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Article Excerpt
Gender equality in American jurisprudence is an important objective. The Supreme Court of the United States has tried to remedy gender disparity in education by affording women a quality military education, (1) and the United States Congress has funded protecting women from violence, (2) yet inequitable treatment of women persists. (3) Gender equality and religion have both been important to the law, as evident by the effective transformation of law by women of faith in the suffrage movement. (4) Christianity motivated these women and influenced the debate on the right of women to vote, an important factor in any election year. (5) The paramount question, therefore, is not whether Christianity influences gender equality, but to what extent. This article will highlight Christianity's rigorous impact on gender equality with the understanding that law is based on inherent principles and inalienable rights, and will thereby examine and offer a Christian perspective on gender equality.
The late Professor Harold Berman focused his scholarship on the law and Christianity because "Christianity has had such an important influence on the origin and development of our legal institutions." (6) Noting the significance of moral philosophy in law in an academy devoted to legal pragmatism, Professor Berman advances the need to consider "the weightier matters of the law" (7)--what is right and just--as well as the "the technical subject matter of legal practice that helps to maintain order in society." (8) But he also notes that Christians have been reluctant to integrate their faith with their study of the law.
With rare exceptions, American legal scholars of Christian faith have not, during the past century, attempted to explain law in terms of that faith. Indeed, in the vast majority of scholarly writings on the vast majority of legal subjects, and in almost all classroom teaching of those subjects, Christianity is not mentioned. Is this because most contemporary American legal scholars see no connection between law and Christianity? Or is it because Christianity has been a taboo subject in twentieth-century American legal education? (9)
Within the legal academy, law and gender are both considered social constructs. (10) Feminist theorists call direct opposition to treating gender as a social construct the "naturalist" error. (11) "Within critical legal perspectives, to commit the naturalist error is to assume the existence of certain inherent or natural principles, rather than socially constructed ones, on which law is, or should be, based." (12) Those inherent or natural principles, however, are customarily dismissed to the immense detriment of gender equality. A Christian perspective examines how this "higher law" (13) influences our legal system, including legal aspects relating to gender.
An examination of gender equality from a Christian, rather than a constructionist feminist, perspective reveals whether our positive law reflects Christian beliefs and values based on transcendent principles, or the notion of law as a social construct. This article considers the history and ideas presented by Christian scholars and their foundation in the revolutionary treatment of women by Jesus Christ.
Some may doubt that Christian scholarship has any merit, (14) as "[r]evivalism, fundamentalism, and evangelicalism have long been plagued by accusations of anti-intellectualism." (15) The fact that Christian women scholars are generally not included among meritorious Christian scholarship particularly reflects gender inequality in scholarship. "More recent historians largely have discredited this thesis [of Christians as anti-intellectual], but not in regard to women in American evangelicalism, who have been depicted as the bulwark of the church because of their activism and piety not because of their intellectual contributions." (16) And some may question whether Christianity and Christian women have had, or may have, any positive effect on gender equality. However, "the history of evangelical feminism reveals a surprising theological rigor among, for example, conservative Protestant women, that has not previously been recognized." (17)
This article will examine and offer a Christian perspective on gender equality. It will consider both secular and Christian influences on women's equality, dignity and value by comparing the fragmented feminist theory based in social construct against a moral philosophy embodied in a Christian perspective. Section I discusses the wider historical effect of Christianity on the law. Section II analyzes why gender inequality persists in light of feminist presuppositions of law as social construct. Then contrasting that approach to an evangelical perspective on equality, this section reveals how evangelical feminism has fragmented over different approaches to biblical authority. Section III then offers the application of Christianity to women's lives based in the person of Jesus Christ and His revolutionary treatment of women. It presents personal examples of women whose lives were transformed not by uncovering the social construction of gender roles, but by knowing Jesus Christ. It illuminates the impact those women have had on the law and women's lives as a result of their personal Christian transformation. This Section will show that Christianity and Christian women have rigorously advanced gender equality with surprising effectiveness.
Considering the ideology of gender as a social construct of normative law in contrast to law being based on transcendent principles, this article reveals that gender equality transcends civil law and can be accomplished by the transformative power of Christianity.
I. A BRIEF HISTORY OF CHRISTIANITY AND THE LAW
A Judeo-Christian perspective has a foundation of law rooted (or based) in the Ten Commandments--directives from a transcendent authority (18)--and Christianity holds that law is fulfilled in the person of Jesus Christ. (19) Christ brought freedom for humanity from sin, regardless of gender, status or national origin. (20) He offered true liberty, and women especially have appreciated this liberation. (21) "It is understandable why many Roman women were drawn to Christianity before their spouses were. The Jesus movement offered women a seat at the table and a place in the church." (22) As a result of such social effects, the early church experienced persecution because Christians were seen as subverting the social order. (23)
With the conversion of Roman emperor Constantine in 313 A.D., Christianity became the state religion for most of the Western world, which resulted in many changes to the law, including the privileged status of the male priesthood. (24) Such changes continued old patterns of male dominance and seemed to undermine and compromise the liberty Christ brought for women. (25)
Though these male-privileging patterns deepened throughout the early church and into the Middle Ages, (26) Christianity continued to effect major changes in the law and society, promoting women's liberty throughout the European Protestant Reformation. (27) These changes brought particular equity to women in marriage and sexuality, (28) but forms of patriarchy persisted in child custody and other areas of family law into the beginnings of the American colonies. (29) The male-centered culture of the time blinded many of the church's fathers to the equal human status of women. (30)
"The continuing bias against women well into the twentieth century shows what a countercultural move it was for Jesus and Paul to include women in their missions at the outset." (31) Christianity was indeed revolutionary in many sociocultural ways. These events have become important to the body of scholarship on the integration of law and religion. "Over the past thirty years, a new historical awareness not only of the importance of religion to Western history, but, more importantly, a new awareness of how religion has affected that history has gained currency." (32)
The Christian framework emphasizes the role of a single decisive voice through the idea that God as the ultimate Lawgiver is transcendent above the state, the law and culture. (33) For the Christian, the natural moral law is a judgment of reason absolutely dependent upon the divine intellect and the divine will. (34) The modern concept of freedom is derived from foundational Christian principle:
Christianity emphasizes the fact that we are moral agents. God has freely created us in His own image, and He has given us the power to take part in His sublime act of creation by being architects of our own lives. But God has also granted to other human beings the same freedom. This means that in general we should be free to live our lives without interference from others as long as we extend to others the same freedom. (35)
These principles of inalienable freedom gave a firm foundation to Enlightenment thought. (36) The Enlightenment conception of liberty compared to John Stuart Mill's influential doctrine of liberty, reveals a direct inheritance of Christian thought. (37)
Christian thought has influenced the development of American jurisprudence as well. As a significant part of the foundation of American law, Puritan theologians used the power of religious images to motivate early colonists to create a "city on a hill" to enlighten other nations with biblical values. (38) The ideal of liberty from religious values was included in the fundamental principles of the American republic, (39) and Christianity also shaped early American cultural values.
Surely, though, there is this truth in the consensus histories: In America's past, although other faiths existed alongside evangelicalism, it is the latter that wielded the dominant influence on American society, and pluralism was defined as the toleration of a wide diversity of religious faiths. Since America's earliest days, religion--particularly that historical strain called evangelicalism, which can be traced from the Puritans through revivalism to modern evangelicalism--has played an influential role in the expression and shaping of American cultural values. (40)
Christian religious awakenings (41) influenced American culture so pervasively that historians have opined that revivalism and evangelicalism were the established religion of America until the contemporary era. (42)
In thirty years of teaching Christian ethics at Yale Divinity School, H. Richard Niebuhr greatly influenced Christian leaders of the twentieth century and understood Christianity's significant impact on culture. Niebuhr has found that "[a] many-sided debate about the relations of Christianity and civilization is being carried on in our time." (43)
An analysis of feminist and Christian scholarship, including how each explores gender and gender equality, is a necessary background where religion, specifically Christianity, has so influenced gender law.
II. ANALYSIS OF THE GENDER EQUALITY DILEMMA
Feminism, feminist legal theory and critical legal studies have generally perceived law and gender as a social construct. (44) In one of the most comprehensive casebooks on the topic, GENDER AND LAW: THEORY, DOCTRINE AND COMMENTARY, Professor Katherine Bartlett sets out the various scholarship based on that approach.
Constructing gender, however, has birthed several problems, including fragmenting feminism by women's differences, (45) the law's objectification of women, (46) universalizing generalizations about women (47) and about essentialism. (48) Feminism's embrace of essentialism as the realities of women's lives has led to overgeneralizations and the problem of false universalism, (49) even a form of exclusion. (50) Professor Bartlett sets out a critique of these concerns, concluding, as her Chapter 7 title suggests, that feminists ought to practice non-essentialism, and resist various forms of essentialism. (51)
A concern for feminist critiques of law is the "naturalist" error. (52) Defining this again is important. "Within critical legal perspectives, to commit the naturalist error is to assume the existence of certain inherent or natural principles, rather than socially constructed ones, on which law is, or should be, based." (53) Gender law theorists admit that feminist gender theory is somewhat self-contradictory. (54) Gender law as a social construct presents the problem that the law reflects the power of those who make it. "Feminists question assertions of knowledge that owe their effectiveness to the power wielded by those making the assertions.... By urging the corrective of women's perspective, or even a feminist standpoint, feminists may jeopardize our challenge to simplifications, essentialism, and stereotypes." (55) Other feminist scholars criticize feminist legal theory as protecting only the dominant culture, rather than women of all races. (56) Indeed, Catherine MacKinnon has argued that the "subordination of women to men is socially institutionalized" when law is viewed as a social construct. (57) Viewing the law and gender as social constructs has allowed a male-dominated system to construct "women." (58) Nonetheless, feminists presume that gender theory, as all law, is a social construct. (59) That presumption has resulted in the disintegration of feminist gender theory, a "specter of infinite fragmentation," and the concern of whether the deconstruction of feminist theory can be restrained, or even inhibited. (60) Indeed, what is socially constructed can likewise be socially deconstructed, (61) and the results of deconstruction can be deconstructed ... an infinite loop. Scholars have accordingly viewed this social construct as a false relativism, and as a Christian gender theorist points out,
Liberal feminists are correct in asserting that women and men are of equal dignity. They also are correct in their claims that women often are unjustly excluded from aspects of the political, economic, and social life of the community by barriers constructed for no greater purpose than the personal comfort and advantage of particular men or a class of men. The error of contemporary liberal feminism lies not in these claims but in the attempt to achieve equality through a false relativism, and freedom through denial of human relationships and the mutual dependence of men and women. (62)
Teresa Stanton Collett offers a Christian response to liberal feminism that focuses on the feminist claim for equality grounded in individualism and independence, rather than the universalism...
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