Uncoupling

59 Pages Posted: 9 Dec 2020

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

June Carbone

University of Minnesota - Twin Cities - School of Law

Date Written: December 4, 2020

Abstract

A series of Supreme Court decisions recognize the end of the federal-state-corporate partnership that once provided a foundation for employment security and family stability. That partnership, which reached its pinnacle during the industrial era, established a family wage made available to the majority of the male population through unionization, a social safety net that filled the gaps left by wage labor, and the extension of these public and private benefits to women and children through marriage.

Uncoupling shows how family security and stability can no longer be linked to employment or marriage, requiring a redesign of the state response. The Supreme Court has framed the necessary elements in that response. First, although other scholars note that the Court’s marriage equality decision in Obergefell celebrates marriage, this Article emphasizes that the decision rejects the historical conception of marriage that made it mandatory, gendered, and foundational to family security. Second, the Court’s opinion in Little Sisters of the Poor this past Term reaffirms the Court’s earlier decisions that employers owe no civic obligations to their employees or the public good and are thus inappropriate partners for the administration of state benefits. Third, the Court’s ongoing decisions interpreting the Affordable Care Act, including those pending during the upcoming Supreme Court term, lend more support to direct state-citizen compacts than to employment-based benefits.

What other legal scholars have yet to acknowledge is that these decisions point the way toward the emergence of a new legal order. The Article's groundbreaking analysis of the rise and fall of the male family wage leads to the conclusion that coupling – between men and women in marriage and between employers and state-sponsored benefits—no longer works, clearing the way for creation of a new legal order.

Keywords: family wage, marriage, affordable care act, employee benefits

Suggested Citation

Cahn, Naomi R. and Carbone, June, Uncoupling (December 4, 2020). Arizona State Law Journal, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2020-77, Available at SSRN: https://ssrn.com/abstract=3742979

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

June Carbone

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

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