Douglas W. Kmiec
Chair & Professor of Constitutional Law
Pepperdine University
In a recent column for Forbes magazine, I sought to further a national conversation on whether, and how, businesses (including law firms, of course) meet (or ignore) the importance of accommodating work and family. The burden of this conversation still singularly falls upon working women, so I am especially anxious to hear their personal stories or concrete proposals. But part of the incentive for doing this is to candidly admit that this male at least (and I suspect I am not alone), has let this topic go unexplored far too long. So men, too, ought to take this as an invitation to seriously grasp the significance of seeking a culture that understands work is for family, not the other way round. The essay below is a longer version of what appeared in Forbes, and I am hopeful that it will generate a similar, extraordinary and enthusiastic set of responses on this blog for no longer giving a "silent shrug" to the life we actually want to lead.
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Watching my twin daughters recently graduate from high school and their older sister from law school provoked moments of achievement and pride, but also a fair amount of puzzlement – which, frankly, was not present when my sons marched across similar platforms a few years back.
Are the opportunities awaiting my daughters and the young women of America as they complete college and professional school as great as those available to young men? And if they aren’t, is it because the marketplace knows these highly intelligent – but female – graduates actually have more in mind then just getting a job – namely, raising a family? In over thirty years of law school teaching, this is a quandary posed repeatedly by female law graduates. The answer from many businesses or law firms has been a silent shrug.
The indifference may not long be sufficient. Whether or not Hillary Clinton crashes through the political glass ceiling, the plea to rethink the organization of society to better accommodate work and family seems more determined in the present generation. This is a cohort of young people described by Thomas Friedman of the "World is Flat" fame as "the Quiet Americans," who he said nevertheless seek to "venture into the world either to repair it or do business with it."
Evening out the female disadvantage in the culture has been the subject, of course, of varying, and often highly controverted, prescriptions. Justice Ginsburg, for example, opined just a few weeks ago that if women did not keep unrestricted access to abortion, they would be reduced to "second class citizens." The Supreme Court had previously justified the abortion right squarely on the need to facilitate women’s "social and economic life in the nation." This is an understandable sentiment coming from Justice Ginsburg, a brilliant jurist, who, when she graduated from Columbia in 1959 was spurned by Felix Frankfurter for a clerkship on the Court upon which she now sits and found the door closed to her at a dozen New York law firms. Yet, aside from its deeply troubling moral conundrums, abortion’s availability hardly seems up to its billing. It may unburden a certain number of women from an ill-timed pregnancy, but ultimately, it doesn’t really accommodate work and family, so much as snuff out one in favor of the other.
Other legal avenues seem likewise inadequate or confused. Take the revival of the unsuccessful Equal Rights Amendment of the 1970s. The key sentence is twenty-three words in length, reciting that "equality of rights under law shall not be denied or abridged by the United States or by any State on account of sex." The Amendment last time came within three states of the required three-fourths for ratification. Now renamed the Women’s Equality Amendment, the proposal has several hundred sponsors in the Democratic Congress, who want to send it back to the States for approval. But everything about this constitutional addendum is contested, from what it will now take to approve it to its meaning.
Some argue that the previous state approvals are still valid highlighting that it took 203 years to pass the 27th Amendment limiting congressional pay raises; others deny it, pointing out the ERA last time was made expressly subject to approval within a seven year period that was extended to ten, and it still failed. Many of the amendment’s current boosters want to start from scratch, but then, what does it mean. Phyllis Schlafly made a career of opposing the earlier measure, positing that it would put women in ground combat, abolish single-gender outfits like the girl scouts, and even take social security survivor advantages from widows. These same arguments are back, but like the legal debate about abortion, all of this yammering seems several formal leagues removed from the question of career and children that women remain uniquely called upon by our culture to confront.
While equal pay is mandated by several federal statutes, it hardly seems a reality when women still make less than 80 percent of a man’s wage for the same work. Laws are laws, but the marketplace finds its own way to identify what we’re willing to pay for – and at the moment, we are willing to ante up for full-time work, but not the value women – since Cain popped Abel with that rock – have been giving to families out of simple, uncompensated love.
The late John Paul II wrote: "the mentality which honors women more for their work outside the home than for their work within the family must be overcome." A very nice sentiment, of course, which captures the irreplaceable social value of the family – Cain notwithstanding – to reductions in violent crime, child poverty, and illiteracy. Of course, it’s another comment from a man, and it curiously leaves out why men, too, should not be honored more for their family activity.
It’s unclear to me how my daughters, or yours, are going to navigate these issues, but I know this, on their success, ours depends.