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On Justice Ginsburg and the Political Economy of the Family


Deborah Dinner is an Associate Professor of Law at Emory University.

When Justice Ruth Bader Ginsburg passed away, the world mourned a “tzadik”— a champion for gender equality as a litigator and jurist, a prophet for justice, and a genuinely humane soul. Grief invites reflection upon the past as a necessary step to build the future. The LPE community might consider the political economy of the family that Ginsburg combatted, that which she envisioned, that which came to be, and that which might.

In 1972, Ruth Bader Ginsburg launched the ACLU Women’s Rights Project and took aim at laws that coerced individuals and families to conform to gender stereotypes. She faced a monumental task. Ideas about gender, family structure, and the allocation of responsibility for dependency structured the modern welfare state. Two gender ideologies were particularly salient. The first was the notion of “separate spheres,” which the white middle class had embraced in the mid-nineteenth century in response to industrialization. This ideology relegated men to wage-earning in the market and women to unpaid caregiving. The second was the family-wage ideal that male breadwinners should earn income sufficient to support a dependent wife and children. Both of these ideologies shaped the development of employment policies and social insurance programs during the Progressive Era, New Deal, and post-World War II period. For example, employers routinely fired pregnant workers on the ground that new mothers’ social duty was to care full-time for their children. Also illustrative, the Social Security Act of 1935 provided widows, but not widowers, with “mother’s benefits” to care for young children in the home rather than enter the workforce.

The argument that gender stereotypes structured law, and therefore shaped social identities and practices, is relatively familiar to historians and legal scholars. Less widely discussed is how gender ideologies influenced the development in the United States of what sociologist Gøsta Esping-Andersen termed a liberal welfare state. Liberal regimes rely primarily on families and markets to meet social needs, and the government provides minimal support for social welfare. The U.S. welfare regime has long presumed that women would perform unpaid care work, for love not money, and that men would support female caregivers. This presumption has, in turn, legitimated the lack of social insurance and welfare entitlements supporting families. Gender subordination, along with racism, thus explains why the United States did not develop a more robust welfare state.

Gender subordination, along with racism, thus explains why the United States did not develop a more robust welfare state.

By the mid-1970s, separate-spheres and family-wage ideologies, always exclusionary along racial and class lines, were rapidly becoming anachronistic even for white middle-class families. Deindustrialization, globalization, the conservative assault on unions, fractures between labor and civil rights, and the ebbing of unions’ centrality to American society and politics all led to a decline in wages and growing inequality by the decade’s end. At the same time, long-term structural shifts in the economy and in women’s education catalyzed the growth of dual-earner families. Women increasingly performed a “second shift.” Furthermore, the marital family itself was in jeopardy. Single motherhood was increasing. The proliferation of no-fault divorce laws across the states in the early 1970s, coupled with state legislatures’ rejection of feminist proposals for reform of marital property rules, together reduced women’s bargaining power at divorce. Feminists faced pressing questions about how to reform the welfare regime to recognize the changing structures of the family and labor market.

Different elements of the women’s movement advanced competing visions. Drawing on my forthcoming book, The Sex Equality Dilemma, I discuss three here. One strand sought to enhance the benefits that women received in gendered roles as wives and mothers. Betty Blaisdell Berry, Chair of the National Organization for Women’s Marriage, Divorce, and Family Relations Task Force, pursued this vision. She was most concerned about middle-class women, like herself, who sacrificed their own career advancement to care for their families. As Berry saw it, the problem was that the law did not treat “homemaking” as an occupation, and that homemakers thus lacked pensions, disability benefits, health insurance, and limits on overtime. “Displaced homemakers” were therefore vulnerable to economic hardship at divorce. Conservatives defeated Berry and NOW activists’ most ambitious advocacy proposal: Social Security credits for homemakers that would grant them economic insecurity independent of their marital status. By the end of the 1970s, NOW succeeded in persuading Congress to pass more limited Social Security reforms that enhanced benefits for divorced and widowed ex-spouses. In sum, this first strand of feminist activism realized greater welfare state support for caregivers, while also reinforcing women’s gendered role in the family.

Ruth Bader Ginsburg was critical of such gendered forms of welfare activism. Then a professor at Rutgers School of Law, Ginsburg warned that Barry’s proposal would “tend to build up the institution of marriage.” As legal scholar Cary Franklin has argued, Ginsburg awakened to feminism in the early 1960s as a researcher in Sweden. There she encountered thinkers committed to the ideal that both men and women should fulfill dual roles as family providers and caregivers. Over the next decade, Ginsburg watched and learned as Swedish lawmakers implemented policies to help liberate individuals from prescribed gender roles. These polices included negative rights against public and private discrimination and affirmative entitlements to daycare, abortion rights, protective labor legislation, and paid parental leave. Ginsburg’s comments to Barry suggest she envisioned far more than deconstructing fixed gender roles within marriage. Beyond anti-stereotyping, Ginsburg envisioned a welfare state that supported caregivers independent of marriage. Only such a welfare state—capacious and egalitarian—could guarantee real freedom.

In litigating against sex discrimination in social welfare policies, however, Ginsburg could only institute an anti-stereotyping principle. This was half the battle. Prohibitions on gender stereotyping in military benefits, Social Security, and state family laws could not themselves realize greater support for care. Take the example of mothers’ benefits. When Stephen Wiesenfeld’s wife Brenda tragically died in childbirth, he wanted to access these benefits. Brenda, a schoolteacher, had served as the family’s primary breadwinner. Wiesenfeld now wanted to stay at home to care for his infant son. Ginsburg brought an equal protection challenge in court. She fought intersecting gender stereotypes: that men should not choose full-time caregiving over waged work and that women’s wage-earning did not deserve the same Social Security benefits as men’s. Ginsburg’s 1975 win in Weinberger v. Wiesenfeld was a major victory for gender equality. It took a big step toward a world in which women could act as breadwinners and men as caregivers, and each could receive the benefits accorded these roles. But it did not take us further toward a world in which the state offered greater recognition and support for care.

Consider, by contrast, a third strand of feminist activism. Just a few months after the Court decided Wiesenfeld, Margaret Prescod distributed leaflets in New York City on behalf of the organization she co-founded: Black Women for Wages for Housework. A Caribbean-American immigrant from Barbados, Prescod was a Black Panther breakfast volunteer and a public school teacher in Brooklyn’s Ocean Hill-Brownsville neighborhood. Prescod made the connection between the struggle for welfare rights and the international Marxist feminist movement. Wages for Housework, which started within the workers’ movement in Italy, drew attention to capitalism’s extraction of women’s unpaid labor within the home. Women’s cooking, nursing, cleaning, and even sexual labors reproduced the fundamental capitalist commodity: the workforce. The welfare rights movement in the United States similarly argued that poor women’s mothering labors merited public support.

An important historical question is why middle-class feminist advocates for displaced homemakers did not align themselves with poor and working-class advocates for wages for housework. They shared an interest: state support for unpaid care work in the home. The answer lies in the racialized welfare politics of the 1970s. Hostility to poor mothers of color made some feminists wary of claiming entitlements that would align downwardly mobile white women with AFDC recipients. Indeed, feminists ultimately advocated a market-based solution for displaced homemakers – job training – by explicitly juxtaposing this solution with public assistance.

An important historical question is why middle-class feminist advocates for displaced homemakers did not align themselves with poor and working-class advocates for wages for housework. They shared an interest: state support for unpaid care work in the home. The answer lies in the racialized welfare politics of the 1970s.

The lack of state support for care limited the transformation rendered by Ginsburg’s constitutional victories. Sex neutrality under law could not promise genuine freedom for women if the state did not directly reward women’s caregiving labors. Such labor remained unpaid and underpaid, increasingly performed by poor women of color—often migrants. The welfare reforms of the mid-1990s further penalized motherhood and caregiving. As I argue in The Sex Equality Dilemma, neoliberal interpretations of sex equality affirmed individual freedom in gender roles while preserving private responsibility for care and dependency. This ideal’s abject failure is painfully apparent now, as the COVID-19 pandemic has triggered a crisis in families’ ability to care without adequate state support. To honor Ginsburg’s legacy, progressive scholars and advocates today need to do more than celebrate and defend constitutional and statutory prohibitions on gender stereotyping. We need to work toward affirmative entitlements that recognize and reward caregivers of any gender.