Georgetown University Law Center
Cornelia Nina Pillard
Georgetown University Law Center
April 14, 2011
Michigan Journal of Gender & Law, Vol. 18, pp. 229-296, 2012 Georgetown Public Law Research Paper No. 11-38
Abstract:
The biggest challenge for sex equality in the 21st Century is to dismantle inequality between women and men’s family care responsibilities. American law has largely accomplished formal equality in parenting by doing away with explicit gender classifications, along with many of the assumptions that fostered them. In a dramatic change from the mid-20th Century, law relating to family, work, civic participation and their various intersections is now virtually all sex-neutral.
As the Supreme Court’s 2003 decision in Nevada Department of Social Services v. Hibbs demonstrates, both Congress and the Court have accepted the feminist critique of sex roles and stereotyping as engines of discrimination and inequality. But the resultant legal reforms address only formal inequality; the challenge of lived inequality remains. Changes in legal norms must be embraced throughout the culture before their promise will be made real.
The most influential and resistant obstacle to actualizing gender equality is the continuing cultural practice of romanticizing the mother as the best possible caretaker. As the Court has recognized, we cannot simply accept existing gendered family patterns as results of freely made individual choices. Persistently gendered family care becomes self-fulfilling, and solidifies the very inequalities — economic, political and social — that the law strives to dislodge. Given that mothers’ unequal burden in the home is a fulcrum of broader sex discrimination, it is particularly disturbing that one of the most persistent strains in contemporary culture is a celebration of mothers’ domesticity and their role as the default parent, and that women’s rights organizations are buying in.
The “new maternalism,” as we call it, is evident along the political spectrum and across popular culture, from Sarah Palin’s Mama Grizzlies to the internet advocacy group Moms Rising, and from movies, television and advertising to countless “mommy blogs.” This phenomenon amounts to a distinctive, post-feminist understanding of motherhood that studiously avoids engaging with the gendered division of parenting and refuses to make any demands on men. By appealing to mothers, and not fathers, new maternalism risks reinforcing mothers’ second shift and the countless inequalities that flow from it. The sophisticated policy advocates who participate in the promotion of new maternalism have made a strategic choice to tap a culturally potent, contemporary form of gender identity politics. But they jeopardize their own advocacy goals when parenting and care work are cast in exclusively female terms, as a new—but fundamentally retro and feminine — maternalism.
Our analysis of the culture of new maternalism and its legal consequences comes from a deep appreciation of the enormous value and satisfactions of parenting; new maternalism has such appeal precisely because it correctly embraces what is meaningful about family care. Its error, we contend, lies in the tacit exclusion of men, whether willing or reluctant, from engaged parenting’s benefits and responsibilities. We conclude that equality outside the home requires equality inside it, which is why we come out against the new maternalism.
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