The tax code is racist

And it's sexist, too

President Donald J. Trump celebrates the passage of the Tax Cuts Act with Vice President Mike Pence, Senate Majority Leader Mitch McConnell, and Speaker of the House Paul Ryan | December 20, 2017 (Official White House Photo by Joyce N. Boghosian)

I absolutely cannot wait until I can sit down and blaze through all of Dorothy A. Brown’s new book, The Whiteness of Wealth: How the Tax System Impoverishes Black Americans — And How We Can Fix It. Brown is everywhere this month, from the cover of Businessweek to the New York Times op/ed pages to NPR to the Atlantic. You’ve gotta be a pretty incredible thinker and writer to get the American public to care about the minutiae of the tax code, but Brown does it.

You should read all of the pieces linked above, and Brown’s book, but I want to dig into what Brown wrote for the Atlantic about about the tax code’s marriage penalty for Black families. It’s totally fascinating — we think about the tax code as race-neutral (and frankly just… neutral-neutral), and certainly on its face it is. But in reality, the tax code reflects the lives, assumptions, and aspirations of those who wrote it, and those who challenge and change it. In the U.S., that means mostly wealthy white men.

Brown notes that a century ago, Americans filed individual tax returns regardless of their marital status. But a wealthy Seattleite with a stay-at-home wife found that unfair; Washington is a community-property state, meaning that married couples are entitled to each other’s assets, and so why, this man thought, shouldn’t his wife claim half of his income for tax purposes so they would each pay a lower rate? There’s a whole fascinating story complete with Supreme Court wins and losses, all of which Brown documents in her piece, but the topline is that this all culminates with a new tax law, passed in 1948, that allowed married couples to file jointly and gave a huge financial windfall to married couples with one working spouse (almost exclusively the husband) and one who stayed home (almost exclusively the wife).

It didn’t do squat for couples where both partners worked — and those couples, Brown notes, were disproportionately Black. The one-earner model may be trumpeted as a “traditional” ideal, but in reality it was a largely white tradition. And so two-earner couples — disproportionately Black couples — wound up paying more in taxes than their one-earner, largely-white married peers.

This did not happen by accident. “Everything comes down to who has a say,” Brown writes. “In 1948, only two Black Americans were voting members of Congress, and the law of the land was ‘separate but equal.’ Black Americans were paying taxes for government benefits that excluded them.”

After the marriage-benefit tax change went into effect, single white men began complaining that they were penalized for their single status. So Congress amended the tax code in 1969 to decrease the singlehood penalty — but that decrease came largely at the expense of equal-earning couples, who found themselves financially penalized for being married and both working for pay. Thee dual-earning couples who earn roughly the same amount, and who saw the most significant penalties, Brown points out, just “happened to be disproportionately Black.”

There’s a lot to think on here, but what keeps rattling around in my head is this line from Brown: “Everything comes down to who has a say.”

I read this essay around the same time as various corners of the internet were, again, arguing about women working outside the home, with liberal feminists and socialist feminists debating against both conservative anti-feminism and a strain of gender-traditionalist and anti-feminist socialism. The Biden administration included as part of its relief package a child benefit, basically a cash payment to parents, unlike anything the U.S. has ever seen. The response from feminists of nearly all stripes, including me, was resounding enthusiasm — all of us want a more generous welfare state, and we certainly want more support for parents (and for mothers specifically, who continue to do the vast majority of our nation’s parenting). But some feminists (including me) have pointed out that when it comes to family-friendly social welfare policies, the details of the policies themselves matter quite a bit, and should be tailored to achieve their goal. The most on-their-face generous policies are not always the ones that are the best for families, and often have pretty regressive outcomes for women.

Scandinavian and European countries have gone through many iterations of this, and have come up with a variety of family policies that create really different outcomes. There’s a study I cited in my first book that I now cannot find for the life of me, but it essentially categorizes various parental leave policies according to what aspect of women’s lives the state prioritizes: There are “worker-first” states that see women primarily as workers and only secondarily as parents (the U.S. is one of these); there are parent-first states that prioritize women’s roles as mothers first and workers second (Germany is one of these); and there are states that attempt to balance both, seeing women as having an equal stake in both work and parenting (Sweden is one of these). These ideas of what women should be impact policy — in the United States, for example, there simply is no parental leave policy because this worker-first mentality is also coupled with a kind of extreme individualism and idea of motherhood as sacrifice. Why should the state step in when the best family set-up is for a man to head the household, and anyway, you chose your choice? (This distorted language of “choice” that continues to infiltrate the parental leave discussion is also, I would argue, one reason we don’t have parental leave).

In Germany, for example, mothers (and only mothers) can take up to three years of leave when they have a child (fathers get some leave, but far less). As a result, Germany has startlingly low workforce participation among mothers — less than half return to work after two years — and one of the largest gender pay gaps in Europe.

Sweden has done things differently, making longer parental leaves contingent on men taking them, too. Both parents get 18 months off for a new baby, and Sweden has a complicated carrot/stick model that gives families less total leave if men take none, and more if men take some. In two decades, Sweden saw its female labor participation increase from about half to nearly 85%.

Policy, in other words, creates incentives and drives outcomes; we all know this, which is part of why we debate the details of policy changes. Cultural norms and pressures create incentives, too, and make certain decisions feel intuitive and logical even if on the face of it they are not. If the issue really were that the best family set-up is for one parent to stay home and the other to work, and it’s simply a matter of individual family decision-making, then fine — we’d expect to see a relatively equal distribution of stay-at-home moms and stay-at-home dads. But we don’t. And we’d expect to see that similar financial circumstances produced similar results regardless of gender — but they don’t.

For example, it’s overwhelmingly women who drop out of workforce when a couple has a child, and there’s always a reason — it’s just that the reason changes depending on the circumstances, while the result (she quits) is almost always the same. Maybe she makes less money than her husband, in which case the reason is that her salary barely covers the cost of childcare (as if childcare is simply a mother’s obligation and not a shared one). Maybe she makes more money than her husband, in which case he is still making a name for himself in his field and needs these crucial years to better position himself for the future. Maybe she’s still making a name for herself in her field and needs these crucial years to better position herself for the future, but, well, she makes less money so it just makes sense. I hear this all the time: No matter the set up, it just made sense that she dropped out of work. And I’m sure it did; it always does. But let’s not pretend that “makes sense” is a neutral concept — that it’s ever purely about finances, or future betterment, or individual skill sets. It calls in deeply and widely-held ideas about whose role involves what, and what our obligations are based on whether we’re men or women.

Which is why it’s so frustrating, in the U.S., to see the conversation about work and motherhood and policy to be glossed over as merely a matter of “choice” — “work if you want, don’t if you don’t” — as if that’s a choice most people even have, as if that’s a choice most men really consider, and as if choice itself is purely about one’s whims, or even one’s clear-eyed assessment of the costs and the benefits and the lost earnings and the potential vulnerability one is signing up for for the rest of one’s life, and not about where we’re collectively funneled.

What’s also lost in these conversations is what Brown points to: “Everything comes down to who has a say.”

Whether we like it or not, we live in a capitalist country where money matters. We also live in a representative democracy, and who our political leaders are matters, too. In the long hangover from the 2016 Democratic primary, it remains popular in some leftist circles to roll one’s eyes at the idea that representation matters, that having more women and people of color in office isn’t just basic representative fairness (although it is) but also changes how the political sausage gets made. But Brown’s book points to exactly this: When the tax code is written mostly by wealthy white guys with stay-at-home wives and amended by wealthy white single guys with future stay-at-home wives in the broader context of a separate-but-equal (and, really, vastly unequal) society, the tax code reflects their experiences and their interests. It entrenches their wealth. It puts everyone else at a disadvantage. Ditto every other public policy and political choice, from health care (abortion and contraception are routinely excluded, pregnancy care often not fully covered) to parental leave policies to safety and infrastructure to national defense and foreign policy.

When women are overwhelmingly the ones at home and men are overwhelmingly the ones out in the public sphere — in the space of politics and economics and art and culture and work for pay — it’s men’s lives that set the standard for all of us. When white people dominate the industries that shape not just American politics but American identity, it’s white people’s lives that are treated as the neutral default. The penalties — like the marriage penalty Brown points to, which hits Black families disproportionately — are made indivisible.

This came up a lot during the #MeToo movement, and it remains relevant: Who is in charge of telling our cultural stories? Of making the movies that define us and change us? Of determining what’s newsworthy and how it’s covered? Of writing our laws, enforcing them, litigating them, challenging them, and judging them? Of determining what acts of labor are worth what? The public / private divide has always been an artificial and man-made one, but that doesn’t make it any less real when you’re living it. And it’s a gendered one — when women dominate the private sphere and are funneled out of the public one, we’re not just individually economically (and physically) vulnerable; we’re largely absent from the process of building the invisible structures that give shape our collective lives. That’s so much bigger than “choice.”

This is not to say it’s on any one woman working her way through a vastly unfair system to make decisions with all of womankind in mind. It is to say, though, that individual choices about whether to stay home or work are not made individually at all; they’re made against a vast backdrop of thousands of years of male dominance, and several centuries of explicit white male political rule in the United States. Things we believe to be neutral, whether it’s the tax code or the individual “choice” to stay home, are not. Everything comes down to who has a say.

xx Jill