Leveling Up and Leveling Down: A (Probably Tenuous) Connection Between Home Ownership and Gay Marriage

-- Posted by Neil H. Buchanan

I am currently attending the Law & Society Association's annual meeting, which began on Tuesday and ends today. This past Monday, the day before the larger conference began, the FemTax Working Group -- a new international collaboration of tax scholars whose work is informed by feminist legal theory, which was recently created by Asa Gunnarsson, Ann Mumford, Paloma de Villota, and Kathy Lahey -- held a one-day conference on "Feminism, Taxation, and Fiscal Policy." The full-day event was a testament to the importance of bringing together a global group of scholars, to think creatively about important issues, and especially to do so in a way that highlights feminist concerns.

One presentation at the FemTax conference especially caught my attention. Lily Kahng, a tax law professor at Seattle University (and a top-notch intellectual) offered some preliminary thoughts on a new project that she is developing. She is beginning to investigate the gendered aspects of the policies that encourage home ownership in the United States, thinking about how our policy choices in the area of housing have the effect of favoring men over women (just as they tend to benefit the wealthy over the non-wealthy, and whites over non-whites). I will leave aside for now the reasons for these unfortunate outcomes, but the evidence is overwhelming.

Professor Kahng shares my skepticism about the entire pro-ownership housing policy regime. Putting people in the position of preferring an undiversified portfolio seems perverse, especially when so many middle class people have NO other financial assets at all. Still, the current policy regime does shovel money into the hands of homeowners. For those who are not forced to sell when the market turns down, the financial advantages of home ownership are substantial.

Listening to Lily's comments, I made a quirky logical connection. (I confess that making odd connections like this is not unusual for me.) As I thought about the question of whether we should put more poor people into owner-occupied houses, or instead move more non-poor people out of owner-occupied houses, it suddenly struck me that we might be looking at another example of the "leveling up or leveling down" question.

That question was most famously raised in the Supreme Court's 1971 Palmer v. Thompson case, in which a majority of the Court held that the city government of Jackson, Mississippi did not violate equal protection by closing the city's pools, rather than integrating them. If the choice is "everyone gets it, or no one gets it," the Court held that there was no equal protection violation when the city decided that it would rather that no one be able to swim in public pools, rather than having whites and blacks swim in the same water.

As many readers know, this logic has recently been applied to the gay marriage debate, in which some apparently well-meaning people have suggested (as I noted in a recent Dorf on Law post) that the government should simply "get out of the marriage game." Doing that (leveling down), however, would validate the animus against gays that apparently motivates many opponents of gay marriage, who refuse to extend marriage to everyone (leveling up). Leveling down is based on the idea that some people hate gays so much that they would rather that no one have it than that everyone have it.

As a matter of first principles, we probably would not invent marriage, if it did not already exist. There are many problems with the institution, many of which have not been fixed after centuries of trying. At the very least, we would not have developed laws and social norms that push people into marriage. Yet here we are, in a world where singles are often treated as social rejects, oddities who should try harder to find their one true love. In that world, where marriage is an expected part of life, leveling up is essentially the only option. Jackson, Mississippi might have been willing to close its pools, but Americans are not going to stop getting married (and taking advantage of the legal and social incidents of marriage) simply because some single (gay and lesbian) people want in on the advantages of legal marriage.

Which brings me back to my campaign against home ownership. As an initial matter, we should not have pushed people into home ownership. Because we have, however, we must either figure out a way to level down (remove the incentives to home ownership, or even eliminate it as a legal option) or level up (bring the advantages of home ownership to everyone).

I hasten to add that the dignitary aspects of the two sides of my analogy are completely different. That is, the consequences of leveling down in housing are mostly financial, whereas the consequences of leveling down in marriage are a matter of human dignity. The analogy (like all analogies) is thus incomplete. Even so, the difficulties in imagining a fair way to unwind the policy regime favoring home ownership -- especially in a way that does not destroy the net worth of people who currently own homes -- make it nearly impossible to imagine how we would go about eliminating the pro-ownership rules and norms. Similarly, it is nearly impossible to imagine people giving up on government recognition of marriages.

All of which brings me back to a Dorf on Law post from earlier this year, written by frequent guest blogger Professor Bob Hockett. In the best-titled blog post ever, "Nest Eggs and Nests: A Brief Meditation on Neil Buchanan, Alexander Hamilton, Thomas Jefferson, Arrow Securities, Unicorns, Zebras, Dogs, Fire Hydrants and ... Oh Yah, Mortgage Relief," Bob offered a path to leveling up. Essentially, he is engaged in the difficult work of taking an inherently bad idea (universal home ownership) and making it work as well (and as fairly) as it can.

Professor Kahng's project could enrich this investigation in profoundly important ways, by making sure that we understand just how unfair the current system is for women (and other historically disfavored groups), exposing the hidden gendering of the home ownership regime. Although she currently is still in the leveling down camp, based on the completely defensible belief that we should figure out a way to pull apart the cult of home ownership, I am hoping to convince her at least to consider how her analysis could make a pro-ownership system more fair.

As for me, I readily admit that my revised view on policies toward home ownership coincides with my purchase of a home. Cynics might suspect that where I stand is partly determined by where I sit (and sleep). I can only say that the sticking point in my campaign against home ownership all along (see, e.g., here, long before I decided to buy a house) was the transitional question -- trying to discourage home ownership while honoring the investments that people have made, in good faith, in their versions of the American Dream. Having now concluded (at least tentatively) that there is no way to make that transition, I think it is important to figure out how to go in the opposite direction, to reach a fair result. But if I am to be accused of hypocrisy or opportunism, I can understand why.

The important thing is to understand that the best way forward might be to accept that we are stuck with a bad initial idea. If we can get others to assist Professors Hockett and Kahng in thinking through ways to help all people benefit from home ownership -- and to protect them from the very real risks to which home ownership exposes vulnerable people -- then we can make progress. I, for one, am willing to consider that I should stop obsessing over a ship that has long since sailed.