'Femaleness' and U.S. Family Law

Helen Alvare
and by E. Christian Brugger
© 2009 Culture of Life Foundation
Reproduced with Permission
Culture of Life Foundation

The Church has identified herself as an "expert in humanity"1. But who has the temerity to claim to be an expert in the female half of humanity? The complete identity of the female - call it the nature of 'femaleness' - is hidden in the complex body-soul unity which constitutes the human person. And so an understanding of the female body is one key to unlock this complex reality. But an understanding of the body is not enough to understand the person. Although human persons are always bodily and human bodies always personal, persons are not reducible to their bodies. They are their bodies, but they are more than their bodies, because the animating principle that makes their bodies to be living bodies is a non-material soul. But is there such thing as a properly "female soul"? Can spirit per se be engendered? These are weighty questions.

Modern popes, especially John Paul II, have explored women's identity and reflected upon their roles in the world (see, for example, the great Apostolic Letter of John Paul II, Mulieris Dignitatem (1988)2 or his wonderful Letter to Women (1995)3, or Joseph Ratzinger's (Benedict XVI) On the Collaboration of Men and Women in the Church and in the World (2004))4. And yet even these texts say relatively little about the nature of femaleness. We might recall John Paul II's reply to (former Vatican Ambassador) Professor Mary Ann Glendon when she expressed enthusiasm for hearing more from him regarding the "new feminism." He smilingly replied that this was her job! This would account for the Vatican's instituting within recent years a women's office within its Pontifical Council for the Laity, and its gathering of female scholars and leaders at conferences in Rome to explore topics of particular interest to women.

The idea that there may be some enduring and normative reality called a female nature is abhorrent to many scholars. The philosophical concept of "nature" refers to a defining set of essential qualities and capacities expressive of all members of some category. Feminist scholars in particular have a morbid fear that any appeal to a "female nature" necessarily will hide within it androcentric (male-favoring) and misogynist (anti-woman) assumptions; women will invariably be under or misdefined resulting in culturally-sanctioned social roles that restrict their authentic possibilities for fulfillment.

We do not deny the dangers of waxing metaphysical about females (or, for that matter, males). And we agree that the history of philosophical and social reflection on women has included some bogus and harmful definitions (e.g., Aristotle's idea the females are misshapen males). But the alternative is to rest easy with the assumption that there are no essential differences between men and women, that all apparent differences are merely socially constructed. This leads to the equally dangerous conclusion that the path of gender-blindness is the only sure way to guarantee justice in social dealings.

This has become a dominant assumption in family law, an area of law that goes far beyond the subject of divorce, to influence every matter relating to persons who are related by blood, marriage, adoption, and increasingly, by romantic/intimate affiliation. As everyone knows, women alone become pregnant and undergo abortions; they rear children alone far more often than men; and they initiate the majority of divorces. They also make different choices about employment, often adopting a different balance or interaction between their jobs and their family responsibilities.

Despite these differences, U.S. family law operates on the assumption of "gender neutrality." Gender neutrality works out at a practical level in many instances: both sexes are offered identical legal terms, but remain free to determine how to interact with them. Women more often than men, interact with gender-neutral laws by choosing to spend a greater amount of time and other resources caring for children. Thus the Family and Medical Leave Act offers post-childbirth leave on sex-neutral terms, but women take advantage of it much more often than men5. Child support laws refer simply to "custodial" and "non-custodial" parents, but women far more often assume custody and receive child support.

We think the phenomenon of sex-neutrality in the law begs a consequential question, a question that by being begged threatens serious social harm: Is there any essential difference between men and women? If there is, and if the law persists in forcing the resolution of problems in family law into the Procrustean Bed of gender neutrality, then justice will at times be compromised. Justice requires rendering to others what is due to them. If men and women, despite their common humanity, have irreducibly distinct dimensions to their persons and personalities - unique capacities, unique gifts - then viewing all issues in the law through a monolithic unisex lens will inevitably result in the failure to render what is due to particular persons. Such laws might be responsible for disadvantaging or perhaps just shortchanging women, men, children, and society.

Over the past 30 years, two great popes have proposed various "gifts" as well as "weaknesses" particular to women, the gifts being endowed by God, the weaknesses stemming from original sin. They have been exceedingly careful to assert the common humanity, dignity, equality, and even similarity of the two sexes, while indicating at the same time that there are differences. Moreover, both have repeatedly insisted that such differences are intrinsically oriented to the fruitful collaboration and relational communion between the sexes (On the Collaboration of Men and Woman, para. 6).

Given the attention lavished by both popes on subjects such as the feminine "genius," human complementarity and the collaboration between men and women, and given the importance of family law in respecting critical aspects of the welfare of women, men and children, it is worth asking how these two bodies of thought (i.e., papal and legal thinking on women) interact, despite the pitfalls inherent in such an undertaking. Drawing on some of the papal ideas, we propose for consideration two categories as reliably descriptive of women. Please don't misread us: we do not mean that these characteristics are absent from men, or that they are always expressed to a lesser degree in men than in women. At least one of us thinks that these expressions are principally grounded in the complex neuro-endocrinal composition of the human body. And every human body, even the bodies of identical twins, is unique. But just as it's reasonable to make generalizations about the female body relative to the male body, keeping in mind that these are always generalizations (but not necessarily caricatures), we think it's equally reasonable to posit certain generalizations about the psycho-somatic proclivities and inhibitions of women relative to men.

1. The first category might be called a woman's expression of body consciousness. By this we mean generally a woman's awareness of and self-identification with the embodied dimension of persons, including, of course, herself. We've heard the expression, usually directed towards men, "he lives in his head," which implies that his conscious life is not well integrated with his wider concrete reality - 'his head is in the clouds'. We might extend the metaphor and say that women 'live more in their bodies', not in that that they are less inclined to think, but that they are more inclined to take into consideration the concrete data arising from their bodies (e.g., their emotions) and from the bodies of others (their 'body-language' and bodily needs) in their deliberating, assessing and judging. By living more in their bodies, women have keener natural propensities to understand the body as personal - that is, to see in the bodiliness of another, the person of the other. Pornography, a predominantly male vice, expresses the antithesis: the reduction of the body of another to a subpersonal object of erotic self-gratification. (How many users while staring at a centerfold ask themselves, "I wonder what her father's name is? Or what was her grade-point average in college? Or what's her favorite book?) A negative expression of this same body consciousness might be seen in the problem of female eating disorders.

John Paul II points out that women share uniquely in the creative work of God. The person is "entrusted to her" in a special way. Of course he is referring to women's capacity to bear children, her being the first to sense life, to nurture life with and within her own body, literally to be interdependent with the new life. The female capacity for this intimate type of body-identification with others is likely one evolutionary ground for this body consciousness.

We think it's likely that this body consciousness has empirically observable manifestations, such as women's greater proclivity to demur from nonmarital sexual encounters, and their disinclination relative to men to seek sexual gratification with men with whom they have no emotional connection. Women are also less likely than men to seek cohabitation and more likely to want to marry6. This all may relate back to their particular form of body-consciousness through which they understand more keenly, if only intuitively, the integral relationship between sexual giving and procreation.

2. A quality related to body consciousness is women's particular disposition towards personal relationships, called by John Paul II, their "capacity for the other." This is very likely what John Paul II meant by the term feminine "genius"7. Benedict XVI, when Cardinal Ratzinger, called women a "reminder" or "privileged sign" of the human person's essential identity as a gift for others (Collaboration, 13). Some aspects of this might be called nurturance, which includes a commitment to particular persons, often sacrificial in nature. Women don't simply take care of children in the womb, they also are more likely to spend time with them after birth than men generally. Note here James Q. Wilson's observation - in societies where parents rear children alone, 94% of such households are headed by females. The same observation could be made when looking upon the stream of mothers issuing from grade-school carpools, or the numbers of mothers leading their children's homeschooling8. There is also the phenomenon of women seeking more "service" occupations, and occupations which involve attention to the vulnerable and suffering (animal shelter workers, daycare workers, nurses), both of which often garner a lower salary. There is also women's greater tendency to seek employment which ensures that family obligations can be generously met.

Consistent with this, Benedict notes women's tendency to mature earlier than men, to possess a sense of the seriousness of life and to be sensitive to the concrete needs of persons (see, e.g. his discussion of the wedding at Cana, and how Mary's maternal mediation made possible the 'good wine'")9. He also notes how women seem to persevere in adversity, demonstrating an ability to keep life going in extreme circumstances and to preserve human dignity and the value of each and every human life.

Another aspect of this disposition might be women's way of "doing" relationality. Women seem less satisfied with merely task-oriented, professional, or superficial human connection. In this regard, Benedict has observed women's "intensity and naturalness" regarding "listening, welcoming, humility, faithfulness, praise and waiting" (On the Collaboration of Men and Women, 16).

Correlated to unique strengths in relationality are women's "unique weaknesses" in this area as arising from original sin. The intense dissatisfaction they feel toward their relationships can lead them to long for different ones. This may be manifested in the empirical data which shows that women are more likely to sever the marriage bond. Furthermore, they may wrongly tolerate harmful dominating relationships in return for relational exclusivity. In his Mulieris Dignitatem, John Paul II speaks about the woman "remaining closed within her own instincts" (para. 18).

Considering the gifts and weaknesses we've identified here, then, what cautions or words of advice might we offer in the domain of family law? Several come to mind.

First, U.S. sex education programs - which ought to be considered as firmly within the family law domain - regularly contradict women's tendencies regarding body consciousness and relationality. In other words, women's tendency to link sex and procreation and commitment are directly and regularly undermined with the message that only "uncontracepted sex" is procreative10. Their linking sex with ongoing relationship, even commitment, is undermined by the insistence that "successful" sex is all about mutual consent, pleasure, and avoiding the twin evils of babies and disease.

Obviously, our nation's abortion laws also work directly against nearly every aspect of female identity noted above. This was fleetingly recognized in the 2008 U.S. Supreme Court's partial-birth abortion decision Gonzales v. Carhart where the majority referred to "bond of love" between mothers and their unborn children. It remains to be seen if this will influence abortion laws further, but so far it has merely prevented killing partially born infants; all unborn children are still at risk of the exercise of what our Supreme Court has called a woman's "right" to terminate the life of the child she knows - in body and spirit - is her own son or daughter. The post-abortion damage to women's bodies and minds, not to mention future relationships, is related to the way abortion strikes at all of their instincts to love and care for this particular, embodied, vulnerable person.

The way U.S. law fails to regulate in any meaningful way the practice of assisted reproductive technologies (ART) is also particularly threatening to women. The processes involved in technologically "making a baby" inevitably looks at woman's bodies as a "machine" and a "product-source." Whereas the protected framework for procreation traditionally has been personal and triadic: viz., the conjugal love of spouses brining forth the person of the child, the way the ART industry operates -- with payment to women for the 'products,' for risk-taking, and for reproductive "labors" (incubation, gestation, delivery) - depersonalizes the child to the status of a product. ART laws merely regulate the interests of adults. The vulnerability of children, the duties of parents toward their offspring, and the responsibilities of the strong for the weak are ignored. Often, ART children are conceived using donated eggs, and thus separated from their natural mothers. Surrogate motherhood contracts intend the same separation. Payments to egg donors are allowed in every state (though some require a contract to indicate that payment is for services, not body parts). Surrogacy contracts are banned in many states, but allowed in some, subject only to limited "safeguards" (begging the question of the impossibility of "safeguarding" a mother and child from the effects of confusing the maternal biological, gestational, and social relationships). By turning her body into an instrument for production and her child into the product she makes, ART may interfere with a woman's natural propensity to understand her own and her child's bodies as personal.

Divorce laws, particularly current laws permitting unilateral divorce without proof of "fault," seem to play into women's weakness for finding a relationship insufficiently satisfying. It is well known by now that women file approximately two-thirds of all divorces, and that the majority of divorces do not follow high-conflict marriages. Proposals floated by an array of marriage-reform groups for slowing divorce down or mandating counseling, might help mitigate women's tendencies to rush to the judgment that a marriage subjectively-perceived to be emotionally unsatisfying is irremedial.

Federal and state "family leave" policies currently fail to help assure women the opportunity both to do justice at home and at work. This is a foolish oversight, given the impossibility of replacing at home the unique personal care mothers wish to provide, and given how crucial this care proves for children's well-being. Sociologist Brad Wilcox has also shown that when a woman feels she is not pursuing the work-home strategy she prefers (which often strikes a balance of putting home first), the risk of marriage dissolution also rises11.

Social welfare policies failing to give "credit" to women's domestic roles (e.g. social security does not accrue for childrearing), and to women's inclination to take lower paying service jobs, sends a message to women about the value to the community of these undertakings; it tells them the tasks are worthless. It will also likely skew women's choices away from the socially valuable work toward which they incline and toward work that may detract from the well-being of their family and society. As indicated above, it may also indirectly affect women's perception of marital satisfaction.

Child support, spousal support and property distribution regimes - all parts of state laws regarding family dissolution/divorce - in some cases give too little deference to women's desires to devote themselves to childrearing either via full-time mothering, or via part-time or flexible employment. Some state policies tend toward presuming that every able-bodied mother of children without disabilities ought to find employment after divorce. While many times women wish to work after divorce, or need to in light of family finances, it is also true that the law could be more generously disposed towards women's inclinations to tip the balance in favor of the children.

Finally, some states' passage of laws expanding the definition of marriage to include same sex unions is problematic both for women's and men's identities. Such a redefinition denies that either sex is entitled to "read" anything of significance into existing as male or female. This deprives the individual person as well as society at large of the possibility that the gifts or tendencies of either sex will be brought to bear as richly as they might.


1 See the opening line to the CDF Letter, On the Collaboration of Men and Women in the Church and in the World: "The Church, expert in humanity, has a perennial interest in whatever concerns men and women"; at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20040731_collaboration_en.html; see also Benedict XVI's most recent use of this moniker in July 2009 at.http://www.zenit.org/article-26438?l=english [Back]

2 http://www.vatican.va/holy_father/john_paul_ii/apost_letters/documents/hf_jp-ii_apl_15081988_mulieris-dignitatem_en.html [Back]

3 http://www.vatican.va/holy_father/john_paul_ii/letters/documents/hf_jp-ii_let_29061995_women_en.html [Back]

4 http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20040731_collaboration_en.html [Back]

5 Carol J. Williams, Law firms turning to a family-friendly culture to keep female attorneys.," Los Angeles Times, A1 Sept 27, 2008, available at 2008 WLNR 18424551. [Back]

6 Karen Benjamin Guzzo, How do marriage market conditions affect entrance into cohabitation vs. marriage? 35 Soc Sci. Research 332, 350 (2006). [Back]

7 In Mulieris Dignitatem, no. 30, JP II writes: "progress can also lead to a gradual loss of sensitivity for man, that is, for what is essentially human. In this sense, our time in particular awaits the manifestation of that "genius" which belongs to women, and which can ensure sensitivity for human beings in every circumstance: because they are human! - and because "the greatest of these is love" (cf. 1 Cor 13:13)." [Back]

8 See Paul T. Hill, Women's Work: Mothers sustain the home-schooling movement, Education Next, Sept 22, 2002 [Back]

9 See Benedict XVI In Angola, Zenit Org (March 22, 2009), Pope Highlights Women's Mission to Defend Humanity. [Back]

10 Jennifer Fulwiler: A Sexual Revolution: One woman's journey from pro-choice atheist to pro-life Catholic, America, July 7, 2008 [Back]

11 W. Bradford Wilcox & Jeffrey Dew, No One Best Way: Work-Family Strategies, the Gendered Division of Parenting, & the Contemporary Marriages of Mothers and Fathers, in Kathleen Kovner Kline and W. Bradford Wilcox, eds., Parenting and Gender, (Institute for American Values, forthcoming 2010). [Back]