I



FAMILY REFORM THROUGH WELFARE REFORM: HOW TANF VIOLATES CONSTITUTIONAL RIGHTS TO VOLITIONAL FAMILY FORMATION

JILL ADAMS

Introduction

The language and implications of so-called “welfare reform” reveal normative conceptions of family, entrenched in political discourse, endorsed by the federal government, and imposed upon individuals in need of public assistance. Supporters herald the codification of traditional “family values”[1] and consider it the launch of “what could become a robust and multi-front attack on the problem of family composition.”[2] However, many criticize the push for “family values” through welfare reform as an inappropriate and ineffective forum. From opponents’ perspective, it appears more like the launch of an effort to restore “gender divisions of labor by stigmatizing nontraditional family and by pushing women (except welfare mothers) to return to their ‘rightful’ place in the home.”[3] In Part I of this paper, I will outline the history of welfare programs in the United States to contextualize the present situation. I will discuss the current welfare system, in Part II, beginning with the social and political changes that prompted welfare reform. My focus will be on the aspects of the current welfare system that deal specifically with procreation and family composition. In Part III, I will offer a two-part critique of the goals asserted by welfare reformers, suggesting that they are both futile and unjust. I argue that the programs and regulations designed to advance the government’s aim of creating traditional, married two-parent families are unsuccessful and based on misunderstandings of the motivations and behavior of welfare recipients. I further contend that by conditioning receipt of welfare benefits on not procreating and on marriage,[4] the government forces poor women to sacrifice their constitutional rights to reproductive freedom and volitional family formation.

Discussion

I. The History of Welfare in the United States[5]

A. Mothers’ Pensions

In 1909, the White House Conference on Children urged state-level public assistance to single mothers – understood at the time to be widows – above and beyond the local-level general assistance provided to others living in poverty, thus, marking single mothers’ relatively high social standing among the poor. Over the next twenty years, most states rose to the challenge and established “mothers’ pensions,” the precursors to what we think of as “welfare” programs.[6] Soon thereafter, though, the Great Depression lengthened waiting lists, depleted funds, and reduced function to only parts of some states.[7] In response, Title IV of the Social Security Act of 1935 created a new program, called Aid to Dependent Children (later known as Aid to Families with Dependent Children (AFDC)).[8] It provided that if a state enacted an aid program for poor children in compliance with the minimum requirements set by the federal government, it would provide the state a matching grant to defray partial costs of the program.[9] Soon after the adoption of the new act, all the states enacted qualifying programs.[10]

B. Aid to Families with Dependent Children

By design, AFDC offered support to children of parents who had been widowed, divorced, separated, or never married along with the children of incapacitated wage earners, who were almost all fathers.[11] A child was considered “dependent” if she had been “deprived of parental support or care by reason of the death, continued absence from the home . . . or physical or mental incapacity of a parent . . . .”[12] From its inception, AFDC allowed states to set moral requirements for eligibility, which were enforced by social workers.[13] For example, many states enforced “suitable home” requirements for eligibility. A home was typically deemed unsuitable when a social worker disapproved of a mother’s sexual practices or when there was a “man assuming the role of spouse” living in the home.[14] In some states, the birth of an “illegitimate” child to a woman on welfare could automatically render the home unsuitable and result in the denial of benefits.[15] Expansion of social security benefits for widows, widowers, and children of deceased workers,[16] as well as the creation of disability benefits to totally disabled workers[17] and their dependents[18] relocated multitudes of would-be AFDC recipients to Federal Old-Age, Survivors, and Disability Insurance (OASDI) rolls.[19] Many presumed that once AFDC stopped supporting children of disabled or deceased parents, the program would peter out.[20] Their presumptions did not account for the growing numbers of welfare recipients who would not qualify for disability or social insurance benefits reserved for the “deserving poor.” The remaining AFDC recipients, the “undeserving poor,” grew more politically marginalized and socially stigmatized.[21] As Professor Stephen D. Sugarman stated at Yale Law School’s Symposium on Constructing a New Federalism, “While it has been good for widowed mothers to have separated themselves from other single mothers by winning a national program for themselves, doing so has influenced the social standing of the remaining single mothers.”[22] Until the 1960s, states continued to restrict the number of cases on the rolls of children with mothers divorced, separated, or never married. Cultural patterns, influenced by the low social standing of single mothers on welfare, yielded limited numbers of these “absent father” cases. However, in the following decades, adjustments in state laws,[23] changing ideologies about poverty, along with rising rates of divorce and out-of-wedlock births, resulted in about eight-five percent of the AFDC caseload being absent-father situations.[24]

II. Welfare Today

A. Changes that Prompted ‘Welfare Reform’

The purpose of welfare benefits has changed as family composition has changed. In the age of “mothers’ pensions,” single-parent families, the result of paternal death or abandonment, were thought to be regrettable but not condemnable. Benefits were provided to mothers so that they could stay home and care for their children, instead of being forced into the workhouse, the street, or, at the time equally unthinkable, the wage-earning workforce. With the advent of AFDC, the federal government demonstrated its support for families in need. In the illuminated foreground were the unfortunate children of deceased or incapacitated wage-earning fathers, but looming in the background were the children of divorced, separated, or never married mothers. The Social Security Act Amendments of 1939 and the 1950s removed the regrettable, yet acceptable, broken families from the welfare rolls, creating the two-tiered establishment of the deserving and undeserving poor. Though mothers who were single as a result of divorce or never marrying were thought of as less deserving, the government assented to their receipt of benefits as long as they behaved in accordance with government demands (e.g., suitable home, no man assuming the role of spouse in the house). As much as it was a means of supporting the poor, AFDC was also an attempt to control behavior of poor people, namely poor women.

Toward the end of the 1950s and early 1960s, a social/political/legal movement rose up in reaction to strict moral controls and selective distribution of welfare. The National Welfare Rights Organization united with poverty lawyers and neighborhood welfare rights groups to secure benefits as an entitlement, raise levels of benefits, and broaden availability of benefits to women heads-of-household.[25] Accordingly, new populations, like African-American women, began claiming rights to welfare.[26] The U.S. Supreme Court twice scrutinized the moralistic dimensions of states’ welfare eligibility rules and twice struck them down. First, in King v. Smith,[27] the Court invalidated Alabama's "substitute father" rule, which denied benefits to families with mothers who were "cohabiting" with men outside the bonds of marriage.[28] It held that every state participating in AFDC must furnish aid “with reasonable promptness to all eligible individuals.” Second, in New Jersey Welfare Rights Organization v. Cahill,[29] the Court struck down a New Jersey statute that limited dispensation of AFDC benefits to families comprised of a ceremonially married, opposite-sex adult couple and their “legitimate” children. The Court determined that this restriction violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against illegitimate children.[30] Around the same time that courts were resetting the parameters of poverty assistance programs, intellectuals were reconceptualizing poverty itself. Progressive thinkers articulated a new "culture of poverty" theory to account for the portion of the population that remained poor despite the economic boom.[31] It suggested that the poorest sub-group of the poor is culturally locked in destitution by a self-perpetuating cycle of indigence that passes resignation and dependence intergenerationally. The cycle was said to be caused by the lack of well paying jobs for African-American men and the pathological effects of urban ghetto subcultures, as well as the decay of the traditional family, the rise of female-headed families, and illegitimate births.[32] The poverty rights movement instilled new notions about the nature of poverty, prompted legal decisions liberalizing eligibility, and removed some of the stigma of needing to ask for government assistance.

Slackening AFDC restrictions were a reflection of relaxing cultural mores and changing demographic trends. As rates of divorce and numbers of women in the wage-earning workforce rose, so too did the number of female heads-of-household. Gradually, the general public’s social acceptance of women assuming such non-traditional gender roles grew. With the sexual revolution came the de-stigmatization of illegitimacy, yielding fewer “shot-gun weddings” and more out-of-wedlock births by choice.[33] Of course, not everyone celebrated these developments. Bridget Remington illustrated the contemporary conservative sentiment, “As long as women were victims, they deserved help, and welfare could properly be perceived as charity.” Yet, once women began living more independent of men – earning wages in the workforce, raising children without fathers, remaining single by choice – welfare was no longer perceived as society’s collective voluntary charity, but rather as governmental Robinhooding-gone-awry.[34]

Social movements and legal affairs of the late 1960s and 1970s shook up the existing composition of the Republican and Democratic parties.[35] The Radical Right and the Moral Majority were born in backlash to the New Deal and War on Poverty liberalization of public programs, the Civil Rights Act of 1964, Roe v. Wade,[36] women’s liberation, the sexual revolution, and resistance to the Vietnam War. The landslide Presidential election of 1980 swept in an committed conservative and signaled the political pendulum’s new direction.[37] In the 1980s, conservative think tanks developed the "underclass theory” version of the "culture of poverty" view.[38] The underclass theory argued that African-American female-headed families socialized children into a lifetime of “welfare dependency, school failure, addiction, extramarital sexual activity and adolescent pregnancy, crime, and alienation from ‘mainstream’ society.”[39] Conservative intellectuals, such as Charles Murray, claimed that welfare caused dependency and incentivized anti-social behavior and out-of-wedlock births.[40] Despite the fact that the numbers of women on welfare of African descent and of European descent were roughly equal, conservative commentary on poverty and government assistance concentrated almost solely on African-American mothers. During the Reagan era, welfare recipients were depicted as “welfare queens” (i.e., “African-American, long-term welfare recipients who live in inner-city ghettos and regularly have babies”).[41] Data reported to the public and through the media were skewed as to the ethnicities of welfare recipients, how many children they had,[42] and how long they stayed on welfare.[43] The common picture of a welfare recipient was a lifetime recipient, who did not work, did not desire to work, and procreated irresponsibly.[44]

By the 1990s, people were fed up with what they perceived to be a defunct and dysfunctional system; the American public equated welfare with Black female degeneracy.[45] It was not just the fiscal conservatives and the federalists who were calling for reform; Democrats and Republicans, alike, demanded change.[46] Those demands did not fall on deaf ears of those in office or running for office. In 1991, during a campaign speech, Bill Clinton vowed to “put an end to welfare as we know it.”[47]

B. Temporary Assistance for Needy Families

In August 1996, President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),[48] a reform that indeed "end[ed] welfare as we kn[e]w it."[49] The measure replaced old welfare programs, including AFDC, the Job Opportunities and Basic Skills Training (JOBS) program, and the Emergency Assistance (EA) program with block grants to states under the Temporary Aid to Needy Families program (TANF).[50] PRWORA ended federal entitlement to public assistance and aimed to cure the "pathology" of dependence, purporting to "convert . . . welfare into a helping hand, rather than a handout."[51] Today, under TANF, poor families are considered the lamentable result of laziness, irresponsibility, intergenerational traits, out-of-wedlock births, and unmarried mothers. PRWORA programs and TANF funding restrictions serve to disincentivize non-marital procreation, single motherhood, and absent fatherhood in an effort to shape recipients’ life decisions to form the nuclear ideal with traditional gender roles.

C. The Vision and Ambition of TANF

As the name, the legislative history, and the preamble suggest, PRWORA advances the promotion of self-sufficiency through the fostering of a strong work ethic among welfare recipients. The stated goals, programs, and provisions carry explicit and implicit messages concerning “morality, behavior and ‘deserving’ and ‘undeserving’ welfare recipients.”[52] PRWORA represents a re-commitment to the "preserv[ation] of the moral order – the work ethic and family, gender, race, and ethnic relations."[53] The provisions and manner of enforcement of welfare have traditionally signaled, at least somewhat subtly, which behaviors are deviant and which are virtuous.[54] PRWORA, on the other hand, is overt in its stigmatization of dependence and condemnation of out-of-wedlock birth and unmarried parents. Some critics say that the act “ascribes moral fault to one particular group: poor single mothers”[55] through its stated goals and underlying motivations. Along with the moral overtones proscribing lifetime dependence and unemployment, “[e]qually embedded in the law is a vision of socially desirable family formation, expressed in terms of individual sexual, reproductive, and childrearing goals.”[56]

For legislation about means-tested cash assistance, PRWORA focuses significant attention on family formation, revealing the normative vision underlying the valorization of marriage and demonization of poor single motherhood.[57] The goals illustrate congressional intent to use welfare “as a vehicle to change individuals' behavior and influence the reproductive choices of low-income women,”[58] in the name of strengthening families.[59] To begin with, consider the following congressional findings listed in the 1996 legislation:

(1) Marriage is the foundation of a successful society.

(2) Marriage is an essential institution of a successful society which promotes the interests of children.

(8)(f) Children born out-of-wedlock are [three] times more likely to be on welfare when they grow up.

(9)(h) The absence of a father in the life of a child has a negative effect on school performance and peer adjustment.

(9)(l) Neighborhoods with larger percentages of youth aged 12 through 20 and areas with higher percentages of single-parent households have higher rates of violent crime.

(10) Therefore, in light of this demonstration of the crisis in our Nation, it is the sense of the Congress that prevention of out-of-wedlock pregnancy and reduction in out-of-wedlock birth are very important Government interests . . . .[60]

To combat the so-called “crisis in our Nation,” Congress aims to achieve the following goals:

1. Provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;

2. End the dependence of needy parents on government benefits by promoting job preparation, work and marriage;

3. Prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies; and

4. Encourage the formation and maintenance of two-parent families.[61]

TANF block grants come with very few conditions. States may spend the money freely on programs in-keeping with and in promotion of one or more of the above-stated goals.[62]

D. Reforming Welfare Restrictions

1. Lifetime Limit

TANF imposes a lifetime limit of five years of assistance.[63] The statute mandates, in plain language, that once one member of a household has received benefits[64] for five years, the entire family is denied benefits so long as the expired family member lives in the household.[65] The Government Accounting Office (GAO) reports that this provision changes the “fundamental structure” of welfare by permitting a “full-family” cut-off once a single member has reached the sixty-month limit.[66] This rule triggers the fragmentation of the very families it purportedly aims to keep intact. It compels parents on welfare to choose between forsaking their children their parents’ care or forsaking them the family’s main, and often exclusive, source of income. The GAO report states that prior federal welfare law did not permit states to cut off a family’s benefits, as TANF does, “on the basis of sanctions or time limits.”[67] TANF excepts the following individuals from the sixty-month lifetime limit: 1) minor children;[68] 2) persons suffering from hardships, battery, or extreme cruelty;[69] and 3) Native Americans or Native Alaskans who live on reservations with unemployment rates of fifty percent or higher.[70] The exemption for minor children “suspends the clock” for minors who are pregnant or parents, but it does not protect other children from the loss of welfare benefits once their residential parent’s lifetime limit is met.[71] With regard to the second exemption, Congress defined battery and extreme cruelty but left “hardship” undefined, allowing states to retain the power to expand or constrict the parameters of hardship beyond the definition of “extreme cruelty.”[72] Section 617 of TANF, along with the legislative history of PRWORA, indicate that Congress intentionally delegated all power not explicitly reserved by the federal government to the states, giving them substantial discretion with which to flexibly shape policies to fit their specific needs.[73] Nevertheless, Congress did not give states full reign to use the hardship exception limitlessly; each state can exempt up to, but no more than, twenty percent of its average monthly caseload from the lifetime limit.[74] Any state that grants a hardship exemption to more than one in five families will lose five percent of their TANF block grant funding for the following year.[75] This restriction prompts states to define “hardship” narrowly so as to deter over-exemption.

2. Work Requirements

TANF recipients, with very few exceptions, must work outside the home as soon as they are “job ready” and absolutely or no later than two years after beginning to receive assistance. Work requirements differ according to family make-up.[76] For example, single parents must participate in work activities for a minimum of thirty hours per week, and two-parent families must participate thirty-five or fifty-five hours per week, depending on their circumstances.[77] TANF prohibits states from penalizing single parents who have children under six and are unable to find childcare.[78] Nevertheless, TANF mandates that each state meet two separate work participation rates, which are said to be a reflection of the state’s success at engaging adults on assistance in work activities.[79] The minimum overall work participation rate for each state was set at twenty-five percent in 1997, rose to forty percent in 2000, and to fifty percent in 2002 and years thereafter.[80] The minimum work participation rate for adults in two-parent families increased from seventy-five percent in 1997 and 1998 to ninety percent thereafter.[81] Should a state fail to meet the minimum work participation rates, it will face a monetary penalty, the amount of which is determined by the “degree of noncompliance.”[82] The Family Violence Option (FVO) allows states to waive work requirements for domestic violence survivors if complying with the requirements would impede the survivor’s ability to escape the batterer or if it “unfairly penalized the individual.”[83] The FVO requires states to develop screening processes for DV survivors and to refer them to counselors and other support services.[84]

E. Welfare Restrictions Reforming Families

Congress declined the opportunity to define “family” for purposes of providing assistance, thus, reserving definition for the states.[85] Nonetheless, its own conception of family seeps out through the values statements embedded in the PWRORA congressional findings and its initiatives, driven toward increasing marriage and two-parent families and decreasing non-marital sex and single parenthood. This section of the paper features a discussion of several regulations and incentives programs designed to achieve Congress’ goals, including abstinence-only-until-marriage education, Illegitimacy Reduction Bonus, Healthy Marriage Initiative, Fatherhood Initiative, so-called “family caps,” child support enforcement, and restrictions on minor-parent recipients of assistance.

1. Abstinence-only-until-marriage Sex Education

A new abstinence-only-until-marriage education initiative, section 510(b) of Title V of the Social Security Act (Title V), was quietly inserted into PRWORA without debate by Congress or the public. Title V provides a block grant to states, guaranteeing $50 million annually for five years (under the auspices of maternal and child health) for abstinence promotion in schools. Under the grant, states are required to match every four federal dollars with three state dollars, which results in a total annual expenditure of $87.5 million. For several years, California was the only state that did not apply for Title V funds. In 2004, Arizona and Pennsylvania joined California, as governors in those states rejected the funds. In addition to Title V, there are other federal funding streams and programs supporting abstinence-only education, including the Adolescent Family Life Act (AFLA)[86] and the Maternal and Child Health block grant's Special Projects of Regional and National Significance – Community Based Abstinence Education program (SPRANS-CBAE).[87] In order to qualify for Title V or SPRANS-CBAE funding, school programs must adhere to the eight-point definition of “abstinence-only.” Section 510(b) of Title V of the Social Security Act reads:

For the purposes of this section, the term “abstinence education” means an educational or motivational program which:

(a) has as its exclusive purpose teaching the social, psychological, and health gains to be realized by abstaining from sexual activity;

(b) teaches abstinence from sexual activity outside marriage as the expected standard for all school-age children;

(c) teaches that abstinence from sexual activity is the only certain way to avoid out-of wedlock pregnancy, sexually transmitted diseases, and other associated health problems;

(d) teaches that a mutually faithful monogamous relationship in the context of marriage is the expected standard of sexual activity;

(e) teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects;

(f) teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society;

(g) teaches young people how to reject sexual advances and how alcohol and drug use increase vulnerability to sexual advances, and

(h) teaches the importance of attaining self-sufficiency before engaging in sexual activity.[88]

Schools and outside program providers are not obligated to educate students about how to use the various Federal Drug Administration-approved contraceptive methods, or even to mention contraception for that matter. The definition does not require instructors to talk with students about any sexual acts other than vaginal intercourse. Distribution of the federal funds is not conditioned on any guarantee of non-discriminatory teaching methods that address same-sex sexuality or issues of sexuality and gender identity facing transgender and intersex students.

2. Illegitimacy Bonus

Nonmarital births in the U.S. have been on the rise for the last half-century. Many people consider this a societal failing, in itself, and the cause of other social ills.[89] (See Table 1) From 1999 to 2002, the Illegitimacy Bonus awarded $20 million annually to each of the five states that produced the greatest decline in their ratio of out-of-wedlock births to total births without increasing abortion rates from their levels in 1995.[90] The bonus stems from language in the preamble to PRWORA, but the illegitimacy ratios[91] are derived from the greater population, not only TANF recipients.

|Table 1: Nonmarital Childbearing[92] |

|[pic] |

|The percentage of births to unmarried women has increased |

|dramatically in the past six decades. |

|[pic] |

|[pic] |

|[pic] |

|Notes: Data for 1999 are preliminary. Figures are based on |

|weighted data rounded to the nearest individual.[pic] |

3. Marriage Initiative

Authorization for TANF ended September 30, 2002. A series of temporary extensions has prolonged the program since then.[93] In February 2002, President Bush announced his proposal for welfare reform reauthorization, called “Working Toward Independence.” One noteworthy part of the President’s proposal is the Healthy Marriage Initiative (HMI), complete with a $500million[94] price tag to fund it into fruition over the next five years. The mission of the HMI is: “to help couples, who have chosen marriage for themselves, gain greater access to marriage education services, on a voluntary basis, where they can acquire the skills and knowledge necessary to form and sustain a healthy marriage.”[95] The funds are to be used by states, territories, and tribes to “conduct research and demonstration projects, and provide technical assistance primarily focusing on family formation and healthy marriage activities.” In addition, the Administration proposed the creation of a separate $100 million dollar-for-dollar matching grant to states, territories, and tribes to “develop innovative approaches to promoting healthy marriage and reducing out-of-wedlock births.” Along the lines of the President’s suggestions, two bills were introduced in the 109th Congress: H.R. 240,[96] the Personal Responsibility, Work, and Family Promotion Act of 2005, and S 667, the Personal Responsibility and Individual Development for Everyone (PRIDE) Act.[97] Both welfare reauthorization bills include $100 million of funding for marriage promotion.[98]

4. Fatherhood Initiative

As part of TANF reauthorization, the President proposes an edit to the goals, such that the fourth goal would read, “encourage the formation and maintenance of healthy two-parent married families and responsible fatherhood."[99] States already have the flexibility to use TANF funds to develop programs promoting involved fatherhood, and almost half already do.[100] In addition, the Department of Health and Human Services already funds a variety of programs to promote “responsible fatherhood,” a term it uses to refer to helping fathers “establish positive relationships with their children, provide financial and emotional support, and develop responsible parenting skills.”[101]

5. Child Support Enforcement Cooperation

The child support enforcement program ascertains paternity, fixes child support orders, and collects child support from obligors. It was originally created to reimburse the federal government for welfare payments to families owed unpaid child support.[102] TANF recipients are required to cooperate with paternity identification and child support enforcement, unless they can establish good cause for noncooperation.[103] PRWORA streamlined procedures for voluntary paternity establishment for nonmarital births. Establishment of paternity usually takes place in the hospital, immediately following the birth of a child but before the family is actually involved in the child support enforcement system.[104] PRWORA also changed the procedure for child support collection by requiring employers to report all new hires to the state child support enforcement program to be cross-checked with the list of obligors.[105] If there is a match, wages of child support obligors can be withheld automatically from their paycheck, should they fail to pay. If the state collects child support on behalf of a family on assistance, the state determines the amount of the collections it will give to the family (pass-through) and the amount that it will count when calculating TANF benefits (disregard).[106] In pre-PRWORA days, states were mandated to pass-through the first $50 of child support collected to the family on assistance. PRWORA eliminated that requirement.[107] Today, states pass-through divergent amounts to the families. Any money that is passed through must come out of the state’s share of the collected money, which disincentives pass-through.

6. Child Exclusion Policies

The so-called “family cap”[108] is a provision that excludes children born into families already on assistance, or conceived by mothers on welfare, from welfare eligibility, regardless of the increase in family size.[109] “It is predicated on the notion that welfare recipients have children in order to increase the size of their monthly grants, and that economic penalties will encourage ‘responsible’ child-bearing decisions.”[110] Child exclusion proponents advocated for a mandatory cap as part of TANF. Reproductive freedom advocates and welfare rights organizations protested the caps, on the basis of their imposing restrictions on recipients’ reproductive freedom. In addition, social conservatives and anti-abortion groups voiced concerns that the family cap could increase abortion rates among welfare recipients. Ultimately, Congress concluded that PRWORA should neither prohibit nor mandate caps, but rather leave it up to the states to decide whether to adopt such policies. According to a study by the Center for Law and Social Policy (CLASP), twenty-three states[111] have some version of a family cap in place today (see Table 2). Five states have earlier return-to-work requirements for mothers of “capped” children.[112] Most states exempt from family cap sanctions children conceived as the result of rape, incest, or domestic violence.[113] California also exempts children conceived as the result of a contraceptive failure.[114]

|Table 2: |

|Family Cap Policies in the States[115] |

|State |Cash increment denied |Benefits reduced or restricted |Flat grant to families |

|Arizona |X |  |  |

|Arkansas |X |  |  |

|California |X |  |  |

|Connecticut |  |X* |  |

|Delaware |X |  |  |

|Florida |  |X* |  |

|Georgia |X |  |  |

|Idaho |  |  |X |

|Illinois |X |  |  |

|Indiana |X |  |  |

|Maryland |  |X† |  |

|Massachusetts |X |  |  |

|Mississippi |X |  |  |

|Nebraska |X |  |  |

|New Jersey |X |  |  |

|North Carolina |X |  |  |

|North Dakota |X |  |  |

|Oklahoma |  |X‡ |  |

|South Carolina |  |X‡ |  |

|Tennessee |X |  |  |

|Virginia |X |  |  |

|Wisconsin |  |  |X |

|Wyoming |X |  |  |

|*Traditional cash increment is reduced but not completely denied. †Cash award is provided to a third party for administration, |

|rather than directly to the family. †Vouchers to purchase food, clothing and other necessities are provided in lieu of the cash |

|increment. |

PRWORA gave states the go-ahead to promote family planning and encourage mothers on welfare to give up their children for adoption. In 2004, fifteen states had integrated family planning information and counseling initiatives into their TANF programs. Three states created programs devised to encourage welfare-reliant mothers to relinquish their newborn children to adoption services; two states offered cash incentives for so doing.

7. Teen Parents

Though teen parents account for only five percent of the whole welfare caseload, policymakers’ fixation on teen parents has solidified in the last twenty years.[116] This burgeoning interest has resulted from empirical evidence interpreted as suggesting that a) unmarried women who become teen mothers have a propensity to need public assistance, and b) the teen birthrate is spiraling out of control.[117] A 1990 Congressional Budget Office report indicated that almost seventy-five percent of unmarried teen mothers became AFDC recipients within five years of giving birth. Nonetheless, about twenty-five percent of married teen mothers became AFDC recipients during the same period.[118] Alternative ways of interpreting these statistics and the correlation between poverty and teen pregnancy will be discussed later in this paper.

TANF imposes particular requirements on teen parents. In order to receive benefits, unmarried minor parents are mandated to participate in educational and training activities, and they must live either with a “responsible adult” or in an “adult-supervised setting.”[119] Opponents assert that the requirement could put teen mothers at risk of abuse or neglect. Forty-four states have responded by allowing teen mothers to opt for a more independent living arrangement with state approval. All states and the District of Columbia regard living with adult relatives, other than parents, as meeting the requirement.[120]

III. Critique

A. TANF’s Inefficacious Programs Will Not Achieve Desired Results.

PRWORA’s framers will not accomplish their stated goals through the ineffective programs they have designed. Inherent in most of their program formation is an erroneous assumption of the rational actor model. First, welfare recipients are not making personal decisions, regarding sex, marriage, and procreation, based on economics alone. Second, decisions are not necessarily objectively ‘rational’ given the desperate nature of their destitute circumstances. In general, policymakers display a pervasive misunderstanding of, indifference to, or disdain for the practical realities driving the decisions and directions of welfare recipients’ lives and livelihoods.

Goal 1: Provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives[121]

The paradox here is plain: PWRORA work requirements demand that single and married parents work in the wage-earning labor force as soon as they are “job ready,” whether or not this prohibits them from caring for their children in their own homes. The sentiment of this goal harkens back to the principal motives for Mother’s Pensions, yet it sets up a conundrum absent in earlier welfare policies.[122] A parent who has exhausted her welfare eligibility and has no willing relatives cannot simultaneously earn wages in the workforce and provide residential childcare. If in-home caretaking is the priority, then why demand that single parents work? In the alternative, if wage earning is the true priority, then why not fully subsidize high-quality day care outside the home for welfare-to-work parents?[123] Congress acknowledged the necessity of subsidized childcare in enabling mothers to leave welfare for wage-earning work. The Child Care and Development Fund offers states funds to increase the “availability, affordability, and quality of childcare services” to TANF recipients who participate in work-related activities.[124] States have discretion in setting childcare policies and in allocating federal funds. TANF increased previous allocations for childcare by $4 billion to the tune of $20 billion annually between 1997 and 2002.[125] Additionally, the Child and Dependent Care Tax Credit gives low-income working parents a small tax reduction for childcare expenses.[126] The number of children served has more than doubled between 1996 and 2001.[127] Nevertheless, PRWORA actually created a shortfall in childcare because the number of families in need of subsidized care increased due to work requirements. Today, the demand far exceeds the supply provided by the federal grants. In 2000, only one in seven eligible children received childcare aid.[128] In October 2003, New York City had a waiting list of over 50,000 in need of day-care and after-school programs.[129] Funding, albeit enhanced, remains inadequate. The deficiency impedes welfare recipients’ transitions into the marketplace. Childcare becomes a “perpetual emergency,” making it nearly impossible to meet the demands of full-time employment, especially jobs with non-traditional or inflexible hours.[130]

Goal 2: End the dependence of needy parents on government benefits by promoting job preparation, work and marriage[131]

As long as the federal minimum wage remains so low that it cannot support an individual, let alone a stay-at-home parent and children, not even an extraordinary rise in the marriage rate is going to eliminate the need for government assistance.

Furthermore, the big marriage push does not end dependence, only dependence on the government; thereby prodding and perpetuating women’s economic dependence on men.[132] It essentially transfers women’s dependence from taxpayers to husbands. “Poverty itself is very much a women’s issue, and so is welfare.”[133] Women are forty percent more likely than men to be poor,[134] and women comprise ninety percent of the adult welfare caseload.[135] Given the drastic gender imbalance of adult welfare recipients, this goal clearly encourages a renaissance of the male breadwinner/female homemaker model. It is a “specialized” labor division that, while still failing to hearten gender equity, would likely gain a more favorable reception if it could actually sustain most families. This goal was generated from the perspective of privileged policymakers and based “on a romanticized middle-class quest for entrance into elite professions, rather than on the women who are exploited as a source of cheap labor.” The low-wage jobs available to unskilled women workers do not bring the self-respect and fulfillment associated with salaried positions.[136] Under AFDC, it was practically “foolhardy” for most single mothers to voluntarily leave the welfare rolls, because they would be relinquishing much needed services for their children, which they would not be able to afford through the low-wage jobs available to them. TANF allows recipients to keep differing amounts of their earned income without having their benefits reduced, thereby elevating the practical value of employment for TANF recipients.[137] Welfare reform reduced work disincentives by allowing recipients to keep more of their earnings, providing job training, and setting benefit cut-offs. However, “[t]here is a difference between removing disincentives to paid employment and making paid employment a viable means of supporting a family.”[138]

Welfare reform does not do enough for welfare-to-work recipients in the way of improving real earning capacity, because the goals is to decrease the size of welfare rolls – not to increase single mothers’ economic security.[139] Research conducted after welfare reform demonstrates that the jobs welfare-to-work recipients attained did not pay enough to raise their families above the poverty line.[140] While employment is not enough to lift former welfare families out of poverty, it may lift them to such a level that they no longer qualify for Food Stamps or Medicaid. Moreover, the jobs poor, unskilled women tend to find offer few benefits and irregular hours that are incompatible with caregiving or childcare.[141] Advocates of welfare reform insist that simply by encouraging mothers to work, TANF improves their self-esteem and sense of worth, which in turn has positive cognitive and social benefits for their children. This presumes that whatever the type of work a welfare recipient can attain – no matter what the conditions – makes them a better role model than a stay-at-home parent and benefits their families more. TANF fails to recognize, as mothers’ pensions did, motherhood as a contribution to society, in and of itself. Gwendolyn Mink, welfare historian, observes, “[I]t insists that single mothers are worth more outside their homes than in them.”[142] Welfare-to-work program materials treat wage-earning work as the only source of positive maternal self-perception and worth; yet, program participants maintain that motherhood is the most rewarding and uplifting part of their lives.[143]

Goal 3: Prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and reducing the incidence of these pregnancies[144]

This goal is problematic for many reasons. First, it denies the reality of unmarried women choosing to procreate and having wanted children. It devalues poor, unmarried women’s motherhood. And, it ignores competing governmental policies affecting reproductive healthcare and restrictions on reproductive freedom that bar women from exercising full control over their reproductive capacities. The goal of preventing and reducing unwanted nonmarital births is completely at odds with the realities of access to and funding for family planning services for poor and low-income women.

Some authorities on the subject believe “out-of-wedlock-pregnancy” is merely code for teen pregnancy.[145] Contrary to mistaken notions, the general-population birthrate and the teen birthrate have been on a general decline in the U.S. for three decades. Though, in the late 1980s and early 1990s there was a noticeable upward trend in teen births, during the economic recession.[146] Then it resumed its previous downward trend, declining every year since 1991. This isolated period of increased teen births may have been taken out of context and used to justify the restrictions on minor parents. Lack of familiarity with these broad demographic trends “may have led politicians to form incorrect diagnoses of problems and, consequently, develop inappropriate solutions.”[147]

The mandatory living arrangement for teen mothers on welfare is premised on the notion that teenagers who wish to move out of their parents’ homes will get pregnant and have children in order to reap the welfare benefits and, hence, gain the independence of living on their own.[148] The premise of this mandate is out of touch with reality. Many low-income teenagers favorably factor their own parents’ support and caretaking capabilities into their childbearing decisions.[149] In other words, it is not a negative association with the idea of living in their parents’ homes that drives teenagers to become parents as a means of escaping the undesirable situation. On the contrary, it is a positive association with the idea of living in their parents’ homes that heartens teenagers to have their babies while in the comfort and security of the family home where there are role models to guide them and additional caregivers to share the burdens.

Young men and women are not receiving the comprehensive, medically accurate, age-appropriate sex and sexuality education that they need in order to navigate the sexual landscape safely. By pouring hundreds of millions of dollars into abstinence-only education, policymakers are making it that much more difficult for young, unmarried persons to practice safe sex and avoid unwanted pregnancies. A recent congressional report evaluating the content of abstinence-only education programs reported that more than eighty percent of those surveyed contained false, misleading, or distorted information about the risks of sex.[150] Inaccurate information makes teens more vulnerable as they maneuver the potentially hazardous terrain of adolescent sexual experimentation and more likely to make unsafe decisions about their sexual behavior.[151] Most abstinence-only programs deliver their message through rigid, antiquated gender stereotypes,[152] which tend to deny female sexuality entirely while placing the onus of chastity almost exclusively on the young woman. These programs endorse marital sex as the only acceptable form of sexual expression, thereby marginalizing gay, lesbian, and bisexual students who are, in forty-nine states, forbidden from marrying their same-sex partners. The programs further stigmatize homosexuality by addressing same-sex sexuality only within the contexts of promiscuity and sexually transmitted infections.[153] Many programs apply federal funds to the promotion of religious dogma,[154] which has drawn criticism and accusations of violating the Establishment Clause of the First Amendment. Above all, there is no evidence that teenage students in abstinence-only programs actually abstain from intercourse longer than those in comprehensive programs. In fact, eighty-eight percent of students who vowed virginity-until-marriage through abstinence-only programs, such as The Silver Ring Thing, engaged in premarital intercourse.[155] Furthermore, students of comprehensive sexuality classes do not have more sex, have sex earlier, or have more sexual partners than their peers in abstinence-only classes. To the contrary, studies indicate that these students delay the onset of sex, and when they do have sex, they are more likely to use contraception and use it more consistently.[156] PRWORA does not provide any federal funds for comprehensive sex and sexuality education, which has proven more effective in delaying adolescent sexual activity and promoting the use of contraceptives – consequences that might actually decrease the nonmarital birthrate.

Additionally, unless a poor woman qualifies for Medicaid and lives within accessible distance of a Title X family planning clinic, she will encounter major difficulties in consistently procuring highly effective contraception. In the event of an unwanted pregnancy, even more obstacles stand in the path of poor women seeking abortions, including mandatory waiting periods, biased counseling requirements, parental notification, and sparse availability of the handful of remaining providers. Poor and low-income women who wish to terminate unwanted pregnancies must pay for them out-of-pocket;[157] and, most cannot afford the procedures. Given the realities of access to family planning, how is any poor woman – single or married – supposed to successfully avoid procreation without effective means to control her reproductive destiny such that it meets the goals of TANF?

With regard to the role of family caps in reducing nonmarital births, opponents argue that the minuscule increase in benefits normally accompanying a birth is too small to actually be a factor in an assisted woman's decision to have an additional child.[158] For example, according to the Alan Guttmacher Institute, “In 1997, monthly increases for an additional child ranged from about $24 in Mississippi to $109 in California,” which is grievously inadequate to accommodate for the increased costs of an additional child, let alone lure someone into pregnancy, child birth, and extended parenthood.[159]

Research on the effects of child exclusion policies has generally been negative or inconclusive.[160] In September 2001, the General Accounting Office stated that it could not conclude that the policies reduce the incidence of nonmarital births, affect the number of abortions, or decrease the TANF caseload.[161] Since then, several other studies have consistently concluded that the child exclusion policies do not systematically influence women’s childbearing decisions.[162] More children are excluded than childbirths avoided, indicating that the policies have more of a punitive than deterrent effect. Moreover, related research has uncovered a particularly disturbing possible link between states with child exclusion policies and states with large African-American or Latino populations.[163]

Rather than misinforming our youth about sex, denying poor women access to a full range of family planning services, unduly restricting young mothers, and uselessly excluding children from welfare eligibility, policymakers would advance their goal of decreasing nonmarital births much more swiftly by ensuring comprehensive, accurate sex education and availing contraception and other family planning services to poor women who wanted them so that they have actual reproductive “choices” and may make the best decisions for themselves and for their families.

Goal 4: Encourage the formation and maintenance of two-parent families.[164]

The set of stated goals is internally paradoxical. The second goal, to end “dependence of needy parents on government benefits,” is inconsistent with the first goal, to allow children to be “cared for in their own homes.” The fourth goal proposes the solution to the riddle: poor women need only marry and create two-parent families in order to have the resources they need for their children. Conservative welfare reformers suggest that marriage is the ideal anti-poverty program – a veritable panacea.[165] As an integral part of the family values agenda, “turning the tide on marriage is seen as the meta-policy that will redress many social ills.”[166]

There is gross misjudgment, on the part of welfare reformers, of the relationship between poor women’s economic security and marriage. The reality is that poor and low-income women choose not to marry in part because they are not economically self-sufficient. They are not interested in marrying in order to become self-sufficient. “The thesis that marriage will reduce poverty puts the cart before the horse. Research shows that economic security produces stable marriages, not that marriage itself secures women’s economic welfare.”[167] A positive association between financial security and marriage shows that by increasing people’s income-earning potential and actual income heightens their likelihood of marrying.[168] Without providing better-paying jobs to welfare recipients and their potential spouses-to-be, marriage initiatives will not actually have much of an effect. Kathryn Edin and Maria Kefalas interviewed 165 low-income single mothers about why they “have children they can’t afford, and why they don’t marry.”[169] The women expressed interest in marrying, but believed that it was only appropriate for economically stable couples. They wanted the ability to purchase the house, furniture, car, wedding ceremony, and other material rudiments for marriage. Beyond that, the women emphasized the importance of their own financial stability, derived from both income and assets, as a prerequisite for marriage. Economic independence from their husbands was said to provide insurance against marital failure, the loss of power within the relationship, and economic depravity resulting from divorce.[170] These women expressed concerns about their financial dependence granting their husbands (perceived) license to insist on adherence to traditional gender norms in the household and other controlling behavior. Their study concludes, “Thus, many poor single mothers have rejected the male breadwinner ideal and hinge their decisions to marry on their own economic security.”[171]

Regrettably, this is not the reasoning shared by marriage-initiative promoters, many of whom rationalize that if men earn more than women in the workforce and men’s families are better off financially, “then poverty can be cured by the presence of a male income in families.”[172] This calculation completely “short circuits” gender equality by ignoring the alternative approach of improving women’s financial situations in order to improve families’ economic lots.[173] Furthermore, marriage initiatives presume that there is a marriage pool of employed, financially stable men available to women on TANF.[174] In reality, pools of proximate, marriageable men have been decimated by unemployment, inherited poverty, declining job opportunities for low-skilled workers, and incarceration.[175]

Contrary to popular notions among welfare reformers, marriage is no guarantee against needing public assistance. In fact, after a decade of decline, the rate of low-income children with married parents has been on the incline since 2000. (See Table 3). In 2003, among children with married parents, twenty-seven percent were low income, and nine percent were poor. Studies have shown that most poor women will remain poor even after marrying and earning wages in the workforce.[176] If their spouses cannot contribute to the household income, marriage could actually reduce these women’s economic position and stability.[177]

Goal-oriented policymakers would be wise to apply the $100 million slated for the marriage initiative, as well as the tens of millions spent by states on fatherhood initiatives, toward the economic advancement and security of welfare recipients.[178] Poor women and men do not need to be enticed into choosing marriage, but they do need financial security before they will choose marriage. It is not their serial single status that perpetuates their poverty, but rather their permanent poverty that perpetuates their single status.

Table 3: [179]

[pic]

B. TANF Rhetoric, Regulations, and Restrictions Infringe on Individual Liberties.

Not only are reformed welfare regulations and programs questionable as effective means to Congress’ ends, but so too are some of the ends questionable as appropriate areas of State intervention. Congress’ goals for TANF inject the State into the most private realms of its citizens’ lives and trammel on welfare recipients’ rights to volitional family formation and reproductive freedom. Through the welfare scheme, the government is, in effect, conditionally controlling people’s behavior in ways that would otherwise be unconstitutional. TANF regulations violate welfare recipients’ constitutional rights by conditionally demanding either performance or restraint of certain behaviors in exchange for cash assistance – behavior that the government could not and would not demand of financially independent citizens.

Some might argue that when a person approaches the State, seeking assistance that the State is under no mandate to provide, then the State should be able grant that assistance conditioned on conformance with behavior that the State deems to be in the best interests of the public.[180] Many proponents of welfare reform feel that if society is to financially support people who are not stable enough to support themselves, then society is entitled to require of that beneficiary certain stability-enhancing behaviors. However, the doctrine of unconditional conditions[181] prohibits exactly this.

1. The Doctrine of Unconstitutional Conditions

The Supreme Court first recognized the unconstitutional conditions doctrine in 1926 in Frost &Frost Trucking Company v. Railroad Commission of California, in which it held: “If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.” In more recent years the Court expanded on this principle, explaining that while the government is not obligated to provide the public with a certain benefit, conferral of said benefit may not be conditioned on the sacrifice of one’s constitutional rights. In Liquormart, Inc. v. Rhode Island,[182] the Court stated, “Even though government is under no obligation to provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit may be conditioned on the surrender of a constitutional right.”[183] In that case, the Court found that liquor retailers did not give up their right to freedom of speech when the state conferred on them a license to sell alcohol.

The unconstitutional conditions doctrine forbids the government from abridging individuals’ constitutional rights through a conditioned benefit, meaning that it cannot bribe its citizens out of their constitutional rights. In other words, the doctrine prevents the State from “doing indirectly what it could not do directly.”[184] PRWORA eliminated the entitlement to cash assistance, therefore freeing the government of an affirmative obligation to provide such benefits to its indigent citizens. All the same, as evidenced in Liquormart, it does not have free license to attach conditions to receipt of even non-compulsory benefits that would otherwise be unconstitutional.[185]

2. Confusing Application of Unconstitutional Conditions Doctrine in Cash-assistance Cases

The Supreme Court has applied the unconstitutional conditions doctrine inconsistently and without explanation as to when, why, or how the doctrine shall be applied. The inconsistency of the use and application of the doctrine is notable in the differing results of four cases involving possible non-exercise of constitutionally protected rights in exchange for government assistance. Sherbert v. Verner,[186] Shapiro v. Thompson,[187] Dandridge v. Williams,[188] Wyman v. James,[189]and Maher v. Roe.[190] each present a classic unconstitutional-conditions scenario; however, the outcomes and reasoning differ significantly from case to case.[191]

In Sherbert,[192] a South Carolina plaintiff challenged a state statute that disqualified her from receipt of unemployment benefits because her religion forbade work on Saturdays. She appealed the South Carolina Supreme Court’s decision upholding the statute as not violating her constitutional liberties because it did not restrict her religious freedom or prevent her from observing her beliefs. The U.S. Supreme Court disagreed, finding that the disqualification from benefits did impose a burden on the plaintiff’s free exercise of religion. It declared that the state court’s ruling pressured her to choose between sacrificing her religious practice to receive unemployment benefits and sacrificing the benefits to follow her beliefs.[193] The opinion goes on to clarify that constitutional rights may not be abridged conditionally on the basis of a benefit being a privilege, rather than an entitlement:

Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's ‘right’ but merely a ‘privilege.’ It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”[194]

While the Court did not explicitly mention unconstitutional conditions in its opinion, it did cite a law review article on the doctrine.[195]

Shapiro involved states' restrictions on AFDC funds to only those people who had been residing in the state for more than one year.[196] The Court dismissed states’ argument that unconstitutional conditioning was allowable because AFDC benefits were a privilege, not a right.[197] The Court acknowledged the “fundamental” nature of the right to travel and noted that “a durational residency requirement would have a chilling effect on the right to travel.”[198] Thus, the restriction was seen as an actual penalty, rather than a nonsubsidy, on the exercise of a constitutional right, which called for a compelling state interest to justify the penalty. No such interest was demonstrated, and the statutes were struck down.[199]

Dandridge addressed Maryland’s maximum-grant regulation limiting the total amount of AFDC-related cash assistance any family unit could receive – regardless of its size.[200] The plaintiffs had large families whose standards of need substantially exceeded the aid they received under the family cap.[201] They alleged that Maryland’s maximum-grant regulation violated the Federal Social Security Act and the Equal Protection Clause of the Fourteenth Amendment.[202] In a close decision, the Court held that the family cap was consistent with both the Act and the Clause.[203] Despite the obvious implications of Maryland’s family cap on welfare recipients’ fundamental right to determine their family composition, and more specifically their right to procreate, neither the plaintiffs nor the justices invoked the unconstitutional conditions doctrine for analysis.

In Wyman, the Court considered the right of welfare recipients to be free from unwarranted house searches under the Fourth Amendment.[204] At issue was the home-visit requirement for receipt of AFDC benefits. The Court upheld the constitutionality of the requirement, reasoning that visitations were not "forced or compelled" and that prospective recipients were free to refuse a visit.[205] Of course, the consequence of refusal was not receiving financial assistance. The Court determined that without forced entry the home visits did not amount to searches. Assuming, argüendo, that the home visit did qualify as a Fourth Amendment search, the Court applied the standard of unreasonableness. It determined that mandatory home visits were not unreasonable, considering the public’s interest in “assuring the needs of the dependent child were met and that charitable funds were being spent properly.”[206] Not everyone on the Court agreed with this reasoning, however. In his dissent, Justice Douglas distilled the case to the following pivotal question: "Whether the government by force of its largesse has the power to 'buy up' rights guaranteed by the Constitution."[207] Justice Douglas reminded the Court of the doctrine of unconstitutional conditions, stressing that, "but for the assertion of her constitutional right," the plaintiff would have been entitled to receive welfare benefits.[208]

Maher dealt with a Connecticut statute that limited Medicaid payments for abortions to “medically necessary” procedures performed during the first trimester.[209] The Court applied similar reasoning as that of Shapiro but reached the opposite conclusion. It stressed that it had previously recognized "a constitutionally protected interest 'in making certain kinds of important decisions'" free of interference by the government.[210] It distinguished between placing an obstacle in a woman's path to choose abortion, which would be unconstitutional governmental interference, and disincentivizing abortion by funding childbirth and not abortion.[211] In upholding the statute, the Court stated that the statute did not place indigent women at a disadvantage, because they were free to seek private funding for their procedures.[212] In Maher, the Court drew the line between impeding exercise of the right to choose and not subsidizing exercise of the same right.[213] While both the holding and dicta smacked of unconstitutional conditions language, the doctrine was not formally addressed.

These five cases, when viewed collectively, showcase the perplexing treatment of the doctrine of unconstitutional conditions, or lack thereof, in government assistance cases. Though they present the same type of quandary as the others, Dandridge and Sherbert do not expressly raise the doctrine. While Maher and Shapiro appear to draw a line between not enabling and punishing exercise of a fundamental right, Wyman comes along and blurs it.[214] Although Wyman’s assertion of her Fourth Amendment right resulted in punishment – the diminution of cash assistance she needed to survive and raise a family – the Court likened the government’s response to a nonenabling, as though the plaintiff merely passed up a benefit by exercising her free choice.[215]

3. A Theory to Reconcile the Inconsistencies

Confounded commentators have attempted to schematize the Court’s application of the doctrine with various theories, the most common of which is a penalty-nonsubsidy distinction.[216] Under this theory, the Court distinguishes between the government penalizing the exercise of a right and failing to subsidize the exercise of a right, as demonstrated in Maher and Shapiro. This distinction calls for broad judicial speculation about the lives of the people most affected by conditions. Moreover, to the person wishing to exercise her right, the difference between a penalty and a nonsubsidy is often merely semantic, as the outcome for her is, in effect, the same.[217] The treatment of the unconstitutional conditions doctrine in the five abovementioned cases reveals that this theory is not altogether reliable in predicting the outcome of cash assistance cases. For example, the theory may not be applied, as in Dandridge, or may be misapplied, as in Wyman, where a penalty was treated as a nonsubsidy.

Professor Lynn Baker has articulated a more useful theory that the Supreme Court applies a two-prong test of the unconditional conditions doctrine in public-assistance cases.[218] The first prong asks whether the condition “involves” a constitutionally protected activity. If so, the second prong asks whether the condition causes a person relying on public assistance for survival to pay a “higher price” for participation in that activity than a similarly situated person who does not rely on public assistance for survival. Baker’s theory recognizes the fact that welfare recipients, and other individuals relying on public assistance for subsistence, are not operating as rational thinkers in a free market. “Facing desperation, poor people will trade in their rights for a chance to survive.”[219]

4. Baker’s Theory Applied to Welfare Reform

In applying the two-prong test to the rights in question, it becomes apparent that there is a strong case for violation of the doctrine of unconditional conditions by particular TANF restrictions.

a. First Prong: Constitutional Rights at Stake

Volitional family formation encompasses a wide array of civil liberties, including the right to privacy, the right to assemble, equal protection, substantive due process, the right to (not) procreate, and the right to (not) marry the person of one’s choosing. For purposes of brevity and specificity, I will concentrate on two equally fundamental but lesser acknowledged liberties, falling under the umbrella of volitional family formation: the right to procreate and the right to not marry, which are targeted by two particular welfare programs: child exclusion policies[220] and marriage initiatives.[221]

i. The Right to Procreate

The Supreme Court first recognized the right to procreate in Skinner v. Oklahoma, when it declared it “a sensitive and important area of human rights.” In Skinner, the Court defended the right to procreate of a person convicted twice or more of felony crimes of moral turpitude. As Laura Friedman points out, “If convicted felons cannot be stripped of this right, it is difficult to condone taking it away from law-abiding citizens simply because they are poor.”[222] While the government can deny felons the right to vote, it cannot deny them the right to have children, which suggests the fundamental, permanent nature of this right. Therefore, it is that much more unconscionable that the government could and does conditionally deny this right to poor people through welfare child exclusion policies. In Eisenstadt v. Baird,[223] the Court struck down a Massachusetts statute limiting distribution of contraception to married couples on equal protection grounds. Furthering the notion of the fundamental nature of procreative issues, Justice Brennan wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[224]

ii. The Right to Not Marry

While the Supreme Court has not expressly acknowledged the right to not marry, it has fervently defended the converse as a deep-seated right. In Loving v. Virginia,[225] the Court referred to the freedom to marry as a vital personal right “essential to the orderly pursuit of happiness by free men.”[226] The Court further stated that under the Constitution, “the freedom to marry, or not marry, a person . . . resides with the individual and cannot be infringed by the state.”[227] Though the impetus of this case was a statute infringing on the right to marry the person of one’s choosing, the Court referred to the reciprocal right – to not marry a particular person – as a decision belonging to the individual that cannot be commandeered by the state. In 1978, the Supreme Court drew on the holding of Loving to strike down a Wisconsin statute that withheld marriage licenses from noncustodial parents who had not been paying child support in accordance with orders.[228] In Zablocki v. Redhail,[229] the Court reasoned that because the statute restricted exercise of a fundamental right, as it had been identified in Loving, a “critical examination” of the state’s interests was necessary. Wisconsin’s interest in the welfare of children owed child support was found to be legitimate and substantial but not strong enough to abridge an individual’s right to marry.[230] Thus, a state may not impede the family composition choices of even child-support evaders who withhold from their children court-ordered financial support; the right of individuals to marry trumps the state’s interest in the wellbeing of their children.[231] It does not require a magnificent logical leap to understand how the reciprocal of this acknowledged right is equally fundamental.

b. Second Prong: Welfare Recipients Paying a Higher Price

As established in the preceding sub-section, the policies of child exclusion and marriage initiatives do implicate constitutionally protected activities. The former affects recipients’ right to procreate and the latter their right to not marry by potentially withholding life-sustaining funds from families that conceive while receiving welfare benefits. At this juncture, the government has not fully activated “bridefare,” but marriage as a prerequisite of welfare eligibility is not entirely inconceivable.[232] Should policymakers continue on the current trajectory, one can imagine future welfare reforms under which TANF eligibility for a child born to a mother on assistance, or continued eligibility for a mother who conceives and bears a child while on assistance, is conditioned on her marrying the child’s father.[233] Welfare recipients pay a much higher price to engage in these constitutionally protected activities than do non-recipients. In states with child exclusion policies, mothers who have children while receiving public assistance will be forced to support bigger families with less money per person. On the contrary, when a mother in a “working family” has an additional child, she receives an additional tax deduction[234] to defray the costs of raising the additional child. Under the hypothetical “bridefare” policy, welfare-dependent women who refused to marry the biological fathers of their children will be denied benefits; whereas financially solvent mothers are free to choose not to acknowledge their children’s fathers without the consequence of destitution.[235] Under child exclusion and mandatory marriage programs, welfare recipients can pay an exorbitant price – sometimes the absolute loss of their income – just to exercise their implied constitutional right to self-determination in family formation.

The doctrine of unconstitutional conditions prohibits the government from attaching to the receipt of a benefit a condition that forces an indigent person to pay a higher price than a non-indigent person for the exercise of the same constitutional right.[236] Thus, TANF’s child exclusion and marriage initiatives do not withstand analysis under this doctrine, for the reason that, under these programs, the cost of exercising one’s right to volitional family formation is much greater for a prospective welfare recipient than it is for a financially independent person.

Conclusion

The government has exceeded its authority by conditioning the receipt of cash assistance on a welfare-dependent woman’s sacrifice of her constitutionally protected determine her family composition, specifically her reproductive rights and right to not marry. It would be wise to reconfigure conditions of welfare eligibility so as to promote true sustainable economic independence and family security without infringing on recipients’ fundamental rights. Furthermore, the State should facilitate the voluntary creation and flourishing of all families, regardless of income level or composition. Welfare policy needs to be redirected so that it values families more than so-called “family values.” As they stand today, the goals, regulations, and programs of TANF are ineffective, offensive to notions of freedom and fairness, and unconstitutional.

-----------------------

[1] The underlying message of the “family values” agenda is that families falling outside the narrow class of the traditional nuclear family, those with never-married parents, single parents, same-sex parents, or no parents at all, are not equally valued by our society. This attitude shows up as little more than rhetoric on the radar screens of financially independent non-traditional families. However, the attitude and the agenda it has spawned pervade the lives of non-traditional families dependent on the government for income. Legislative history for welfare reform and reauthorization is laden with “family values” statements, which shape policies, which form programs, which have conditions, which control the private lives of the neediest and most desperate families in this country. And, those families will do whatever it takes, including relinquishing their rights, in order to survive.

[2] White House, Working Toward Independence 9, at [hereinafter Working 2002].

[3] Some say it is part of an effort to restore “gender divisions of labor by stigmatizing nontraditional family and by pushing women (except welfare mothers) to return to their ‘rightful’ place in the home.” Mimi Abramovitz, Under Attack, Fighting Back, Women and Welfare in the United States 11, 91 (2000).

[4] This is a hypothetical condition elucidated in Section III.

[5] For purposes of this paper, I will begin with the roots of welfare federalization, though poverty relief dates back much further in this country. According to Judith Koons and Nancy Rose, the early United States welfare system was based on poor laws in Britain. Plymouth Colony was the first to develop policies of poor relief as early as 1642. In the colonies, relief program eligibility was based on a means test and a work test. The line between the deserving and undeserving relief recipients was drawn on the basis of 1) ability to engage in wage labor; and 2) compliance with ‘the family ethic.’ Women who did not marry or were abandoned and did not ‘abide by social norms’ were forced to labor. Koons, supra note 23 at 30-31; see Nancy E. Rose, Workfare or Fair Work 18 (1995).

[6] Stephen D. Sugarman, Welfare Reform and the Cooperative Federalism of America’s Public Income Transfer Programs 123, 137, Yale Law & Policy Review/Yale Journal on Regulation, reprinted from Symposium: Constructing a New Federalism (1996) [hereinafter Sugarm, Federalism].

[7] Stephen D. Sugarman, Reforming Welfare through Social Security, 26 U. Mich. J.L. Ref. 817, 823 (1993) [hereinafter Sugarman, Reforming].

[8] Social Security Act of 1935, ch. 531, titl. IV, § 401, 49 Stat. 620, 627.

[9] Sugarman, Reforming, supra note 5 at 824.

[10] Id.

[11] Id.

[12] 42 U.S.C. § 606(a) (1988).

[13] Sugarman, Reforming, supra note 5 at 825.

[14] Id.at 827 n. 70; see King v. Smith, 392 U.S. 309, 320 (1968) (holding that a state may not deny AFDC benefits to children “on the basis of their mothers’ alleged immorality or to discourage illegitimate births”); see Lewis v. Martin, 397 U.S. 552, 553-54 (1970)).

[15] Sugarman, Reforming, supra note 5 at 827 n.70.

[16] Social Security Act Amendments of 1939, ch. 666, tit. II, § 202, 53 Stat. 1360, 1364-65 (codified as amended at 42 U.S.C. § 402(d)-(f) (1988)).

[17] Social Security Act Amendments of 1956, ch. 836, tit. I, § 103(a), Stat. 807, 815 (codified as amended at 42 U.S.C. § 423(a) (1988)).

[18] Social Security Act Amendments of 1958, Pub. L. No. 85-840, tit. II, § 205, 72 Stat. 1013, 1021-23 (codified as amended at 42 U.S.C. § 402(b)-(d) (1988)).

[19] Sugarman, Reforming, supra note 5 at 826. For example, in 1992, widows and their children comprised under two percent and incapacitated parents and their children only three percent of the AFDC caseload. Id.

[20] Id.

[21] Id. at 829.

[22] Sugarman, Federalism, supra note 4 at 137.

[23] Sugarman, Reforming, supra note 5 at 827.

[24] Id. at 826.

[25] Judith E. Koons, Motherhood, Marriage, and Morality: the Pro-Marriage Moral Discourse of American Welfare Policy, 19 Wis. Women’s L.J. 1, 40 (2004).

[26] Id. at 40. As a result, there was a marked shift in the racial composition of the rolls. Before the War on Poverty, the federal caseload had been eighty-six percent White; by 1967, though, it was forty-six percent non-White.[27] This shift did not go unnoticed, especially in the South where efforts were unleashed to “stem the tide of black women on welfare,” including regulations permitting “midnight raids” by welfare workers inspecting recipients’ bedrooms for men. Id.

[28] King v. Smith, 392 U.S. 309, 334 (1968).

[29] Anna Marie Smith, The Sexual Regulation Dimension of Contemporary Welfare Law: a Fifty State Overview, 8 Mich. J. Gender & L. 121, 133 (2002). Alabama officials defined cohabitation as existing wherever the person in question had "frequent or continuing extra-marital sexual relations.” Id.

[30] New Jersey Welfare Rts. Org. v. Cahill, 411 US 619 (1973). Note that the holding did not refer to discrimination against non-married co-habitating parents on the basis of marital status. Id.

[31] Smith, supra note 26 at 133.

[32] Smith, supra note 26 at 132.

[33] Id.

[34] Stephen D. Sugarman, Financial Support of Children and the End of Welfare as We Know It, 81 Virg. L. Rev. 2523, 2570, reprinted from Symposium: New Directions in Family Law (1995) [hereinafter Sugarman, Financial].

[35] Some experts who have studied demographic and political trends believe that the liberalization of welfare restrictions, prompted by the poverty rights movement, are precisely what provoked the backlash that led to welfare reform.

[36] Timothy A. Byrnes, Abortion and a “New Majority,” Catholic Bishops in American Politics.

[37] Roe v. Wade, 410 U.S. 113 (1973).

[38] Richard A. Viguerie, The Pro-Family Movement; Why Liberalism Is Dying, The New Right: We’re Ready to Lead (1981).

[39] Smith, supra note 26 at 133.

[40] Id. at 133.

[41] Id.

[42] Lucy Williams, the Ideology of Division: Behavior Modification Welfare Reform Proposals, 102 Yale L.J. 719, 742 (1992).

[43] Carole M. Hirsch, When the War on Poverty Became the War on Poor, Pregnant Women: Political Rhetoric, the Unconstitutional Conditions Doctrine, and the Family Cap Restriction, 8 Wm. & Mary J. of Women & L. 335, 349 (2002). AFDC families actually had fewer children than the national average of the general population. Hirsch suggests that this is an empirical indication that family caps are not an effort to keep welfare families’ sizes “within reason,” but rather to keep them unnaturally smaller than their non-recipient peers. Id.

[44] Hirsch, supra note 40 at 342.

[45] Id. at 343-44. Contrary to popular public opinion, studies have shown that most families receiving welfare are smaller than families in the general population. In 1995, the average size of a family receiving AFDC benefits was 2.8; whereas, the average size of a family in the entire population was 3.18. Id.

[46] Dorothy E Roberts, Welfare Reform and Economic Freedom: Low-income Mothers’ Decisions About Work at Home and in the Market, 44 Santa Clara L. Rev. 1029, 1033 (2004); see also Martin Gilens, Why Americans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy, Studies in Communication, Media, and Public Opinion. (Chicago 1999).

[47] Koons, supra note 23 at 6.

[48] Id. at 2; see also Judith Havemann, D.C.’s Welfare Waiver Draws Attack by Dole: Clinton Undercutting Promise, Opponent Says, Wash. Post C5 (Aug. 23, 1996).

[49] Pub. L. No. 104-103, 110 Stat. 2105 (codified in scattered sections of 42 U.S.C.)

[50] Statement on Signing the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, II Pub. Papers 1328 (Aug. 22, 1996) (statement by President William J. Clinton).

[51] Fact Sheet, United States Department of Health and Human Services Administration for Children and Families Office of Family Assistance, at (last visited Nov. 11, 2005) [hereinafter OFA Fact Sheet]. The TANF Mission Statement is: “The Office of Family Assistance administers the Temporary Assistance for Needy Families (TANF) program. TANF provides assistance and work opportunities to needy families by granting States the federal funds and wide flexibility to develop and implement their own welfare programs.” Id.

[52] Parvin R. Huda, Singled Out: A Critique of the Representation of Single Motherhood in Welfare Discourse, 7 Wm. & Mary J. of Women & L. 341 (2001) (citing H.R. Rep. No. 104-651, at 3 (1996), reprinted in 1996 U.S.C.C.A.N. 2183, 2184).

[53] Id. at 341. See OFA Working Toward Independence, Executive Summary (Feb. 2002). In the federal government’s own words, “The new policy aimed to encourage personal responsibility by promoting work, reducing nonmarital births, and strengthening and supporting marriage. No longer could able-bodied adults remain on welfare year after year without working.” Id.

[54] Huda, supra note 49 at 341, (quoting Joel H. Handler & Yeheskel Hasenfeld, We the Poor People: Work, Poverty and Welfare 4 (1997).

[55] Id. at 341; see also supra notes 11-13.

[56] Id. at 342. See Katha Pollitt, Did Someone Say, ‘Hypocrites’?, The Nation, Apr. 13, 1998, at 9. Katha Pollit notes that the act “begins with a hymn to marriage an is based on the theory that poverty and social dysfunction are based on the untrammeled sexuality of poor women.” Id. See also Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare in the United States 11 (2000). Mimi Abramovitz explains the inherent internal contradictions of PRWORA’s “family values” rhetoric, “[T]oday’s call for a return to ‘family values’ is part of an effort to restore the family ethic and its gender division of labor by stigmatizing nontraditional family and by pushing women (except welfare mothers) to return to their ‘rightful’ place in the home.” Id.

[57] Wendy Chavkin, et al., Sex, Reproduction, and Welfare Reform, 7 Geo. J. Poverty Law & Pol’y 380 (2000).

[58] C.f. Huda, supra note 49 at 342.

[59] Choice USA Fact Sheet.

[60] Working Toward Independence, supra note 50.

[61] 42 U.S.C., 601 § 401(a).

[62] Id.

[63] Koons, supra note 23 at 9.

[64] 42 U.S.C.A. 608(a)(7) (mandating “no assistance for more than [five] years” to families receiving TANF benefits.

[65] PRWORA set basic standards, but states have the responsibility for setting and administering eligibility limits and benefit levels for cash assistance under TANF. Levels vary widely from state to state. In some states, families with earnings above the federal poverty line may qualify for benefits, but more than one-third of the states set the qualifying income level beneath fifty percent of the federal poverty line, which was approximately $7630 for a family of three in 2003. Maximum benefit levels also vary significantly – from under $200 to nearly $1000 per month for a single-parent family of three. National Center for Children in Poverty, Temporary Assistance for Needy Families (TANF) Cash Benefits, at (last visited Nov. 12, 2005).

[66] 42 U.S.C.A. 608(a)(7) states in pertinent part:

In General . . . [a] State to which a grant is made under section 603 of this title shall

not use any part of the grant to provide assistance to a family that includes an adult

who has received assistance under any State program funded under this part attributable

to funds provided by the Federal Government, for sixty months (whether or not consecutive)

after the date the State program funded under this part commences, subject to this paragraph.

Id.

[67] General Accounting Office, Welfare Reform-State’s Early Experiences with Benefit Termination 21 (1997), available in WL 288910 (F.D.C.H.) (reporting to Senate Committee on Finance) [hereinafter GAO Report].

[68] Id. at 21-22.

[69] 42 U.S.C.A. 608(a)(7)(B)(i) provides:

In determining the number of months for which an individual who is a parent or

pregnant has received assistance . . . the State shall disregard any month for which such

assistance was provided with respect to the individual and during which the individual

was – (i) a minor child; and (ii) not the head of a household or married to the head of a

household.

[70] 42 U.S.C.A. 608(a)(7)(C)(i). 42 U.S.C.A. 608(a)(7)(C)(iii) allows that “the State may exempt a family from the application of subparagraph (A) [the sixty-month limit] by reason of hardship or if the family includes an individual who has been battered or subjected to extreme cruelty.” Id. The statute lists seven categories that qualify as “battery or extreme cruelty”:

(I) physical acts that resulted in, or threatened to result in, physical injury to the individual;

(II) sexual abuse;

(III) sexual activity involving a dependent child;

(IV) being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities;

(V) threats of, or attempts at, physical or sexual abuse;

(VI) mental abuse; or

(VII) neglect or deprivation of medical care.

Id.

[71] 42 U.S.C.A. 608(a)(7)(D)(i). For the definition of “Native American” and “Native Alaskan,” see 42 U.S.C.A. 619(4)(a)-(b).

[72] Montgomery L. Wilson, Congress Imposes an ‘Undue Burden’ on Poor Families: How the 1996 Personal Responsibility Act’s Full-Family Cut-Off Will Force Parents to Separate from Children, 8 Temp. Pol. & Civ. Rits. L. Rev. 141,147 (1998).

[73] Id. at 147.

[74] 42 U.S.C.A. 617 (delegating “Power and Flexibility” to the states, except where Congress expressly reserves the power to itself). See Wilson, supra note 69 at148-49.

[75] 42 U.S.C.A. 608(a)(7)(C)(ii).

[76] 42 U.S.C.A. 609(a)(9).

[77] OFA Fact Sheet, supra note 48.

[78] Id.

[79] Id..

[80] OFA Executive Summary of Final Rule: Temporary Assistance to Needy Families, at (last visited Nov. 12, 2005) [hereinafter Exec. Summary].

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id..

[86] Id.

[87] In 1981, the U.S. Office of Population Affairs began administering the Adolescent Family Life Act (AFLA). The program was designed to prevent teen pregnancy by promoting chastity and self-discipline. It directly funds individual public and private entities. During its first year, AFLA received $11 million in federal funds. In FY 2003, AFLA received $12 million specifically earmarked for abstinence-only- until-marriage education, and in FY 2004 AFLA received $13 million for such programs. For FY 2005, President Bush proposed doubling this allocation to $26 million. See SIECUS, A Brief Explanation of Federal Abstinence-only-until-marriage Funding (2004) [hereinafter SIECUS].

[88] In October 2001, the federal government created the Special Projects of Regional and National Significance–Community Based Abstinence Education (CBAE) program. Proponents of the restrictive programming felt that Title V grantees were not following the “spirit” of the law in that issues like marriage were not being sufficiently addressed. In creating CBAE, these proponents set out to remove states from the middle of the equation and give funds directly to individual public and private entities from the Department of Health and Human Services. In so doing, they felt that they could compel programs to follow all eight points of the definition established under the Title V program. For this reason, CBAE funds are the most restrictive of all federal abstinence-only funds. In the first year of CBAE funding (FY 2001), the program received $20 million dollars. This doubled in FY 2002 to $40 million. In FY 2003, SPRANS–CBAE funding received $55 million, short of President Bush’s actual request of $73 million. For FY 2005, President Bush moved the administration of these funds to the more ideologically friendly Administration for Children and Families and requested $186 million. SIECUS, supra note 84.

[89] Social Security Act, tit.V, § 510(b), P.L. 104-193.

[90] Dep’t of Health and Human Services, Fact Sheet, HHS Invests in America’s Children (Apr. 11, 2002), at [hereinafter Invest Fact Sheet]. The Department of Health and Human Services cites research indicating that children raised by continuously married parents fare better in general than those raised in other family structures. “Children growing up without a married mother and father are more likely to experience school failure, to suffer from emotional disturbance or depression and to abuse drugs.” Id. However, this research does not appear to account for other socio-economic circumstances that factor into these children’s performances.

[91] Chavkin, supra note 54 at 385 n. 29. The first round of bonuses was awarded to the following five states for their corresponding declines in out-of-wedlock birthrates in 1999: California (5.7%), District of Columbia (3.7%), Michigan (3.3%), Alabama (2.0%), and Massachusetts (1.4%). Id.

[92] Id. at 385 n.30. The illegitimacy ratio is determined by comparing the nonmarital to general birth ratio during the most recent two years with the two years prior to that. The ratio is calculated by dividing the number of nonmarital births to state residents by the number of all births to residents during the most recent two years. Id.

[93] Ventura SJ and Bachrach CA, Nonmarital Childbearing in the United States, 1940-99, National Vital Statistics Reports, 2000, Vol. 48, No. 16.

[94] Department of Health and Human Services, Administration for Children and Families, Proposed Future Funding Opportunities, at (last visited Nov. 12, 2005) [hereinafter Proposed Funding].

[95] The funding for HMI will come, in great part, from the elimination of the Illegitimacy Reduction Bonus.

[96] ACF Healthy Marriage Mission, at (last visited Nov. 12, 2005). The official goals of HMI are to:

• Increase the percentage of children who are raised by two parents in a healthy marriage.

• Increase the percentage of married couples who are in healthy marriages.

• Increase the percentage of premarital couples who are equipped with the skills and knowledge necessary to form and sustain a healthy marriage.

• Increase the percentage of youth and young adults who have the skills and knowledge to make informed decisions about healthy relationships including skills that can help them eventually form and sustain a healthy marriage.

• Increase public awareness about the value of healthy marriages and the skills and knowledge that can help couples form and sustain healthy marriages.

• Encourage and support research on healthy marriages and healthy marriage education.

• Increase the percentage of women, men and children in homes that are free of domestic violence.

Id.

[97] On October 26, 2005 the House Ways and Means Committee approved HR 240, making $8 billion in reductions to federal programs under the Committee’s jurisdiction. California Budget Project, Budget Brief (October 2005), at (last visited Nov. 12, 2005).

[98] On March 9, 2005, the Senate Finance Committee approved PRIDE, sending it to the full Senate for consideration. Proposed Funding, supra note 91.

[99] Funds provided shall be used to support any of eight programs or activities. The legislative language of both HR 240 and S 667 for six activities are nearly identical:

• Public advertising campaigns on the value of marriage and the skills needed to increase marital stability and health.

• Marriage education, marriage skills, and relationship skills programs, that may include parenting skills, financial management, conflict resolution, and job and career advancement, for non-married pregnant women, and non-married expectant fathers. (S 667 adds “and non-married recent parents”.)

• Pre-marital education and marriage skills training for engaged couples and for couples or individuals interested in marriage.

• Marriage enhancement and marriage skills training programs for married couples.

• Divorce reduction programs that teach relationship skills.

• Programs to reduce the disincentives to marriage in means-tested aid programs, if offered in conjunction with any (allowable) activity described (above).

Proposed Funding, supra note 91.

[100] Dep’t of Health and Human Services, Fact Sheet, Promoting Responsible Fatherhood (Apr. 26, 2002), at (last visited Nov. 12, 2005) [hereinafter Fatherhood Fact Sheet].

[101] Id.

[102] Id. According to HHS, “Dads play indispensable roles that cannot be measured in dollars and cents: nurturer, mentor, disciplinarian, moral instructor, and skills coach, among other roles.” Id.

[103] National Center for Children in Poverty, Child Support Enforcement, at (last visited Nov. 12, 2005) [hereinafter NCCP Child Support].

[104] Id. Families that have never received TANF may participate in the child support enforcement program for a small fee and always keep 100 percent of the support collected. Id.

[105] Id.

[106] Id.

[107] Id.

[108] Id.

[109] The term, “family cap,” is a misnomer when applied to these policies, because a true family cap is a ceiling on the number of welfare dollars a family can receive, not on the number of children a family on welfare can have. On the contrary, the policies states have adopted under TANF actually exclude children from welfare eligibility, based on the welfare status of their mothers, not on the total amount of assistance the family receives. “[A] true family cap, for example, the monetary ceiling on welfare benefits upheld in Dandridge v. Williams, imposes a maximum grant limitation applicable to all families that reach a specified size, whatever the family’s need and without regard to a mother’s [welfare] status at the time of any particular child’s conception or birth.” Susan Frelich Appleton, Standards for Constitutional Review of Privacy-Invading Welfare Reforms: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test, 49 Vand. L. Rev. 1, 39 (1996). Id.

[110] As an illustration, a family of two receiving $8000 a year through TANF could apply approximately $4000 to meet family member’s needs. When an excluded child is born, the expanded family is forced to subsist on the same amount of aid. The now three-person family would receive only $2667 per person. This results in a drastically substandard amount of per capita funding.

[111] Chavkin, supra note 54 at 381.

[112] Alan Guttmacher Institute, Welfare law and the Drive to Reduce ‘Illegitimacy’ [hereinafter AGI]. “Only a few states' family caps have been established since 1996; most were approved as waivers under the AFDC program.” Id.

[113] Chavkin, supra note 54 at 383.

[114] Chavkin, supra note 54 at 383.

[115] Id.

[116] Jodie Levin-Epstein, Excluded Children: Family Cap in a New Era, Washington, D.C., Center for Law and Social Policy (1999).

[117] AGI, supra note 107.

[118] Id.

[119] Id.

[120] OFA Fact Sheet, supra note 48.

[121] AGI, supra note 107.

[122] 42 U.S.C. 601, §401 (a).

[123] Roberts, supra note 43 at 1032. Dorothy Roberts points out that the logic that propelled early welfare legislation was opposite of that which propels welfare reform. Then, “welfare mothers needed government aid so that they would not have to relinquish their maternal duties in the home to join the workforce.”

[124] PRWORA did increase daycare subsidies for welfare-to-work employees; however, for a variety of reasons, recipients claim that the provisions are insufficient. A fuller discussion of the daycare topic is beyond the purview of this paper.

[125] Child Care and Development Fund, 45 C.F.R. 98.1(6) (2000).

[126] U.S. General Accounting Office, Child Care: Recent State Policy Changes Affecting the Availability of Assistance for Low-Income Families 1 (2003), at [hereinafter GAO Child Care].

[127] I.R.C. 21(a)(1) (1994).

[128] Roberts, supra note 43 at 1047 (citing Jennifer Mezey, Threatened Progress: U.S. in Danger of Losing Ground on Child Care for Low-Income Working Families, Center for L. & Soc. Pol’y, June 2003, at ).

[129] Id. (citing Mezey at 3).

[130] Joanne Wasserman, A Crisis of Kids Left All Alone, N.Y. Daily News, Oct. 27, 2003, 1 (News) at 6.

[131] Roberts, supra note 43 at 1048.

[132] 42 U.S.C. 601, §401(a).

[133] Hirsch, supra note 40 at 337.

[134] Id. (citing Nat’l Organization for Women Legal Defense and Education Fund, Economic Justice for All Women, available at ).

[135] Legal Momentum, Report: Women More Likely to be Poor, Legal Momentum study of Census data finds education can close poverty gap (Oct. 13, 2004), available at (last visited Mar. 1, 2006).

[136] Legal Momentum, Economic Justice for All Women, at (last visited Mar. 1, 2006).

[137] Roberts, supra note 43 at 1037.

[138] Id. at 1042.

[139] Id. at 1043.

[140] Id. at 1043; 42 U.S.C., 601 § 401(a).

[141] Id. at 1043.

[142] Id. at 1045. Most advancements in workplace childcare accommodations have taken place in white-collar professional offices – not blue-collar labor worksites.

[143] Id. at 1056. This is reinforced by setting TANF benefit levels below the amount earned by a minimum-wage worker, in order to avoid disturbing low-wage markets and to maintain an incentive, albeit slight, to leaving the rolls for the workforce. Id.

[144] Id. at 1054 (citing Kathryn Edin & Maria Kefalas, Promise I Can Keep: Why Poor Women Put Motherhood Before Marriage).

[145] 42 U.S.C. 601, §401(a).

[146] The Future of Reproductive Rights: Doctrine and Discourse, comment by Professor Kristin Luker (University of California, Berkeley, Boalt Hall School of Law, Sept. 9, 2005).

[147] Chavkin, supra note 54 at 390.

[148] Id.

[149] AGI, supra note 107.

[150] Jane Mauldon, Families Started by Teenagers, All Our Families 40, 48-49(2003). According to researchers at the Alan Guttmacher Institute:

Very little is known about whether this requirement has any effect on sexual behavior

or reproductive decisions, and what is known may be surprising. Researchers at Cornell

University found that the rule is associated with a 10% increase in nonmarital childbearing

among teens. Speculating as to why a policy intended to lower out-of-wedlock childbearing

may have actually resulted in an increase, the researchers suggest that for some teens,

receiving their parents' support in caring for their child may add a measure of security.

AGI, supra note 107.

[151] Law Students for Choice, Abstinence-only vs. Comprehensive Sexuality Education: Which is Best for Our Youth?, Student Coordinator Binder Fact Sheets (2005) [hereinafter LSFC Sex Ed]; American Civil Liberties Union, What the Research Shows: Abstinence-Only-Until-Marriage Sex Education Does Not Protect Teenagers' Health (citing The Content of Federally Funded Abstinence-Only Education Programs, prepared for Rep. Henry A. Waxman, United States House of Representatives, Committee on Government Reform - Minority Staff, Special Investigations Division, December 2004 (May 4, 2005), at (last visited Nov. 24, 2005) [hereinafter ACLU Abstinence-only (citing Waxman Report)].

[152] LSFC Sex Ed, supra note 144 at 2. Studies show that students schooled in abstinence-only education are commonly less willing to use contraception, because they are ill-informed about the efficacy rates. This exposes them to higher risks of unwanted pregnancies and STIs. ACLU Abstinence-only, supra note (citing D. Hauser, Five Years of Abstinence-Only-Until-Marriage Education: Assessing the Impact, Advocates for Youth (Sept. 2004).

[153] ACLU Abstinence-only (citing Waxman Report), supra note 144.

[154] LSFC Sex Ed, supra note 144 at 2.

[155] ACLU Abstinence-only (citing Waxman Report), supra note 144 .

[156] Id. (citing H. Brückner and P. Bearman, After the Promise: the STD Consequences of Adolescent Virginity Pledges, J. of Adolescent Health, 36 (2005) 271-278).

[157] Id. (citing Douglas Kirby, Ph.D., Emerging Answers: Research Findings on Programs to Reduce Teen Pregnancy, The National Campaign to Prevent Teen Pregnancy (May 2001)).

[158] Since passage of the Hyde Amendment, federal funds for abortion have been restricted to procedures to terminate pregnancy caused by incest or rape or when the health or life of the mother is threatened. Extension of this restriction to state funding was upheld by the Supreme Court in Harris v. McRae, 448 U.S.297 (1980).

[159] AGI, supra note 107.

[160] AGI, supra note 107.

[161] Jodie Levin-Epstein, Lifting the Lid off Family Cap: States Revisit Problematic Policy for Welfare Mothers, Center for L. & Soc. Pol’y, Dec. 2003 1,2 [hereinafter CLASP Lifting].

[162] Id. at 2.

[163] Id. at 2. Child exclusion policies waste administrative time and money shaming women and punishing families without influencing women’s procreative agency. “Anyone who thinks that a woman goes through nine months of pregnancy, the pain of childbirth, and 18 years of rearing a child for $45 more a month…has go to be a man.” Lucy Williams, The Ideology of Division: Behavior Modification Welfare Reform Proposals, 102 Yale L.J. 719, 737 (1992).

[164] J. Soss, et al., Setting the Terms of Relief: Explaining State Policy Choices in the Devolution Revolution, 45 Am. J. of Pol. Sci. 378 (2001).

[165] 42 U.S.C. 601, §401(a).

[166] Koons, supra note 23 at 22-23.

[167] Id.

[168] Roberts, supra note 43 at 1035.

[169] Id. at 1035; see also Katherine Boo, The Marriage Cure: Is Wedlock the Way out of Poverty?, The New

Yorker, Aug. 18, 2003; Amy Davidson, A Less Than Perfect Fit, The New Yorker Online Only, Aug.

12, 2003, at .

[170] Roberts, supra note 43 at 1054 (citing Kathryn Edin & Maria Kefalas, Promise I Can Keep: Why Poor Women Put Motherhood Before Marriage).

[171] Roberts, supra note 43 at 1054

[172] Id. at 1054-55.

[173] Gwendolyn Mink, Violating Women: Rights Abuses in the Welfare Police State, 577 Annals 79, 90 (2001).

[174] Id.

[175] Vivian Hamilton, Mistaking Marriage for Social Policy, Va. J. Soc. Pol’y & L. 307, 367 (2004).

[176] Michael Tanner, Wedded to Poverty N. Y. Times, July 19, 2003. One study of male marriage pools in

areas of high poverty showed that twenty percent of fathers of nonmarital children had annual incomes

below $6000; twenty-eight percent were unemployed; thirty-eight percent had criminal records; and one-

third had not graduated from high school. Tanner concluded that many single mothers consider

poor, unemployed, or uneducated men pretty unattractive as husband potential. Id.

[177] Hamilton, supra note 172.

[178] Id.

[179] Id.at 1035. “State and federal marriage promotion programs are unlikely to have much effect without providing better-paying jobs for recipients and their potential marriage partners.” Id.

[180] National Center for Children in Poverty, Many Children with Married Parents are Low Income, at (last visited Nov. 12, 2005)(citing estimates derived from Current Population Survey, Annual Social and Economics Supplements, March 1994-2004) [hereinafter NCCP Low Income Children]. Low income is defined as twice the poverty level, or $38,700 for a family of four in 2005. Id.

[181] Remington, Comment: It Takes a Father? Conforming with Traditional Family Values as a Condition of Receiving Welfare: Morals Reform and the Price of Privacy, 32 Stetson L. Rev. 205, 227 (2002).

[182] Hirsch, supra note 40 at 351; Frost &Frost Trucking Co. v. R.R. Comm’n of Cal., 271 U.S. 583 (1926) (holding that the railroad commission cannot require certain actions by the trucking company merely because it is required to obtain a permit).

[183] Liquormart, Inc. v. R.I., 571 U.S. 484 (1994) (striking down two Rhode Island statutes that prohibited advertisement of alcohol prices as abridging speech under the First Amendment).

[184] Id. “Once the government chooses to provide a benefit, it may not force the recipient to surrender a constitutional right to receive it.” Hirsch, supra note 40 at 352.

[185] Gary Feinerman, Student Author, Unconstitutional Conditions: the Crossroads of Substantive Rights and Equal Protection, 43 Stan. L. Rev. 1369, 1369 (1995).

[186] Remington, supra note 168 at 209.

[187] Sherbert v.Verner 374 us 398 (1963) (overruled on other grounds in New York State Emp. Rels. Bd. V. Christ the King Regional High Sch., 90 N.Y.2d 244 (1997) (replacing the balancing test used in Sherbert with a more nuanced free exercise analysis)).

[188] Shapiro v. Thompson, 394 U.S. 618 (1969).

[189] Dandridge v. Williams, 397 U.S. 471 (1970).

[190] Wyman v. James, 400 U.S. 309 (1971).

[191] Maher v. Roe, 432 U.S. 464 (1977).

[192] Remington, supra note 168 at 229.

[193] Sherbert v.Verner 374 us 398 (1963) (overruled on other grounds in New York State Emp. Rels. Bd. V. Christ the King Regional High Sch., 90 N.Y.2d 244 (1997) (replacing the balancing test used in Sherbert with a more nuanced free exercise analysis)).

[194] Id. at 404. “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” Id.

[195] Id. at 404-05 (citing American Communications Assn. v. Douds, 339 U.S. 382, 390; Wieman v. Updegraff, 344 U.S. 183, 191-192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156).

[196] Id. at 406 n6 (citing Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595, 1599-1602 (1960)).

[197] Shapiro, 394 U.S. at 621-22.

[198] Id. at 627 n. 6 (citing Sherbert v. Verner, 374 U.S. 398, 404 (1963), a case involving application of the unconstitutional conditions doctrine to a dispute about unemployment benefits and implications for First Amendment rights).

[199] Id. at 630-31 (quoting U.S. v. Guest, 383 U.S. 745, 757-58 (1966)).

[200] Id. at 634-38.

[201] Dandridge, 397 U.S. at 473 (holding that the family cap did not violate the Equal Protection Clause because it did not deprive the youngest child of any and all aid, but rather diminished the lot of the entire family).

[202] Id. at 475.

[203] Id.

[204] Id. at 483, 486.

[205] Wyman, 400 U.S. at 310.

[206] Id. at 317-18.

[207] Remington, supra note 168 at 232.

[208] Wyman, 400 U.S. at 328 (Douglas, J., dissenting).

[209] Id. at 332 (Douglas, J., dissenting).

[210] Maher, 432 U.S. at 466.

[211] Id. at 473.

[212] Id. at 474.

[213] Id.

[214] Id. (distinguishing Shapiro v. Thompson, which penalized proscribed conduct). Worthy of note is the Court’s acknowledgement that it may have applied a different analysis and reached a different conclusion had the State “denied general welfare benefits to all women who had obtained abortions and who were otherwise entitled to the benefits.” Id. at n. 8. C.f., Harris v. McRae, 448 U.S. at 317 n. 19 (stating that denial of all Medicaid benefits to women who have abortions would constitute a penalty). This general denial, it said, would be more closely analogous to Shapiro. The Court also declared that, in its view, the difference between a penalty for and undue interference with a woman’s right to choose is only semantic. Id. at n. 8.

[215] Remington, supra note 168 at 231.

[216] Id.

[217] Id. at 228. See e.g., Charles R. Bogle, Unconscionable Conditions: A Contractual Analysis of Conditions on Public Assistance Benefits, 94 Colum. L. Rev. 193 (1994). “Conditions that act either as a penalty on or are likely to deter the exercise of a fundamental right are invalid under the unconstitutional conditions doctrine unless supported by a compelling interest.” Id. at 193.

[218] Remington, supra note 168 at 228.

[219] Lynn Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 Cornell L. Rev. 1185, 1217 (1990).

[220] Remington, supra note 168 at 233.

[221] In 1992, New Jersey became the first state to impose a child exclusion policy under its Family Development Program (FDP). Appleton, supra note 108 at 345-46. In C.K. v. Shalala, the plaintiff class, consisting almost entirely of women and children receiving AFDC, challenged the constitutionality of the policy. C.K. v. Shalala, 883 F. Supp. 991 (D.N.J. 1995). The district court granted summary judgment for the defendants and dismissed the claim, holding that the policy did not violate plaintiffs’ due process or equal protection rights under the Fifth and Fourteenth Amendments. Id. at 1013-15. Plaintiffs asserted that the policy violated their constitutional right to make decisions about conception and childbirth in a private manner, free governmental intrusion. Relying on Dandridge, the district court held that New Jersey’s policy did not deny the excluded child benefits, but rather required the excluded child to share in the household’s collective benefits. Id. at 1012-15. It further held that the policy did not “unduly burden” recipients’ procreative freedom, because it did not condition receipt of benefits upon their reproductive choices. According to the court, the policy “merely removed the automatic benefit increase associated with an additional child,” but did not penalize or prohibit an AFDC recipient from conceiving or bearing an additional child. Id. at 1014 (relying on Harris v. McRae, Harris v. McRae, 448 U.S.297). The United States Court of Appeals for the Third Circuit summarily affirmed the district court’s decision without addressing the manifold constitutional arguments raised by plaintiffs and amici. C.K. v. New Jersey Dep’t of Helath & Human Servs., 92 F.3d 171 (3d Cir. 1996); Stefanie Paige Underwood, C.K. v. New Jersey Department of Health and Human Services: The War on Welfare Mothers, 18 Women’s Rights L. Rep. 343, 349 (1997). It did observe, though, “that it would be remarkable to hold that a state’s failure to subsidize a reproductive choice burdens that choice.” C.K., 92 F.3d at 195. In 1997, the American Civil Liberties Union of New Jersey and National Organization for Women Legal Defense and Education Fund filed Sojourner A. v. New Jersey Department of Health and Human Services, challenging the FDP on equal protection and right to privacy grounds under the state constitution. Sojourner A. v. N.J. Dep’t Human Servs., ESX-L-10171-97 (Essex County Ct. 1997) (unpublished decision issued by J. Anthony Iuliani). The trial court upheld the statute, finding that while the child exclusion policy might impose a “slight burden” on a woman who chose to have an additional child, it did not “substantially intrude” on her reproductive autonomy. Id. Neither of these cases deal with the unconstitutional conditions doctrine.

[222] In New Jersey Welfare Rights Organization v. Cahill, the U.S. Supreme Court struck down a New Jersey statute that withheld AFDC benefits from families that were not comprised of a ceremonially married, opposite-sex couple and their marital children. N.J. Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973). The Court held that the provision discriminated against illegitimate children in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 621. The opinion was silent about discrimination based on the marital status of the parents and did not engage in a doctrinal analysis of unconstitutional conditions. Smith, supra note 28 at 131.

[223] Laura M. Friedman, Family Cap and the Unconstitutional Conditions Doctrine: Scrutinizing a Welfare Woman’s Right to Bear Children, 56 Ohio St. L.J. 637, 647 (1995).

[224] Eisenstadt v. Baird, 405 U.S. 438 (1972).

[225] Id. at 453. Emphasis added.

[226] Loving v. Virgina, 388 U.S. 1 (1967).

[227] Id. at 10.

[228] Id. at 12 (emphasis added).

[229] Zablocki v. Redhail, 434 U.S. 374, 383 (1978).

[230] Id. at 374.

[231] Id. at 388.

[232] Remington, supra note 168 at 219.

[233] See Mink, supra note 172. In 2001, the Heritage Foundation published Priorities for the President to greet the newly inaugurated George W. Bush. In the publication, Robert Rector proposed that the federal government substitute current financial incentives for states to increase their marriage rates with financial retribution for states that do not. Id. at 88. He suggested a $1 billion set-aside for pro-marriage activities, including incentives and rewards for parents who marry. Id. In addition, Wade Horn, founder of the Fatherhood Initiative and assistant secretary of the Department of Health and Human Services, would reserve Head Start, public housing, TANF, and other social programs for married parents, leaving single parents whatever funds were left over once all married families were provided for. Id. Horn approved Rector’s suggestion that the federal government dole out $1000 annually to women “at risk of bearing a child out of wedlock” for getting married before they have children and staying married. Id.

[234] This hypothetical policy would be a natural outgrowth of the current direction in welfare reform, combining the content and sentiment of the legislative history to TANF, marriage and fatherhood initiatives, and mandatory paternity identification/child support cooperation programs. Proponents of such a policy may defend it as an efficient way to increase personal responsibility among two (grievously misunderstood and incessantly stereotyped) populations: the “welfare queens” and the “deadbeat dads.”

[235] Hirsch, supra note 40 at 348-49. A tax deduction is higher in actual dollars than the incremental welfare increase allotted to a family on assistance with a new child in most states. Id.

[236] Remington, supra note 168 at 237.

[237] Remington, supra note 168 at 239-40.

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