra note 135, at 24.
231. See id. at 23.
232. Cf. Wilson, supra note 104, at 878 (noting the perils of overly successful mamage subsidies).
233. See Zelenak, supra note 1, at 388-89.
234. See id. at 389.
235. Id.
236. See Hoffer, supra note 99, at 96 n.216.
237. See Peter Singer, Why We Must Ration Health Care, N.Y. TIMES, July 19,2009, at MM38.