Since the mid-twentieth century, there has been a profound cultural shift in the way Americans approach intimate relationships. Gone are the days of marriage as the predominant site for sexual activity, shared identities and resources, childbearing and childrearing, and fixed domestic roles. The conventional script of the breadwinner male and homemaker female marrying, having children, and growing old together “til death do us part” is largely a relicof the past. We have since seen marked increases in divorces, women entering the paid work force, same-sex relationships, births outside of marriage, and cohabitation (in lieu of and preceding marriage). Americans are now cycling through multiple and shorter partnerships in a landscape of frequent divorce, frequent marriage, and frequent short-term cohabitation. Not only has the menu expanded beyond marriage as the sole option, but the once-fixed ingredients of marriage have given way to abundant personalization, evoking a choose-your-own-adventure feel. As sociologists have recognized, marriage has undergone a “deinstitutionalization.”
Enter the “new individualism.” One of the leading researchers of marriage, sociologist Andrew Cherlin, was influential in identifying this phenomenon as a central strand of American culture underlying today’s deinstitutionalized climate:
The cultural model of individualism . . . holds that self-development and personal satisfaction are the key rewards of an intimate partnership. Your partnership must provide you with the opportunity todevelop your sense of who you are and to express that sense throughyour relations with your partner. If it does not, then you should end it.
Although the existence of an increasingly individualistic America has been documented within sociology and widely discussed in the popular press, the cultural influence of the new individualism is only now starting to gain recognition in the legal literature. Professor Anne Alstott has led the way in providing a detailed account of modem family life as molded by the new individualism. Through her discussion of the income tax and Social Security spousal benefit, she has demonstrated that “the new individualism has rendered obsolete legal doctrines and policy analyses that treat formal marriage as the proxy for family life.” Alstott’s work provides a mere “glimpse [into] the new policy possibilities opened up by the new individualism,” as there remain broad swaths of existing law that have not yet been reconsidered in light of the new individualism.
If the state, acting through social welfare policy, were to endorse the values underlying the new individualism, what implications would these values have for policymaking going forward? This article analyzes that question in relation to programs supporting Americans in old age-namely, what the new individualism would mean for existing law governing benefits and obligations at old age, focusing on Medicaid, Social Security spousal benefits, and ERISA-governed private pensions.
Old age is a particularly vulnerable time for individuals who are simultaneously burdened with thin resources and skyrocketing long-term care costs. As of 2010, Americans aged sixty-five or over comprised thirteen percent of the population, a figure projected to increase to sixteen percent in 2020 and nineteen percent in 2030. Not only will more Americans reach retirement age, but they will also live longer. As America’s aging population swells, more people will need long-term care-primarily nursing home care-and a means to pay for it. Researchers predict that the long-term care costs of dementia, a disease that incurs even greater costs than heart disease and cancer, will more than double in the next thirty years and “swamp the system.”
Health care spending as a share of United States gross domestic product (GDP) has climbed from five percent in 1960 to eighteen percent today. A total of $2.6 trillion in 2012 was spent on health consumption expenses, including $328.2 billion out-of-pocket, $917 billion on private health insurance, $572.5 billion on Medicare, and $421.2 billion on Medicaid. The proportion of health care costs funded by Medicare and Medicaid has significantly increased since1970. In 1970, Medicare and Medicaid funded 3.5% and 23.3% of nursing care costs, respectively, while 49.5% of costs were funded out-of-pocket. In 2010, however, Medicare and Medicaid funded 22.3% and 31.5% of nursing care.
It is no secret that the demands on broader institutional support systems will only intensify. Now, more than ever, is a good time to examine how the state allocates economic benefits and burdens at old age. Existing foundational programs including Medicaid, Social Security spousal benefits, and ERISA- governed private pensions are premised on a model of lifetime economic partnership, which relies on the fading notion of a dependent homemaker wife ina lasting marriage. This article posits that the new individualism, taken seriously, would mandate a significant overhaul of the existing web of state programs supporting Americans in old age. Rather than focusing on transitional reforms for current baby boomer couples who married against the backdrop of mid-twentieth-century norms, this article looks ahead to what the law should be when the generation forming relationships in the culture of the new individualism reaches old age.
So far, this article has proceeded as if all Americans share the same conception of marriage, as shaped by the new individualism-and intentionally so. From the poorest to the wealthiest, and across all races, young adults today approach marriage with a pronounced emphasis on individual development and personal emotional satisfaction. As Cherlin observed, “[w]hen it comes to marriage, the poor and the near-poor …are operating in the same twenty-first century culture as the middle class.
This is not to be dismissive of the pervasive and important distinctions in marital trends along lines of income, race, and gender. Lower-income individuals are more likely to raise children outside of marriage. College- educated individuals who tend to have higher incomes also cohabitate but are more likely to wait until marriage to have children. Non-college-educated Americans are more likely to cycle through cohabitating unions. When they do marry, their marriages are less stable. An estimated thirty-four percent of the first marriages of women without high school degrees, and twenty-three percent of those without college degrees end in divorce or separation within five years, compared to just thirteen percent of those with college degrees. African Americans have experienced the greatest decline in marriage rates. Today, only two out of three African American women will marry during their lifetimes, compared to nearly nine out of ten in the 1950s.
Although commentators disagree as to whether the new individualism represents a welcome expansion of personal freedom or a lamentable decline in moral standards, this article refrains from taking sides in that debate. It is indisputable, however, that there have been dramatic changes in the cultural landscape of marriage in the past few decades, and many areas of law which were developed when marriage was still understood as a lifetime economic partnership have not yet caught up with today’s social reality. Particularly at a time when financial burdens in old age are escalating, it is important that the state update its old age support programs to address the needs of modem families. This article seeks to advance the important project of considering what a rigorous interpretation of the new individualism would mean for the law.
Part II describes the new individualism, as reflected in the attitudes ofyounger people toward marriage, with respect to principles governing state program design. The tenets of the new individualism will be contrasted with those of the older lifetime economic partnership model. Part III provides an overview of the aspects of Medicaid, Social Security derivative benefits, and ERISA-governed private pensions that distinctly affect married individuals, and demonstrates how these programs reflect outdated tenets of the lifetime economic partnership model. Finally, Part IV analyzes how these existing laws would have to be reformed in order to align with the tenets of the new individualism. Though political and administrative constraints exist, these reform proposals are useful in repositioning our locus of policy options going forward under a serious conception of the new individualism.
The addition of “sex” to Title VII, a classic story of opportunism, was only possible due to a long history of advocacy, and many congressional votes, in favor of the ERA.
Critiquing the marginalizing effect institution of marriage has on those outside of non-state-sanctioned relationships, such as trans and incarcerated persons.
Do new domestic terrorism laws put Black Lives Matter supporters, anti-war protestors, and/or animal rights activists at risk? Do they presently incorporate sufficient safeguards against such misuse and abuse?
Migrant children fleeing violence in their native countries have experienced severe psychological trauma before and after entering the country when we separated them from their families and placed them in detention facilities, and some families remain separated.