NOW Legal Defense and Education Fund ("NOW Legal Defense") appreciates the opportunity to submit this testimony on the issue of welfare reform, marriage and family formation issues. We adhere to our long held belief that anti-poverty efforts must focus on initiatives that will empower individuals to become economically self-sufficient and permanently free them from poverty.

NOW Legal Defense is a leading national not-for-profit civil rights organization with a 31-year history of advocating for women’s rights and promoting gender equality. Among NOW Legal Defense’s major goals is securing economic justice for all. Throughout our history, we have used the power of the law to advocate for the rights of poor women. We have appeared before the Supreme Court of the United States in both gender discrimination and welfare cases, and have advocated for protection of reproductive and employment rights, increased access to childcare, and reduction of domestic violence and sexual assault.

NOW Legal Defense addresses welfare reform reauthorization from the perspective of ending women’s poverty. To this end, we have convened the Building Opportunities Beyond Welfare Reform Coalition (BOB Coalition), a national network of local, state, and national groups, including representatives of women’s rights, civil rights, anti-poverty, anti-violence, religious and professional organizations.

Our testimony focuses on the policy reasons that government involvement in personal issues of family formation will not reduce poverty. First, focus on marriage and family formation issues sidesteps the underlying causes of poverty, particularly the poverty of women and children -- such as lack of job training and education, discrimination, violence and lack of childcare. Second, government pressure with respect to highly personal decisions such as marriage is a dangerous precedent, not just for poor women, but for all citizens who believe that liberty entails making fundamental personal decisions without governmental interference. While we support efforts to make public benefits equally available to two parent and single parent families, we oppose any effort to discriminate against single parent families in the distribution of precious public benefits.

Both Federal and State initiatives with respect to marriage are alarming in their invasion of personal privacy and, at the same time, raise serious questions about the effective use of scarce government funds and the competence of government to administer programs dealing with intimate decisions such as marriage. We are particularly concerned that TANF funds will be diverted away from desperately needed economic supports, childcare and job training into questionable programs unlikely to have any positive effect in reducing poverty.

Federal Initiatives: Proposals have been put forth to create a new Federal Office of Marriage Initiatives within the U.S. Department of Health and Human Services’ Administration for Children and Families (ACF) that would target TANF, Child Support Enforcement, Family Planning, and other program dollars to pro-marriage initiatives. In addition, Congress is considering legislation relating to marriage and welfare reform. Those bills include the Responsible Fatherhood Act of 2001, (S.653/H.R.1300), the Strengthening Working Families Act of 2001 (S.685) and the Child Support Distribution Act of 2001 (H.R. 1471). The promotion of marriage requirement is included in all proposed bills, despite the experience and advice of community based fatherhood and family programs in low-income communities, especially communities of color that such an emphasis will frustrate their work.

Although we oppose inclusion of marriage promotion as a goal in proposed fatherhood initiatives, we applaud provisions in both S. 685 and H.R. 1471 that include crucial child support reforms, including, among others, requiring states to pay current child support to families who are no longer on welfare; giving states an option to convert state-owed arrearages to the custodial parent; and giving states the option to pass through child support to families currently receiving TANF benefits without being penalized by the Federal government (for families on welfare 5 years or less). The bills also provide financial incentives to states that choose these options and that disregard the amount of child support when determining the families’ TANF benefit.ⁱ If Congress wishes to promote marriage, reforming child support laws and providing supports to families is the most appropriate method of doing so.

State Initiatives: Recommendations have also been presented regarding state marriage promotion and divorce reduction plans. These recommendations include: creating State Offices of Marriage Initiatives; using TANF funds to reduce non-marital births and divorce by one-third within the next ten years; increasing the distribution of TANF funds to faith based organizations for the provision of faith-based marriage programs; and expanding chastity programs.ⁱⁱ

Since PRWORA, states have been free to use TANF dollars to support marriage and two-parent families. One way in which states do this is by providing benefits to two-parent families. Currently 5% of families receiving TANF have two or more adults, and18% of adult recipients are married and living together. At least fifteen states provide assistance to two-parent families through separate State programs.ⁱⁱⁱ Some states have begun using TANF dollars specifically to encourage an increase in marriage and a reduction in non-marital births and divorces. For example:

• In Arizona, a Marriage Initiative was passed in April, 2000 that allocates one million TANF dollars for marriage skills courses provided by community-based organizations, provides vouchers to make marriage skills courses available to low-income couples, and establishes a Marriage and Communication Skills Commission. The state also has a $3.5 million abstinence-until-marriage program and Covenant Marriage legislation under which couples promise to stay married for life and renounce their legal right to a no-fault divorce.
• Oklahoma has said it plans to earmark 10 percent of the state’s TANF surplus dollars to fund a $10 million program to encourage marriage and reduce divorce. The implementation of the Marriage Initiative includes a specific religious track under which state’s religious leaders sign a marriage covenant, committing themselves to encourage pre-marital counseling for couples in their churches and other house of worship.
• Utah recently earmarked $600,000 of its TANF surplus funds for the promotion of marriage education over the next two years. The legislature formed a Marriage Commission and raised the minimum marriage age from 14 to 16, and Governor Leavitt presides over an annual Marriage Week each February.
• Wisconsin has created a "Community Marriage Policy" and uses TANF dollars to fund a coordinator to work with local clergy across the state to assist in the development of community-wide standards for marriage solemnized by members of the clergy in that community.^iv

Again, we believe that states’ efforts to support fragile families are laudable. However, programs such as those described above may divert funds from needed benefits programs or directly intrude on private decision-making, going beyond appropriate public policy. At the very least, Congress should forego any federal mandates in this area until the impact of these programs has been carefully and independently evaluated.

II. Welfare Reform Reauthorization Should Not Focus on Marriage

Welfare reform reauthorization should focus on ending poverty for all. In order to accomplish that goal, it must focus on the barriers to economic self-sufficiency rather than marriage. It should invest in education, training and work supports to help families and individuals get to a point where they can survive and prosper, whether married or not.

A. Reauthorization should not coerce low-income women into giving up their fundamental rights to privacy. The Supreme Court has long recognized that an individual’s right to privacy regarding decisions to marry and reproduce as "one of the basic civil rights of man, fundamental to our very existence and survival."^v Significantly, this constitutional right equally protects the choice not to marry.^vi Reproductive privacy, initially honored as a right of marital privacy,^vii has been firmly established as a protected right of the individual, irrespective of marital status.^viii According to the Supreme Court, "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.^ix This right of privacy extends to an individual’s decision whether to have an abortion or not^x and protects individuals from government imposition of substantial obstacles in the path of reproductive choice.^xi

B. Congress should not discriminate against non-marital families. Our country consists of diverse family structures: those in which parents are married, divorced, remarried, widowed, single, gay and lesbian. In fact, according to the United States Census, there are currently more non-marital than marital families in our country. ^xii These families that have built loving, healthy relationships with their children and cooperative relationships with other caregivers deserve to be valued and respected.

Women and their children represent the vast majority of people living in poverty and on welfare.^xiii A confluence of factors, including labor market discrimination, primary care responsibility, the lack of quality, accessible, affordable childcare, domestic violence and divorce has resulted in women’s disproportionate poverty. Unequal pay means that women make 75 cents for every white man’s every dollar. This impact is even greater on African American women, who make 65 cents on that dollar, and even more so for Latinas, who make only 54 cents. As a result, women of color are disproportionately poor.^xiv Women and their children are also the majority of people on welfare.

Several welfare reform reauthorization proposals advocate for discriminatory treatment against non-married families (the majority of families in need of public assistance.) Wade Horn, the current nominee for Assistant Secretary for Family Support at the Department of Health and Human Services, has proposed that pregnant women on welfare give up their child for adoption to married two-parent families.^xv Proposals have been floated that would allow states to deny benefits to single parent families, or to pay out benefits to married couples first, and then give any remaining benefits to single parent families. With the threat of reduced reauthorization funding, this is a frightening proposition to the majority of families on welfare who are single mothers and their children.

The racial composition of welfare has shifted since welfare reform. In 1996, Whites represented 35.9%, African-Americans 36.9%, Hispanics 20.8%, and Asians 3.0% of the caseload.^xvi By 1999, Whites had dropped to 30.5%, while African Americans rose slightly to 38.3%, and Hispanics grew to 24.5%.^xvii Asians increased slightly to 3.6% while Native Americans remained essentially constant, increasing from 1.4 to 1.5%.^xviii Thus today, women of color make up two-thirds of welfare recipients and in 20 states are more than three-fourths of those on welfare.^xix Policies targeted to influence low-income women’s behavior thus have a disproportionate impact on women and communities of color.

This is especially insidious when viewed in light of a long history of discriminatory practices aimed at denying African-American’s rights to reproduce and marry, including the denial and destruction of the African-American family during slavery, the long delay in defining rape against African-American women a crime, the refusal to recognize African-Americans’ right to marry at all, followed by the denial of the right to marry if the choice of spouse was a white person.^xx Against that backdrop, practices that manipulate the reproductive and marital rights of African-American women are especially suspect.

C. Domestic Violence. When considering marriage as a solution for poverty, Congress must face the reality that violence against women is one of the main causes of women’s poverty. Domestic violence makes women poor and keeps them poor. The majority of battered women attempt to flee from their abusers.^xxi Many end up on welfare or homeless. Study after study demonstrates that a large proportion of the welfare caseload (consistently between 15% and 25%) consists of current victims of serious domestic violence.^xxii Between half to two thirds of the women on welfare have suffered domestic violence or abuse at some time in their adult lives.^xxiii Over 50% of homeless women and children cite domestic violence as the reason they are homeless.^xxiv

For these women and their children, the cost of freedom and safety has been poverty. Marriage is not the solution to their economic insecurity. For them marriage could mean death; it will almost undoubtedly mean economic dependence on the abuser. Many battered women are economically dependent on their abusers; 33-46% of women surveyed in five studies said their partner prevented them from working entirely.^xxv Those who are permitted to work fare little better. Ninety-six percent reported that they had experienced problems at work due to domestic violence, with over 70% having been harassed at work, 50% having lost at least three days of work a month as a result of the abuse, and 25% having lost at least one job due to the domestic violence.^xxvi Thus, battered women are overwhelmingly either totally economically dependent on the abuser or are economically unstable due to the abuse.

Those who would promote marriage in every circumstance sometimes claim that marriage decreases domestic violence. This idea may result from a lack of understanding regarding the dynamics of domestic violence, separation and divorce. Domestic violence is about power and control. Marital separation is experienced as a loss of control by the batterer, and thus separation or divorce frequently incites batterers to increase the danger of abuse for the battered women.^xxvii Because much of this violence against the survivor is perpetrated before and after visits, children’s exposure to this violence is increased.^xxviii While supervised visitation centers have been utilized as an avenue for allowing visitation between batterers and their children, there are not enough supervised visitation centers and in many cases the security in those centers is inadequate, staff is not trained in domestic violence, and women and children are abducted, harmed, or killed. Thus, even supervised visitation centers are not always safe.

Congress has repeatedly recognized that domestic violence is a serious national problem and has made efforts to minimize the severe risk to women and children from that violence, most recently by reauthorizing the Violence Against Women Act last year. We urge you to reject marriage and family formation proposals that ignore the very real risks of violence. Precious federal dollars should not go to programs that may contribute to the problem of violence against women that this Congress has taken great strides to ameliorate.

D. Marriage does not address the root causes of women’s poverty & is not a reliable long-term solution to women’s poverty. In general, two incomes are better than one and thus more likely to move people off of welfare. But that fact is not sufficient to support an argument that marriage will lead to an end to family poverty. Because of death, divorce, and job instability, marriage does not provide insurance of women’s economic security. Approximately 40% of marriages end in divorce^xxix and 12% due to the husband’s death.^xxx Even those who conceive of marriage as the solution to poverty recognize that when marriages fail, women fall into poverty while men do not. As noted above, the cause of the failure of many marriages is domestic violence.

The reasons that women, not men, experience an economic downfall outside of marriage include: discrimination in the labor market, primary care giving responsibility without attendant employment protections, the lack of quality, affordable, accessible childcare, and domestic violence. Without addressing the factors that keep women from being economically self-sufficient, marriage and family formation advocates are merely proposing to shift women’s "dependence" from the welfare system to marriage. With domestic violence and divorce at their current rates, such marriage is not the answer.

The Minnesota Family Investment Program (MFIP) supports this policy approach. MFIP covered welfare-eligible single and two-parent families and focused on participation in employment-focused services for long-term welfare recipients combined with financial incentives to encourage and support work. These work supports include childcare, medical care, and rewarding work by helping the family to develop enough earning power to survive financially without cash assistance before cutting them off. Studies compared former AFDC recipients to those on MFIP and found that MFIP individuals were 40 percent more likely to be married at the 36-month follow up, and nearly 50 percent less likely to be divorced after five years. The outcomes of the MFIP program suggest that allowing families to combine welfare and work, and providing work supports to help individuals become economically secure, strengthened marriage and reduced the chance of divorce.^xxxi

III. Welfare Reform Reauthorization Should Focus on Ending Poverty

Welfare reform reauthorization must focus on ending poverty. Most of the families who have left welfare remain in poverty and the bottom 20% of families are doing worse economically than they were before welfare reform. Families who have left welfare and are working are still by and large poor. Similarly, families who are reliant on welfare are subsisting on income well below the poverty line. Poverty reduction rather than reduction of the welfare rolls must be the major legislative goal of reauthorization. At a minimum, the TANF block grant needs to be reauthorized at the present funding levels to provide work supports to support families who lose jobs in case of recession. Moreover, lifetime time limits do not make sense in the light of what we know now about the welfare caseload: those who can get jobs have done so; those remaining on the rolls need more time to prepare for non-supported work. A recession may mean that those who did exactly what they were supposed to do – get jobs and leave welfare – will lose their jobs and need income support. Time limits should not deprive families of assistance that they need to survive, especially when all other program requirements such as work outside the home are met. A blueprint for reauthorization with the goal of ending women’s poverty by addressing the issues that cause poverty is attached as an appendix to this testimony.

The solution to poverty is not to interfere with basic privacy rights of poor women but rather to focus on economic self-sufficiency. Decisions regarding marriage and childbearing are among the most private decisions an individual can make. Congress must not use women’s economic vulnerability as an opportunity to control their decisions regarding marriage and childbearing. Fighting poverty and promoting family well-being will depend on positive governmental support for policies that support low income parents in their struggle to obtain and retain good jobs while at the same time providing the best possible care for their children. It is important to focus government resources and efforts on reduction of poverty, not on interference with personal family formation decisions.

• Eliminate promotion of marriage as an anti-poverty goal
• Recognize that marriage is not the solution to poverty and focus on empowering individuals to have the economic freedom to choose.
• Ensure that welfare reauthorization does not discriminate against families.
• Eliminate the family cap in all states.
• Replace "Abstinence-Only" programs with comprehensive sex education programs.
• Repeal the "Illegitimacy" Reduction Bonus.
• Make paternity establishment voluntary, not required.
• Support child support and EITC reforms.

• Insuring use of the Self-Sufficiency Standard to measure outcomes for welfare leavers.
• Targeting good jobs that are available in the local economy and provide education and training   necessary to obtain and retain those jobs;
• Allowing education and training to count as work participation under TANF.
• Protecting basic employment rights for TANF recipients.
• Stopping the time limit clock for working families who still need income support.

• Mandating that all states implement the Family Violence Option.
• Providing incentives for successful implementation of programs for victims of domestic and sexual violence.
• Prohibiting sanctions against victims of domestic and sexual violence.
• Encouraging use of emergency assistance for victims of domestic and sexual violence.

• Strengthening provisions protecting families from sanctions if they do not have childcare.
• Strengthening procedures to get childcare subsidies to TANF families and welfare leavers.
• Limiting childcare co-fees for poor parents.
• Stopping the clock for families who cannot find appropriate childcare.
• Increasing childcare funding.

• Allowing the full-time parenting of pre-school age or disabled children to count as work participation under TANF.
• Making the child tax credit refundable.
• Specifically authorizing states to provide in-home caregiving allowances.
• Raising rates for childcare providers.

• Making child support cooperation requirements voluntary.
• Insuring appropriate levels of obligation for non-custodial fathers.
• Insuring that families on welfare receive some of the money paid by the fathers.
• Disregarding any child support payments passed through to a family receiving benefits.
• Insuring that families that have transitioned off welfare receive all child support they are owed before the state reimburses itself for past assistance.

xxiv. See Joan Zorza, Woman Battering: A Major Cause of Homelessness, 28 Clearinghouse Rev. 383, 384-85 (1994).