RECONFIGURING SEX, GENDER, AND THE LAW OF MARRIAGE1

Abstract

This article brings together legal, historical, and social science research to analyze how couples allocate income‐producing and domestic responsibilities. It develops a framework—what I call the marriage equation—that shows how sex‐based classifications, (non‐sex‐specific) substantive marriage law, and gender norms interrelate to shape these choices. Constitutional decisions in the 1970s ended legal distinctions between the duties of husbands and wives but left largely in place both gender norms and substantive rights within marriage, tax, and benefits law that encourage specialization into breadwinning and caregiving roles. By permitting disaggregation of the marriage equation, the new reality of same‐sex marriage can serve as a natural experiment that should inform both study design and policy reform.Key Points for the Family Court Community: This article shows that although marriage law no longer explicitly requires wives to provide domestic support and husbands to provide economic support, non‐sex‐specific aspects of the substantive law continue to encourage couples to specialize into breadwinning and caregiving rules. Same‐sex marriage can serve as a natural experiment to expose the extent to which substantive marriage law—as opposed to gender norms—may encourage couples to specialize into breadwinning and caregiving roles. Research on same‐sex marriage can help inform how best to achieve equality within all marriages and what is fair compensation for a dependent spouse in the event of a divorce.