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.
How should such gender differences between men and women (mothersand fathers, primary caretakers and primary earners) be treated in the law?
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.
In parallel with such exclusionscame elevated protection and concern for women’s welfare.
“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
. 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).
Gender Wars: Selfless Women in the Republic of Choice
, 66 N.Y.U. L. R
. 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.
, U.S. D
2003, tbl. 4 (2004).
See also supra
note 3 andaccompanying text.
Mothers are undoubtedly increasingly in the work force.
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.
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.”).
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.
note 2, at 226
27 (arguing that the sameness/difference debate is reallyabout maternalists versus equal parenting advocates).
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
Muller v. Oregon, 208 U.S. 412 (1908). In
, 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.