Race, Class, and Gender Essentialism inTax Literature: The Joint Return

[T]ax-law decisions are cultural artifacts - understood as a part of a larger societal structure and, simultaneously, revealing of that culture.1 I. Introduction The current literature discussing the federal tax laws' gender bias ignores all racial differences among women.2 Even the few authors who have acknowledged class distinctions similarly ignore racial differences among women.3 This Article demonstrates how the literature's gender essentialism masks the bias in the federal tax laws based upon race, class, and gender in ways previously ignored. For example, the literature focuses exclusively on the tax consequences of married women as marginal or secondary wage earners.4 The literature concludes that the gender bias of federal tax laws operates to encourage women to remain at home and out of the waged labor market.5 The literature's solutions, therefore, are designed to encourage women to work more in the waged labor market. The literature's gender bias analysis can be correct only if all married women are marginal wage earners. This Article examines never before published Census Bureau data to show that many married women are not marginal wage earners.6 Accordingly, an analysis of the gender bias in the federal tax laws from a non-essentialist perspective is needed. This Article provides such an analysis. This Article demonstrates that the married women most likely to be marginal wage earners, namely those who are the exclusive focus of the literature, are upper-income and white. In addition, the married women least likely to be marginal wage earners, namely those who were previously ignored by the literature, are most likely to be African-American. By constructing all families as homogeneous, the literature successfully masks any race, class, or gender bias that may be embedded in the operation of the federal tax laws. As Professor Fellows notes, "the hallmark of successful subordination is when subordinating actions and beliefs become so accepted that they become indisputable and widely accepted as reflecting fairness and objective truth."7 This Article unmasks the race, class, and gender biases in the federal tax laws previously ignored by questioning the "indisputable and widely accepted truth" articulated in the gender bias tax literature that all married women are marginal wage earners. Part II provides a summary of the existing gender bias tax literature.8 It begins with the literature's treatment of all husbands as primary wage earners and all wives as marginal wage earners.9 It then describes three federal tax provisions and policies that the literature suggests interact to penalize married women and their families when married women are marginal wage earners, namely: (I)the operation of the joint return which is designed to treat married couple as a single taxable unit;10 (2) the exclusion from income of the value of services contributed by a spouse to their household;11 and (3) the deductibility of child care expenses.12 Part II concludes by describing the literature's suggested solutions to the gender bias found in the federal tax laws.13 Part III examines Census Bureau household income data to show how the literature's treatment of all married women as marginal wage earners is overinclusive.14 Many married women are not marginal wage earners, but contribute significant amounts to household income.15 Once differences among married women are recognized, the federal tax laws must be re-examined for race, class, and gender biases previously ignored by the literature. For example, the federal tax laws penalize households in which spouses contribute roughly equal amounts to household income.16 This Part shows that AfricanAmerican households are more likely to pay a penalty under the federal tax laws because African-American spouses are more likely to contribute roughly equal amounts to household income.17 Part IV examines the solutions previous literature has designed to address the gender bias found in the federal tax laws. …