Katherine Kmiec's Bright Idea—Subsidize Families With Children

Slate's blog on legal issues.
May 26 2008 10:54 AM

Katherine Kmiec's Bright Idea—Subsidize Families With Children

Holidays like Memorial Day are times for families to gather, and my married daughter, Katherine, a deputy county counsel for a Southern California county government, shared her reflections as a citizen and spouse upon the California Supreme Court's recent decision in favor of same-sex marriage.

Katherine astutely observed that one salutary byproduct of the decision would be to prompt the government to re-examine whether there are adequate existing incentives to have and rear children. Drawing comparison with practices in Europe, Katherine speculated that existing, marriage benefits in the United States might be better directed to and augmented for those same-sex or traditional couples who willingly assume the opportunity costs associated with having and rearing children, as opposed to those who don't. 

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As an aside, while we did not undertake a macroassessment of the dollar value of direct U.S. "marriage benefits," they do not seem to be overwhelming; for example, if a couple has disparate incomes, filing jointly is usually a benefit, but because of tax brackets, couples with high incomes may still be penalized; there is also a spousal exemption from estate tax, and of course, modest Social Security and Medicare spousal benefits. The benefits available to married employees (e.g., health and life insurance and retirement plan contributions) and the nontaxability or favored tax treatment of those benefits may be the most significant indirect economic benefit for married couples with or without children. There are few government or employer child allowances for children comparable to those found in other countries (see below). 

It is well-known that falling birthrates threaten to undermine the economies and social stability across much of an aging Europe. Katherine's father (me) thought procreation one of the most plausible state reasons for skepticism toward a public affirmation of same-sex marriage. The argument had a rational but not compelling basis because of the obvious imperfect fit between marriage and procreation (e.g., elderly and infertile couples). The fact that our state Supreme Court has now reached the conclusion that a rational basis is insufficient to justify the traditional definition of marriage does not mean that the state interest in fertility and responsible parenting has disappeared.

Since this concern is even greater in Europe, it is reasonable, as Katherine counseled, to inquire as to thinking and experience in foreign venue. Consider: France. Until recently, French fertility rates had the same downward slope as the rest of Eastern and Western Europe, but today its fertility rates are increasing. In fact, France now has the second-highest fertility rate in Europe—1.94 children born per woman, exceeded slightly by Ireland's rate of 1.99. The U.S. fertility rate, by comparison, is 2.01 children. This has made France the subject of considerable study by officials from Japan, Thailand, and Germany, all of which are facing the prospect of dropping off a steeper demographic cliff.

What accounts for France's increased population? While it might be the romantic nature of Frenchmen and the historic connection to Catholicism, it is more traceable to some rather substantial subsidies for children and families paid by the French government. For example, the government provides reimbursement for child-care costs for mothers of toddlers up to the age of 3 and free child care from age 3 to kindergarten. The Washington Post reported that a new law "provides greater maternity leave benefits, tax credits and other incentives for families who have a third child. During a year-long leave after the birth of the third child, mothers will receive $960 a month from the government, twice the allowance for the second child." 

While some of these allowances are progressive and aimed at low-income families, many are available to all, recognition that France better understands than the United States how it is discriminatory to make women choose between career and motherhood . Moreover, "French law [allows women] to opt not to work or to work part time until her child is 3 years old—and her full-time job will be guaranteed when she returns."

In sum, the French tax and economic system provides the following benefits for families:

  • generous child allowances
  • subsidized preschool and daycare
  • substantial maternity leave and right of return
  • tax benefits for transportation and some family purchases
  • subsidies for in-home care
  • government-provided recreation programs
  • a private market that responds with services and hours of operation aimed at meeting working family needs, like, for example, pediatricians who make home visits
  • the well-known French extended (36 paid day) vacation.

So, the next time you hear some U.S. official boasting about "freedom fries" rather than "French fries," feel free to tell them they have some 'splainin to do. America and France may both extol family values, but France (and a number of other European countries as well) also values family in the way hard-headed economists understand. 

In significant part, avoiding stigmatic harm to same-sex families prompted the inclusionary ruling by the California Supreme Court. In the court's words, "the substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own—and, if the couple chooses, to raise children within that family—constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society." 

The new importance of not drawing marital distinctions on the basis of sexual orientation should not obscure the equal importance of specially acknowledging the good to society that natural or adoptive  parents provide—whatever orientation prompted them to come together.

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