The United States poverty law has been subjected to devastating criticism by scholars working within the radical egalitarian paradigm. They have demonstrated the extent to which poverty assistance programs have offered, at most, inadequate benefits, excluded large numbers of extremely low-income families for arbitrary reasons, and perpetuated racial, ethnic, and gendered forms of discrimination.Footnote ¹ Many of the bipartisan champions of the major welfare reform law, the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), nevertheless consistently attempt to justify their policies in moral terms, and they often invoke liberal democratic tropes when they do so. They claim that welfare reform protects and enhances the individual's rights, such as the right to work in the wage labor market, the right to earn one's living in a dignified manner, the right to become a respected head of a family and member of the community, the right of low-wage earners to work supports such as child care, the right of the poor to receive basic health care and food vouchers, the right of individuals with severe disabilities to receive cash benefits and essential services, and so on (Clinton Reference Clinton1996). These welfare reformers claim that they are liberating poor single mothers from an oppressive cycle of dependency and opening up opportunities for their self-development through job-skill training and work experience programs.Footnote ²

In this article, I assess the merits of the normative arguments for welfare reform in the United States that draw upon liberal democratic principles. Can welfare reform be defended as a policy that adequately respects, protects, and promotes the individual's rights? By the same token, when policymakers ideologically position themselves within the liberal democratic tradition, do they contradict their self-proclaimed liberal democratic commitments if they also endorse welfare reform?

I narrow the scope of my analysis by focusing largely upon one specific dimension of welfare reform, namely, paternafare.Footnote ³ Under the latter rule, the low-income single mother must name the biological or marital father of her children and assist the state in pursuing him for child support. Since the passage of PRWORA in 1996, the welfare recipient in the Temporary Assistance for Needy Families program (TANF) now faces severe penalties for failing to make what her caseworker considers to be a “good faith” effort in this respect. In many cases, she is “sanctioned” and suffers a reduction in her already inadequate benefit as a result. In a significant number of cases, she is expelled from the program altogether. At any given moment, about 20 million adults are being targeted by the paternafare system (Turetsky Reference Turetsky2003).

The paternafare dimension of welfare reform has not been adequately discussed in the scholarly and advocacy literatures; it has certainly not received the same attention as the compulsory work requirement.Footnote ⁴ The paternafare system implicates many normative and public policy questions that are at the heart of feminist concerns, such as the regulation of the family, parental rights, the distribution of caregiving costs and burdens, the single mother's right to poverty assistance, and the intersection of gender, race, and class structures. Leading feminist policymakers, such as Secretary of State Hillary Rodham Clinton, and at least one major advocacy organization for low-income families, the Center for Law and Social Policy, have enthusiastically endorsed this policy (Clinton Reference Clinton2003, 365–69; Turetsky Reference Turetsky2007). At the same time, the ethnographic evidence suggests that poor women themselves have positions on paternafare that range from ambivalence to strong opposition.Footnote ⁵ For these reasons, paternafare deserves special attention from feminist scholars.

Martha Fineman and Gwendolyn Mink have offered what I regard as a devastating critique of paternafare, and I myself have attempted to build upon their insights in my own work on the subject.Footnote ⁶ Each of us has argued that we ought to scrap TANF and the paternafare system altogether and replace them with a well-funded universal caregiver's entitlement. However, a critic could fairly charge that each of us has “talked past” the welfare reform supporter who reaches for liberal democratic tropes in crafting her legitimation discourse. A liberal feminist might have very strong objections to the strands of radical egalitarian thought that run through our work; she might argue, for example, that we do not adequately respect the individual's right to pursue her own interests insofar as we call for extensive governmental intervention in market relations and require substantial redistributive policies. In this article, then, I propose to put my own radical egalitarian commitments to one side for the moment in order to talk to the liberal feminist supporter of paternafare on her own terms.

Martha Nussbaum's capabilities approach provides us with a useful framework for this dialogue on welfare reform and paternafare. Under Nussbaum's scheme, a just society must establish, secure, and promote the entitlements related to the core capabilities for every individual on an equal basis, without exception or discrimination (Reference Nussbaum2006a, 76-8). Further, Nussbaum takes an approach to distributive justice that should be quite compatible with the worldview of many liberal democrats. Unlike the radical egalitarians, she tends to eschew distributive policies that would necessitate profound interventions in the capitalist market. In her just society, for example, we only need to ensure sufficiency for all where income and housing are concerned. Nussbaum leaves open the possibility that some political forces will pursue further egalitarian gains, but, strictly speaking, their achievement is not morally required (2000, 75).Footnote ⁷ Finally, her theory of justice is particularly well suited to this analysis insofar as she pays close attention to various forms of gender oppression throughout her work; in particular, she has written extensively about gendered impoverishment as a particularly severe form of capability deprivation.

NUSSBAUM'S SOCIAL MINIMUM

For Nussbaum, justice consists, first and foremost, in treating each and every individual as an end in herself, and never solely as a tool for the pursuit of another person's ends. The individual's freedom to exercise the 10 core capabilities—the actions and states of being to which each individual must have access to lead a life worthy of human dignity—is guaranteed only where the individual is fully endowed with the corresponding entitlements. Without the right to food, for example, the individual may not be able to access the “Life” capability: the ability to live to the end of a human life of normal length (Reference Nussbaum2006a, 76). Where other liberals such as John Rawls (Reference Rawls1999, Reference Rawls2001) defend their conceptions of liberty and equality with reference to social contract theory, Nussbaum begins with the entitlements corresponding to the core capabilities and then builds up a philosophical argument for the duty of governments to secure and promote these constitutional rights (2000, Reference Nussbaum2006a).Footnote ⁸

While Nussbaum consistently champions the socioeconomic entitlements—which are usually framed by her in “sufficiency” terms—she also insists upon the individual's right to be free from arbitrary governmental interference (2000, 14). Consider, for example, the capabilities listed under the rubric, “bodily health”: “Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter” (Reference Nussbaum2006a, 76). In a just society, there would be no trade-offs; the state would deliver the bodily health minimum entitlements without failing to protect and promote the other nine capabilities at the same time, including the right to be treated as a dignified being of equal worth, and the right to be free from unwarranted search and seizure (p. 77).

For Nussbaum, then, the state has multiple duties. For example, it must provide a subsistence income to the needy, but, at the same time, it must uphold and promote the liberty of each and every individual, including the poorest of the poor. By the same token, the scope of the individual's justifiable liberty interests is limited. Because Nussbaum's constitutional entitlements involve fundamental issues of justice (2000, 53), the individual's right to enter into a market contract and to keep the fruits of her own earnings in the competitive labor market can be reasonably curtailed by a state seeking to collect income taxes, as long as the state uses the revenues for permissible purposes, such as the satisfaction of the minimal entitlement claims of needy individuals (pp. 54–55).

Nussbaum is consistently attentive to the fact that the individual's ability to exercise her liberty rights has material preconditions. In Women and Human Development (2000), she relates the story of Jayamma, a destitute but fiercely proud Kerala woman from a lower caste who has retired after working for decades as a brick carrier. Technically, Jayamma has always possessed the right to pursue an education; there was no law that actually stopped her from becoming literate or attending school. Nussbaum writes, “Jayamma in a sense had the choice to go to school, but the economic circumstances of her life made this impossible” (2000, 52). To transform the abstract right to choose education over wage earning into a genuine opportunity—that is, to place Jayamma in a condition in which she could actually exercise her free will—she must have more than abstract rights. She must be materially moved into a position where the meaningful exercise of her right to education becomes possible (p. 54). Without access to the necessary material and institutional resources, Jayamma's liberty to gain an education merely amounts to “rights on paper” (p. 54).

Nussbaum readily concedes that her list of 10 capabilities in no way exhausts the actions and states of being that could be exercised by an individual leading a good life according to his or her own personal worldview. As individuals subscribe to a wide variety of comprehensive theories of the good, they tend to value different ways of being; for Nussbaum, the encouragement of diverse experiments in living is a good in itself. The capabilities grouped under the 10 rubrics that she lists are meant to be “central,” rather than exhaustive. These human capabilities are of “central importance in any human life, whatever else the person pursues or chooses” (2000, 74). They have “value in themselves,” but they also play a “pervasive and central role in everything else people plan and do” (p. 75). Like Rawls's primary goods, the central capabilities enumerated by Nussbaum “mak[e] any choice of a way of life possible” (p. 75). It is for this reason that they have a “special claim to be supported for political purposes in a pluralistic society” (p. 75).

THE “UNDUE BURDEN” METAPHOR

In Nussbaum's just society, the low-income single mother would enjoy the right to governmental assistance necessary for lifting her income up to the basic social minimum. Would Nussbaum allow the state to attach eligibility requirements to its poverty assistance program? If so, which ones would be permissible? In legal terms, there are established constitutional principles that define the limits of permissible governmental encroachment where the individual's rights are concerned. That limit is sometimes referred to as the “undue burden” test. In Planned Parenthood v. Casey (505 U.S. 833 [1992]), for example, the Supreme Court struck down Pennsylvania's spousal notification rule as an impermissible “undue burden” on the pregnant woman's right to privacy.

I would concede that it is impossible to lift the undue burden doctrine directly out of the Casey decision and apply it, without modification, to the analysis at hand. It is essential that the Court first decided in Casey to uphold Roe v. Wade (410 U.S. 113 [1973]) before it turned to its assessment of the restrictions that the state of Pennsylvania was placing upon pregnant women seeking abortions. The Court first reaffirmed that a pregnant woman has a right “to choose an abortion before viability and to obtain it without undue interference from the State” (Casey at 846). After recognizing the pregnant woman's right to privacy, the Court could then ask whether Pennsylvania's law requiring, among other things, that she obtain the consent of her spouse constituted an undue burden.

The key welfare law, PRWORA, eliminated the statutory entitlement of the needy parent to poverty assistance in 1996. In the case at hand, then, there is no state recognition of the right to the cash benefits necessary for lifting the low-income single mother up to Nussbaum's threshold that is logically prior to the TANF recipient's right to be free from undue burdens in the form of excessively restrictive eligibility rules. Strictly speaking, we cannot ask if a given TANF rule constitutes an undue burden on the low-income individual's right to aid since, under the current law, there is, at present, no federal right to poverty assistance in the United States. We can only borrow from Casey, then, in a loosely defined and indirect manner. If we inhabited a hypothetical world in which the low-income single mother actually did possess an enforceable right to adequate poverty assistance, would Nussbaum agree that the state could impose the paternafare rule as a condition of eligibility, or would she decide that it would create an undue burden on that right? To focus our analysis more sharply, we will assume that many of the other TANF eligibility requirements, such as the compulsory work requirement and the time limits, have been lifted. As we saw previously, Nussbaum locates the right to poverty assistance under the class of rights in which the government's duty is to ensure access to adequate shares, rather than equal shares. We will therefore assume, for the present at least, that Nussbaum would not object to TANF's means test.

In our hypothetical world, TANF is designed only to lift up the incomes of the worst-off to the basic social minimum that is specific to the contemporary American sociocultural context; applicants must demonstrate that when their income and wealth are compared to that of other individuals and families in the community, they occupy the very lowest socioeconomic brackets. Nussbaum argues that any individual who suffers from severe deprivation is forced to lead a degraded existence as her whole being becomes necessarily fixated on sheer survival; thus, the truly human level of functioning is placed beyond reach (Reference Nussbaum2006a, 74–75). Further, in a society with an extreme degree of inequality, it is highly likely that the individuals occupying the lowest rungs on the socioeconomic ladder will not be treated as dignified beings whose moral worth is equal to that of others. For these reasons, then, Nussbaum holds that a just society must ensure that the destitute receive adequate nutrition and shelter (p. 76); we could argue on this basis that she should endorse a means-tested poverty assistance program that provides cash benefits to the needy.

Nussbaum would want to ensure that poverty assistance would be provided to all low-income individuals. In order to concentrate the discussion upon caregiving, however, we will accept, without discussion, the TANF rule that excludes any adult individual who is not caring for a dependent child from the program. In sum, then, the applicant in our hypothetical world approaches the TANF program armed with an enforceable right to poverty assistance, but she must be caring for a dependent minor, she must demonstrate that she is poor enough to meet the means test, and she must comply with the paternafare rule.

An initial review of the ethnographic literature raises suspicions that the paternafare requirement may not, in fact, meet Nussbaum's standards. Interview data overwhelmingly suggest that the low-income single mothers who do enter the TANF program strongly resent the paternafare rules. They believe that the absent fathers of their children should contribute to their household income, but they emphatically state that they prefer to deal with these men on their own terms. At most, they want to be able to get the government involved as a “last resort” tactic. Almost all of them have sound reasons to conclude that the men who would be named as payers in the system actually do not have enough income security to meet the monthly child support obligations on a regular basis.Footnote ⁹ In addition, it may be the case that low-income women are “voting” on paternafare “with their feet.” The proportion of poor families who meet the means-test standards and yet fail to obtain assistance is continuing to grow in the midst of our recession. Although the data necessary to establish a causal relationship are lacking, it is possible that many needy mothers are avoiding TANF altogether because they feel that the paternafare burden is too onerous (Smith Reference Smith2007).

The testimony of the women who are actually dealing with the paternafare system on a daily basis constitutes indispensable evidence. However, their testimony, on its own, is insufficient for our present purposes. It is possible that the preferences of the TANF recipients have been warped by numerous encounters with caseworkers who are not properly implementing the program's rules. Their criticisms certainly alert us to the possibility of some kind of rights violation, but we need to investigate further to decide whether TANF law itself is illegitimate or whether the recipients' rights are being violated because a legitimate law is being inappropriately applied. There is also the possibility that the preferences of women who are immersed in a condition of serious deprivation are based upon inadequate information, or are shaped by economic coercion and restricted expectations. In many cases, feminists rightly refuse to take a gendered plebiscitary approach to political decision making. At times, feminists have to set the stated preferences of women aside in order to promote gender equality and social justice (Levey Reference Levey2005; Nussbaum Reference Nussbaum2000). Since it is possible that low-income mothers' preferences represent an adaptation to unjust conditions, rather than a truly voluntary and informed expression of self-determination, some feminists may be reluctant to rest the entire case upon their testimony. For this reason, we have to treat the TANF recipients' opposition to paternafare as nondeterminative, and weigh it in light of further evidence and argumentation.

“PATERNAFARE” AND THE CAPABILITIES-ORIENTED UNDUE BURDEN TEST

Advocates for the paternafare system, such as Secretary of State Clinton (Clinton Reference Clinton2003, 367), have advanced several plausible justifications for the policy. First, they point to the fact that support payments do improve the conditions of some TANF households every year. In 2002, the states collected about $10 billion in support payments related to current or former TANF paternafare cases (Turetsky Reference Turetsky2003, 5). The state establishes a reimbursement figure for each case; this amount is equivalent to the value of the cash benefits that the TANF participant receives. The state typically seizes the payer's entire support payment until the reimbursement level is met. At most, it “passes through” a token amount of $50 to the TANF recipient herself. After the payer meets the reimbursement level, however, the state is supposed to direct his entire support payment directly to the custodial mother.Footnote ¹⁰ Given the fact that a small fraction of the payers do cooperate and do have an adequate income-earning capacity that allows them to meet their support burden in full (Turetsky Reference Turetsky2007), a limited and yet significant number of TANF households benefit substantially from the system. About 36% of the households below the poverty line that are headed by single mothers and include dependent children received child support from an absent parent in 2001. For these families, child support payments made up, on average, about 30% of the total household income (Sorenson Reference Sorenson2003).

Paternafare supporters also argue that the policy has positive effects even where the payer cannot meet his payment schedule. They contend that paternafare properly shifts the burden of supporting the low-income single mother and her children to the absent marital/biological father. The policy teaches both the custodial mother and the absent father that society frowns upon “irresponsible reproduction”: the conception, birth, and rearing of children within households that do not possess an adequate income-earning potential. They believe that paternafare properly underlines the importance of sexual restraint or contraception among the heterosexual couples who are destined to live out their entire lives at the bottom rungs of the income ladder. The supporters claim that paternafare rightly ensures that the marital/biological fathers will pay for the upkeep of their children. Paternafare thereby corrects the gendered deficit with respect to caregiving. More generally, paternafare promotes the idea that every household should turn to society as a whole for support only in the wake of an unforeseen accident, a natural disaster, or an unavoidable condition that interferes with the individual's ability to work. For virtually everyone else, the principles of self-sufficiency and the work ethic require us to withhold aid such that the poor will be spurred to rely upon their own wage-earning efforts.

From Nussbaum's perspective, however, these arguments are seriously flawed. She would only endorse restrictive eligibility conditions for a poverty assistance program if they did not violate the entitlements specified under each of the 10 capabilities. In my view, an undue burden test that is crafted with reference to Nussbaum's capabilities theory, and designed to determine the permissibility of an eligibility rule for a subsistence income or housing program, would have four prongs. First, the poverty assistance program must treat the most vulnerable individual as an end; she cannot be treated solely as an instrument for the pursuit of someone else's interests. Second, the program cannot prioritize family well-being over individual rights. Policies that deliver increased income for the family as a whole but encroach upon the rights of individual family members would not be acceptable (Nussbaum Reference Nussbaum2000, 246–47). Third, the principle of nonfungibility necessitates the achievement of the threshold level of entitlement and protection for the individual in each of the 10 capabilities; the state is not allowed to press the recipient to accept trade-offs. Fourth, the program must uphold the threshold rights of each and every individual, without discrimination against the members of any particular social group.

Regarding the first prong, paternafare treats the single mother on welfare solely as an instrument, without also treating her as an end in herself. She is, in effect, being coerced by her desperate economic circumstances into serving as the state's proxy tax collector. Because the TANF recipient assigns the support payments over to the state until the reimbursement level is met, the state regards paternafare exclusively from the perspective of its fiscal interests. The state's primary objective is to seize the support payments to pay itself back for her TANF cash benefits, and to set up an enduring legal support obligation between the payer and the custodial mother that makes her ineligible for means-tested poverty assistance. The state is drawing upon its own family law code with respect to the paternity of marital and nonmarital children in targeting the absent father, but it lacks the adequate administrative mechanisms to identify the absent payer on its own (Smith Reference Smith2007, Reference Smith2009). This is especially true where the absent father has no marital tie to the custodial mother and merely has a biological relationship with her children. Thus, the low-income single mother's paternafare cooperation is indispensable to the advance of the state's fiscal interests. Even if the state's claim against the absent father were morally defensible, the only acceptable way for the state to collect would be to pursue him as a separate matter, without reference to the TANF recipient's eligibility. The state should not be allowed to coerce the low-income single mother to serve as its informant in order to collect what is essentially an absent father tax.

What if the government adopted a 100% pass-through and forwarded virtually every penny of the absent father's payments directly to the custodial mother on welfare? What if the government also disregarded those payments when it calculated her eligibility for benefits and the value of her benefits? A supporter of paternafare might attempt to cite Nussbaum's principles to defend a version of child support enforcement that adopted these reforms. Paternafare, she might argue, furthers the single mother's interests insofar as caregiving ought to be officially recognized as a form of socially valued work. By collecting mandatory paternafare payments from the biological or marital father and then forwarding them to the single mother, the state is enhancing what Nussbaum defines as her tenth set of capability entitlements, which includes, among other things, her right to enter into “meaningful relationships of mutual recognition with other workers” (Nussbaum Reference Nussbaum2006a, 78). In actual practice, however, the paternafare requirement does not constitute a public medium through which the state confers respect and dignity upon the custodial mother's caregiving work. The monthly payment is calculated as a proportion of the payer's income-earning potential; it is not designed to reflect fair payment to the custodial mother in return for her actual effort. If we divided the monthly payment (the payer is typically ordered to submit between $225 and $300 each month to the state; see Turetsky Reference Turetsky2007, 2) by the total number of her actual caregiving hours, we would end up with a miserably low wage rate. This would be especially true where the custodial mother is caring for a newborn or a child with special needs. In our culture, a person cannot garner respect and dignity from her family, friends, and neighbors simply by showing them that she is being paid a fraction of the minimum wage for every hour of her care work.

We can grasp the extent to which the state prioritizes the TANF family's well-being over that of the mother, relies upon violative trade-offs, and thereby fails the second and third prongs of the undue burden test, by considering the paternity identification protocols. Under federal and state law, the TANF applicant who has never been married is required to name the biological father of her children.Footnote ¹¹ In some cases, the putative father rejects her allegation. The custodial mother and putative father are then shuttled through an administrative process. They are required to file sworn affidavits documenting their respective sexual conduct during the time of the probable conception of the child in question. If the paternity dispute is not resolved at that stage, both adults and the child must provide samples for DNA testing. If the putative father is disqualified by the DNA tests, the custodial mother must start the paternity allegation procedure all over again. In order to satisfy the “good faith effort” standard, she must be able to produce the name of a man who accepts her paternity allegation, or who is deemed by the state to be the father of her children in his absence from court, or who is determined to be the father of her children through the affidavit and DNA testing procedures. Because these are administrative procedures, the procedural due process rights of the custodial mother and the putative father are largely left unprotected (Smith Reference Smith2007). Citing her third and tenth capabilities, “Bodily Integrity” and “Control Over One's Environment,” Nussbaum would argue that the sexual conduct affidavit requirement violates the adults' right to privacy (2006a 76, 77–78).

In some cases, mandatory DNA testing can be defended in liberal democratic terms. If the police have reasonable grounds for suspecting that an individual has assaulted another person and for believing that a DNA match would constitute important evidence to that effect, it would be entirely reasonable for the court to issue a warrant obliging the suspect to undergo a DNA test. By the same token, a criminal suspect who is innocent has a liberty interest in submitting to a DNA test insofar as the court will consider exculpatory evidence. The significant interest of the community in solving crimes like assault and murder, and the interests of wrongly accused suspects, are both served by properly issued DNA warrants.

It is not at all clear, however, that we can justify the subjection of children to compulsory DNA testing in paternafare cases. What if we granted, for the sake of argument, that our interests in tracking down scofflaw biological fathers are so compelling that the state would be justified if it subjected any man who faces a reasonable allegation of paternity, in connection to a TANF case, to a compulsory DNA test. We might reason that the adults who wished to remain free from paternafare-related DNA testing could choose to behave in such a responsible manner that they would never find themselves in this situation. For example, men could easily avoid the tests if they always used condoms with great care, obtained vasectomies, refrained from reproductive heterosexual practices altogether, and/or readily provided ample financial support to each and every one of their children.Footnote ¹² The children who are named in the paternity disputes, by contrast, never have an opportunity to avoid the DNA tests by adopting a prudent course of action; they are subjected to the DNA test because of the circumstances of their birth. Even if we agreed that the government's imposition of a mandatory DNA test upon the single mothers applying for poverty assistance, and upon the men who face plausible paternity allegations relating to their cases, constitutes reasonable interventions—given the community's substantial interests in minimizing welfare costs and the adults' ample opportunity for avoiding this subjection by engaging in prudent behavior—we could not justify the testing of the children in the same manner. A liberal democratic theory of justice would not hold children responsible for the conditions and behavior of their parents.Footnote ¹³ The paternafare rules requiring children to submit to DNA testing seriously violate their right to bodily integrity. The TANF household might enjoy an improved standard of living as a result of the paternafare policy if the payer happens to possess an adequate income-earning capacity and if he decides to comply with the court order. This gain, however, comes at an unacceptable cost in cases involving paternity disputes, namely, the violation of the adults' right to privacy and of the children's right to bodily integrity.

Paternafare can also entail impermissible trade-offs insofar as it places the low-income mothers seeking to obtain poverty assistance in conditions that are hostile to their autonomous pursuit of intimate relationships. Under Nussbaum's “Emotions” category, the individual has a right to form intimate attachments, while the “Affiliations” category includes the right to live with and toward others (2006a, 76–77). The ethnographic literature on low-income families suggests that in many cases, the mother on welfare is actually maintaining an informal relationship with the absent father that is mutually satisfying. Perhaps he visits her home from time to time, dropping off gifts of food, cash, or diapers. Perhaps he takes the children to the park every weekend, or walks them home from school. When the absent father is helping the custodial mother to care for their children, she tends to value his contribution a great deal (Seccombe Reference Seccombe1999, 143). The social science literature also suggests, however, that the cooperative relationships that already exist between the custodial mothers and the absent fathers are often disrupted by the initiation of the paternafare proceedings. Some men continue to visit the family but adopt a more adversarial posture toward the custodial mother and seek more control over the child's upbringing (Seltzer, McLanahan, and Hanson Reference Seltzer, McLanahan, Hanson and Garfinkel1998, 180–82). Others flee in an effort to escape detection and cut themselves off from the family altogether (Hays Reference Hays2003, 81). In these instances, the paternafare system is interfering with the TANF recipient's right to pursue her intimate relationships according to her own values and desires.

The paternafare requirement also violates Nussbaum's nonfungibility principle where the low-income mother is fleeing from domestic violence. According to a review of domestic violence research, between 20% and 30% of women on welfare reported domestic violence in a current relationship, and about half reported at least one incident of domestic violence over their lifetimes (Tolman and Raphael Reference Tolman and Raphael2000). As we have already seen, many of the absent fathers bitterly resent being saddled with child support obligations by the paternafare system and blame the custodial mothers of their children for their predicament. Although most of the states have voluntarily adopted a set of domestic violence exemptions within their TANF programs, the take-up rate is actually quite low, and the exemptions themselves are grossly inadequate (NLCHP 2009; Smith Reference Smith2007, 130–36). It is of course true that some of the women in the TANF program who are fleeing domestic violence still want to pursue the absent father for child support (Tolman and Raphael Reference Tolman and Raphael2000, 675, 677). For the others, however, the paternafare obligations mean that they can obtain poverty assistance only if they agree to live in fear of retaliation by the payer that could rise to the level of serious psychological abuse, sexual assault, and physical attacks. The domestic violence survivors in the TANF program cannot be held morally responsible for their attackers' conduct, and yet the state exposes them, through the paternafare system, to a fearful and sometimes violent condition under coercive economic circumstances. The conditions of the low-income mothers fleeing domestic violence who seek TANF assistance but are required to comply with the paternafare rule fall well below the threshold established by the capabilities included within Nussbaum's third category, “Bodily Integrity.” The state's exposure of these women to the risk of harm in return for their TANF benefits constitutes yet another impermissible trade-off.

In addition, paternafare is discriminatory and therefore fails the fourth prong of the undue burden test. A state that treated all custodial parents as dignified beings would not shuttle low-income mothers alone into a separate tailor-made poverty program and subject them to unique invasions of their right to autonomy and intimate self-determination. Paternafare, however, places a unique burden upon the TANF; no other applicant for a governmental benefit or service is required to submit to the paternafare rule as a condition of eligibility. A single mother may voluntarily seek the assistance of the courts to pursue her absent partner for child support under her state's family law, but unless she enters the TANF program, the federal and state governments do not put direct pressure upon her to do so. The welfare reformers may argue that by subjecting the mother on welfare to the paternafare rules, they are merely pressing her to realize her rights to paternal assistance that are already provided for her under her state's family law. However, Nussbaum would identify paternafare in this regard as a form of coerced self-help; given its paternalistic structure, she would argue that it cannot be morally defended.

Some paternafare supporters would reject the argument that paternafare constitutes an equal protection violation; they would invoke reports alleging that poverty is caused by promiscuous and extramarital conduct, and they would argue that the state has a compelling governmental interest in coercing the poor, and especially the African-American poor, to adopt hetero-patriarchal and marital family values.Footnote ¹⁴ From Nussbaum's perspective, however, this defense against an equal protection challenge would not be valid. She would concur with the Supreme Court: “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect” (Palmore v. Sidoti, 466 U.S. 429 [1984] at 433). She would further argue that the state must adopt a neutral position with respect to comprehensive moral doctrines, including family values. A just society would strictly limit the degree of governmental paternalism (Nussbaum Reference Nussbaum2000, 90, 92–93), and it would seek to maximize the individual's liberty to engage in diverse and even novel life experiments as much as possible (pp. 86–96).

The paternafare law, therefore, fails all four prongs of the capabilities-oriented undue burden test. While a few low-income families are enjoying increased incomes under the system, paternafare treats the mother on welfare as an instrument, rather than an end; prioritizes the good of the family over the rights of the individual; forces family members to give up fundamental rights in order to gain access to poverty benefits; and treats low-income single mothers in a discriminatory fashion. These violations cannot be cured by superficial changes to implementation practices on the ground; they are integral to the very structure of federal and state welfare law.Footnote ¹⁵

MEANS-TESTED PROGRAMS AND STIGMA

What about the means test, which I put aside in order to examine paternafare? Is it morally permissible from Nussbaum's perspective? Because her capabilities theory has a minimalist approach to income distribution, it may appear at first glance that Nussbaum would have no objections to the TANF means test. Taken in isolation, her distributive aim is rather modest. She seeks to ensure that the worst-off have the capacity to lead a life worthy of human dignity, and she believes that the state can achieve this objective by recognizing and fulfilling their right to a social minimum.

In the United States, however, policymakers have deliberately associated means-tested poverty programs with the most marginalized sectors of the population. New Deal policymakers intentionally moved the respected widows of white male wage earners out of the means-tested Assistance to Dependent Children program (ADC, which later become AFDC and then TANF) into the universal Social Security program in order to bolster the latter's reputation (Gordon Reference Gordon1994, 282–84). Racial politics contributed to policymakers' decision to exclude blacks from the non-means-tested universal entitlement programs during the New Deal era and to the failure of Lyndon Johnson's War on Poverty (Quadagno Reference Quadagno1994). Social scientists have documented the speeches made by President Ronald Reagan and numerous policymakers in Congress in which they explicitly denigrated low-income single mothers as lazy and sexually irresponsible “welfare queens.”Footnote ¹⁶ Because this official stigmatizing discourse mobilizes barely concealed popular investments in racial stereotyping and misogyny, it has been readily adopted by the media and the voting public.Footnote ¹⁷

Nussbaum emphatically argues that when the law deploys humiliation, stigma, and shame to achieve punitive effects, it cannot be morally defended.Footnote ¹⁸ In the course of drawing up and reshaping our poverty assistance laws, U.S. policymakers have consistently separated the “deserving” from the “undeserving.” They have ushered the former into well-funded universal programs while shuttling the latter into stingy means-tested programs, and they have treated the recipients of universal benefits with great respect while denigrating those who must rely upon means-tested aid. The preservation of a means-tested program for the low-income single mother virtually guarantees her exposure to more officially sanctioned humiliation.

One way to secure these women's right to poverty assistance without violating Nussbaum's standards would be to create a universal caregiver's entitlement program that would provide generous benefits to caregivers from all walks of life. By treating low-income single mothers as the equals of middle-class parents and caregivers for persons with disabilities, the universal caregivers' entitlement program would contribute to the undermining of the welfare-queen legacy. It would create the sense that the state actually does respect the low-income mother as an equally valued member of society, and it would enhance the political clout of low-income single mothers by grouping them together with much more powerful stakeholder allies.

There are, however, consequences that follow from the fact that we would have to persuade Nussbaum to endorse a universal caregivers entitlement on the grounds that the existing welfare law has historically perpetuated humiliation and degradation, rather than on the basis of a principle of justice that would require us to reduce inequality or prioritize the needs of the worst-off. Nussbaum would permit the universal caregivers entitlement under any conditions, but she would only consider it a moral requirement in narrowly defined historical circumstances in which the means-tested alternative was closely linked to the stigmatization of the recipients. As such, she would probably build in a “sunset” limitation. She would argue that this extraordinary deviation from her distributive minimalism would be morally required only for a temporary period. From her perspective, it would be reasonable to predict that the universal caregivers entitlement program would eventually provide a satisfactory “cure” for the stigmatizing dimension of the AFDC/TANF legacy. Low-income single mothers would enjoy increased income and enhanced status as a result of the universal caregivers entitlement; Nussbaum would argue that at some point, they would have received enough compensation for their past subjection to violative governmental discrimination. Even if policymakers continued to cling stubbornly to their welfare-queen stereotypes, low-income single mothers would be much better positioned to defend their interests and to pursue further gains in the political arena, thanks to their improved economic and symbolic status. After a sufficient compensatory period had elapsed, then, the capabilities-oriented theory of justice would allow the termination of the universal caregivers entitlement, and permit the state to replace it with a threshold right to a minimum income—that is, a new means-tested program.Footnote ¹⁹

Nussbaum would also want to foreclose any abuse of this reform precedent. We should not create a situation in which virtually any beneficiary of a distributive program would be able to come forward, claim that she felt stigmatized by receiving assistance, and successfully press for the replacement of the program with a universal entitlement. A plaintiff would have to show that she belonged to a class that had been intentionally and systematically degraded and excluded by state actors and that had suffered from resource deficits as a result of exclusion, making it difficult for the class to advance its interests in the political process; that the program was designed to serve the needs of this specific class alone; that the program's design was conceived as a result of a significant degree of animus on the part of lawmakers toward the class, instead of a sincere governmental interest in providing remedial aid to the class; and that the legislative bodies that subsequently reformed the program sustained that animus over a significant period of time.Footnote ²⁰ In this sense, a person of color who objected to racial affirmative action programs would not be able to mobilize our welfare policy precedent to bolster allegations that affirmative action inherently stigmatizes its beneficiaries and therefore should be considered impermissible.Footnote ²¹

Under the liberal democratic terms furnished by Nussbaum's capabilities theory, the paternafare requirement currently in effect in U.S. poverty law constitutes an impermissible undue burden. It could be argued that the radical egalitarian feminists who have attacked paternafare, such as Fineman (Reference Fineman1995), Mink (Reference Mink1998), and Smith (Reference Smith2007), have missed an opportunity to speak directly to the liberal feminists who defend paternafare and welfare reform, in the sense that many of our criticisms are framed in terms that are not wholly compatible with the liberal feminists' normative commitments. However, I would argue that even if we considered welfare reform from the moral perspective of a relatively nondemanding liberal democratic theory of justice—one that entails a minimalist intervention in the market and, for all its egalitarian attention to the dignity of every individual, merely endorses threshold entitlements to primary goods such as income and housing—it still fails to meet liberal democratic moral standards. Welfare reform has stripped the destitute individual of the enforceable right to poverty assistance. Even further, if we entered a hypothetical world in which low-income single mothers actually did enjoy a right to subsistence, Nussbaum's capabilities theory would find that the state compromises that right to an unacceptable degree when it requires them, as a condition of eligibility for their benefits, to name the marital or biological fathers of their children and to assist the state in pursuing them for child support.

Welfare reform and paternafare cannot be defended in liberal democratic terms, as specified by the capabilities approach, because they do not adequately respect, protect, and promote the individual's rights. With its acceptance of threshold entitlements to income and housing, and its relatively permissive approach to inequality, the capabilities approach is much less demanding than Rawls's version of liberal egalitarianism.Footnote ²² Since welfare reform and paternafare fail to meet the standards of the capabilities approach, even though the latter is relatively permissive with respect to inequality, it is likely that these policies will also fail to meet the more exacting standards of the liberal egalitarians. This analysis, then, strongly suggests that when specific defenders of welfare reform and paternafare ideologically position themselves within the liberal democratic tradition, or, more specifically, within the liberal feminist paradigm, either they are being insincere or they are failing to understand and to respect the very meaning of the moral terms that they are invoking.

In addition, the liberal democratic assessment of welfare reform can shed new light on the minimalist distributive element that is embedded within the capabilities approach. A capabilities-oriented investigation of the permissibility of paternafare and welfare reform would be deeply concerned about the fact that policymakers have expressed animus toward welfare recipients time and time again when they passed the major AFDC and TANF laws. Paradoxically, even though Nussbaum typically allows the state to stop short at establishing threshold entitlements to income and housing, she would, in all likelihood, make at least a temporary exception to her distributive minimalism in this case. With Fineman and Mink, I have argued that we ought to scrap TANF and replace it with a well-funded universal caregiver's entitlement.Footnote ²³ Nussbaum would reject many of our normative premises, but because of the empirical facts pertaining to the welfare policymaking process in the United States and because of her commitment to the right of low-income individuals to a basic social minimum, including the right to be treated “as a dignified being whose worth is equal to that of others” (2006a, 77), there is a good chance that she would be favorably disposed toward our specific policy recommendation.