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SELECTIVE RECOGNITION OF GENDER DIFFERENCE IN THE LAW: REVALUING THE CARETAKER ROLE

SELECTIVE RECOGNITION OF GENDER DIFFERENCE IN THE LAW: REVALUING THE CARETAKER ROLE

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Gender neutrality continues to dominate the legal arena. Recognition
of difference is deemed suspect based on the fear of reinforcing problematic
and hierarchal stereotypes, thereby undermining headway in women’s equality.
Moreover, the normative appreciation in our legal system for sameness
of treatment as a proxy for equality makes recognizing difference unpalatable.
Though essentially valid, these concerns have become overwrought,
and are used to justify avoiding the recognition of gender difference even
when such recognition is essential to alleviating hardships that women face.
Ignoring difference ignores those particular attributes of biological and gender
role difference that are valuable to society, such as caretaking.
Gender neutrality continues to dominate the legal arena. Recognition
of difference is deemed suspect based on the fear of reinforcing problematic
and hierarchal stereotypes, thereby undermining headway in women’s equality.
Moreover, the normative appreciation in our legal system for sameness
of treatment as a proxy for equality makes recognizing difference unpalatable.
Though essentially valid, these concerns have become overwrought,
and are used to justify avoiding the recognition of gender difference even
when such recognition is essential to alleviating hardships that women face.
Ignoring difference ignores those particular attributes of biological and gender
role difference that are valuable to society, such as caretaking.

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SELECTIVE RECOGNITION OF GENDER DIFFERENCEIN THE LAW: REVALUING THE CARETAKER ROLE
P
AMELA
L
AUFER
-U
KELES
*
T
ABLEOF
C
ONTENTS
 I.Introduction.............................................2 II.Gender Neutrality and the Plight of the Primary Caretaker.8 A.The Theory of Gender Neutrality.....................8 B.The Privatization of Marriage and Divorce............12C.Too Much Discretion
the Best Interest of the Child.181.Custody as a Best Interest Determination.........182.Custody as a Bargaining Device..................20 D.The Focus on Self-Reliance and the Disappearance of  Alimony.............................................23 III.Alternatives to Gender Neutrality: Difference, Dominance, Domesticity, and Selective Recognition....................24 A.Difference/Relational Feminism.......................25 B.Dominance Theory..................................27 C.Breaking Down Gender Difference....................29 D.Thee Ethic of Caretaking.............................32 IV.Recognizing Difference Selectively in a Value-Laden Manner: Revaluing the Caretaker Role....................36  A.Different Categories of Gender Difference.............40 B.Determining Whether to Recognize Difference.........42V.Valuing Caretaker Activities in Custody Disputes: ThePrimary Caretaker Presumption..........................4 A.Primary Caretaker Presumption......................47  B.The Approximation Standard.........................52VI.Valuing Caretaker Activities at Divorce: Caretaker Support Payments...............................................5VII.Conclusion..............................................65
*Assistant Professor of Law, University of Dayton School of Law. B.A., ColumbiaUniversity; J.D. Harvard Law School. I owe thanks to Judith Areen, Avi Bell, ElizabethBartholet, Maria Crist, Ariela Dubler, Harry Gerla, Cooley Howarth, Lisa Kloppenberg,Rick Perna, Richard Saphire and Merle Weiner for their insightful comments on previousdrafts of this article. Research for this article was funded by the University of DaytonSchool of Law. For their excellent research assistance, I thank Glen McMurry and Jen-nifer Williams. My appreciation extends also to my husband Meir for his generous edit-ing assistance and for his patience. This article is written in loving memory of aninspirational primary caretaker, Mindy Greenberg, may her memory be a blessing.
 
2Harvard Journal of Law & Gender[Vol. 31I.I
NTRODUCTION
Biology is not destiny.
1
But for the substantial majority of marriedcouples, caretaking is. Approximately 72 percent of marriages produce chil-dren.
2
In the typical family comprising a married couple and children, onespouse modifies her potential for income in the workplace in order to carefor those children, either partially or entirely, by leaving the workplace alto-gether.
3
In the vast majority of cases, that parent is the mother.
4
Despite
1
The fight against the labeling of “biology is destiny” is a major theme of liberalfeminist jurisprudence.
See
M
ARTHA
C
HAMALLAS
, I
NTRODUCTION TO
F
EMINIST
L
EGAL
T
HEORY
39
41 (1999).
2
Census 2000, analyzed by the Social Science Data Analysis Network, reports thatapproximately 28 percent of married couples did not have children. U.S. C
ENSUS
B
U-REAU
,
 House and Family Structure: Household Type 1990-2000
, C
ENSUS
(2000),
availa-ble at 
http://www.censusscope.org/us/chart_house.html (last visited Jan. 14, 2007). TheU.S. Bureau of Statistics issued a Report in November 2004 entitled “American Familiesand Living Arrangements” indicating that in 2003, 66 percent of married men from theages of 25
54 had children under the age of eighteen and 63 percent of married womenfrom the ages of 25
54 had children under the age of eighteen.
See
http:// www.census.gov/population/www/socdemo/hh-fam.html (last visited Jan. 11, 2007).Clearly a larger percentage of overall married persons have children as these percentagesdo not take into account married couples with children over eighteen.
See also
J
OAN
W
ILLIAMS
, U
NBENDING
G
ENDER
: W
HY
F
AMILY AND
W
ORK
C
ONFLICT AND
W
HAT TO
D
O
A
BOUT
I
T
2
10 (2002).
3
See
Donald R. Williams,
Women’s Part-Time Employment: A Gross Flows Analysis
,M
ONTHLY
L
ABOR
R
EV
. 36 (Apr. 1995) (most married mothers still work primarily part-time); D
APHNE
S
PAIN
& S
UZANNE
M. B
IANCHI
B
ALANCING
A
CT
: M
OTHERHOOD
, M
ARRIAGEAND
E
MPLOYMENT
A
MONG
A
MERICAN
W
OMEN
146
48 (1996) (indicating that only 28 per-cent of women with young children work full-time outside of the home, while an addi-tional 40 percent work from home and/or part-time); C
ATHARINE
M
AC
K
INNON
,
 Differenceand Dominance
,
in
F
EMINISM
U
NMODIFIED
: D
ISCOURSES IN
L
IFE AND
L
AW
37 (1987)(“Most jobs in fact require that the person, gender neutral, who is qualified for them willbe someone who is not the primary caretaker of a preschool child.”) (citing Phillips v.Martin-Mariette, 400 U.S. 542 (1971)); Joan Williams,
 It’s Snowing Down South: How to Help Mothers and Avoid Recycling the Sameness/Difference Debate,
102 C
OLUM
. L. R
EV
.812, 828
30 (2002) (“Today, two out of three mothers are employed less than forty hoursa week during the key years of career advancement
and eighty-five percent of womenbecome mothers.”);
see also
Robert Pear,
 Married and Single Parents Spending MoreTime with Children, Study Funds
, N.Y. T
IMES
, October 16, 2006, at A1 (documenting anincrease in time spent by both parents with children and a decrease in time spent doinghousework, but indicating that women still do twice as much housework and child work than men, as women average twenty-three hours of paid work per week, thirteen hours of child care and nineteen hours of house work, whereas men average thirty-seven hours of paid work per week). Jobs requiring extensive overtime exclude virtually all mothers
93 percent of mothers to be precise.
See
W
ILLIAMS
,
supra
note 2, at 2 (93 percent of mothers work forty-nine hours per week or less).
4
The November 2004 U.S. Bureau of Statistics Report,
supra
note 2, indicates thatapproximately 30 percent of mothers stay out of the workforce full-time to care for chil-dren, compared with approximately 5 percent of fathers; Kemba J. Dunham,
Stay at  Home Dads Fight Stigma
, W
ALL
S
T
. J., Aug. 26, 2003, at B1 (“According to the U.S.Census Bureau’s March 2002 Current Population Survey, among two-parent households,there were 189,000 with stay-at-home dads [compared with] 11 million children withstay-at-home moms . . . .”);
see also
A
RLIE
H
OCHSCHILD
& A
NNE
M
ACHUNG
, T
HE
S
ECOND
S
HIFT
: W
ORKING
P
ARENTS AND THE
R
EVOLUTION AT
H
OME
(1989) (documenting the phe-nomena of the second-shift wherein working mothers retain significant domestic labors:
 
2008]Selective Recognition of Gender Difference in the Law3recent reports that she is now in the workforce, the proverbial mother liveson and she continues to care for her children.
5
How should such gender differences between men and women (mothersand fathers, primary caretakers and primary earners) be treated in the law?
6
There are a number of possibilities: the law can ignore such differences, aimto be rid of difference, acknowledge and even support difference. The tradi-tional view in our legal system was that gender made all the difference.Gender was the basis for excluding women from voting rights, for work-place discrimination, and for denying women property rights, among manyother rights, privileges and responsibilities.
7
In parallel with such exclusionscame elevated protection and concern for women’s welfare.
8
The women’s
“The women [] interviewed seemed to be far more deeply torn between the demands of work and family than their husbands . . . . They felt the second shift was their issue andmost of their husbands agreed.”); Ira Mark Ellman,
 Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Martial Roles
, 34 F
AM
. L.Q. 1, 19
31 (2000)(the proportion of women who are the primary breadwinners in U.S. families has stayedconstant at about 5 percent from 1978
1998; the number of full-time non-working wivesdecreased from 32 percent to 20 percent; however, when a husband’s income is above$75,000 the vast majority of married mothers do not work full-time).
See
Joan Williams,
Gender Wars: Selfless Women in the Republic of Choice
, 66 N.Y.U. L. R
EV
. 1559, 2236(1991) (“The dominant family ecology has three basic elements: the gendered structureof wage labor, a gendered sense of the extent to which child care can be delegated, andgender pressures on men to structure their identities around work.”). In 2003, 39 percentof women with children under age six were not employed in the market at all, an increaseover 2002 figures.
See
B
UREAU OF
L
ABOR
S
TATISTICS
, U.S. D
EP
T OF
L
ABOR
, E
MPLOY-MENT
C
HARACTERISTICS OF
F
AMILIES IN
2003, tbl. 4 (2004).
See also supra
note 3 andaccompanying text.
5
Mothers are undoubtedly increasingly in the work force.
See
S
PAIN
& B
IANCHI
,
supra
note 3, at 152 (“In 1970, 44% of married women with young children workedduring the year and only 10% worked full-time, year round. By 1990, 68% of marriedwomen with young children worked outside the home and 28% worked full-time, yearround. By 1990, most married mothers of young children had some involvement in mar-ket work, although they typically were employed part-time.”). But the fact is thatmothers are not in the work force in the same manner as men: they usually work amodified schedule
part-time, flex-time, in the home, or they choose professions or jobsthat although full-time, allow them to be in the home more than a traditional “male” job.Furthermore, it should be noted that women who work outside the home have fewerchildren.
See
W
ILLIAMS
,
supra
note 2, at 13
39, 124 (“Prior chapters have contested theaccepted wisdom that it used to be ‘a man’s world’ but that ‘men and women are equalnow.’ A more accurate description is that our system has shifted from one where (mid-dle-class) men were breadwinners and (middle-class) women were housewives to onewhere men are ideal workers and their wives (or ex-wives) are workers marginalized bycaregiving.”).
6
This discussion is integrally related to the sameness/difference debate; however, itis not an analysis of whether men and women are the same or different
they are obvi-ously different. The question is how those differences should be treated in the law.
Cf.
W
ILLIAMS
,
supra
note 2, at 226
27 (arguing that the sameness/difference debate is reallyabout maternalists versus equal parenting advocates).
7
See
E
LEANOR
F
LEXNER
, C
ENTURY OF
S
TRUGGLE
142
55 (1959); Christine Littleton,
 Restructuring Sexual Equality
, 75 Cal. L. Rev. 1279, 1304
08 (1987); Catharine MacK-innon,
Feminism, Marxism Methods and the State: An Agenda for Theory
, 7 S
IGNS
515,516 (1982).
8
See
Muller v. Oregon, 208 U.S. 412 (1908). In
 Muller 
, the Court upheld maximumhour legislation for women similar to that rejected by Lochner v. New York, 198 U.S.345 (1908), because of the perceived frailty and need for protection inherent in women.

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