Male workforce participation has steadily declined under the anti-discrimination regime. It is presently under 70 percent, a historic low. Many would like to believe that we can address these problems while preserving the anti-discrimination sexual constitution. But the problem of a lack of marriageable men and other breakdowns in the male–female dance are endemic to the anti-discrimination constitution. Fewer men and women are as lovable as they were in preceding generations. Americans are proud of our anti-discrimination efforts, and our civil rights regime seems here to stay. All is not well, however, as the statistics above remind us. Elements of the anti-discrimination regime need to be scaled back at the least. Conservatives have refused to think about how to do such a scaling back. That must change. 

For a long time, what Alexis de Tocqueville called the American “spirit of freedom” was balanced by settled norms that guided young men and women toward domestic life. These norms added up to a sexual constitution that rested on the foundational assumption that men and women had different and complementary roles. Tocqueville recognized that this constitution, which emphasized the virtues of restraint, service, and obedience in marriage, tempered America’s otherwise fissiparous individualism.

The old sexual constitution was not static—the male–female dance in America took different forms at different times—but it was partly patriarchal and partly democratic. Tocqueville observed that American marriages were “democratic” in the sense that they did not perpetuate the rigid hierarchies of the Old World, nor did they give unlimited power to fathers and husbands. Nevertheless, American husbands and wives did different kinds of work. The husband functioned as the public face of the family and was the titular head, while the wife was responsible for the domestic sphere and buttressed the husband in his endeavors in the workplace and public sphere. The patriarchal nature of this settlement, however, is evident in the simple facts that men, not women, were expected to propose marriage and head families and that wives took their husband’s surnames.

But for two generations we’ve been undergoing a far-reaching transformation of the male–female dance. The foundational premise of the old sexual constitution—that men and women have different and complementary roles—is widely repudiated. A great deal has been written about the cultural forces driving this transformation, from the colonizing of family relations by the market mentality to the sexual revolution. What remains largely unexamined, however, is the role of government power in the replacement of the soft patriarchy that formerly guided men and women toward stable, complementary roles. That power has been deployed on behalf of a sexual constitution designed to promote sexual interchangeability.

Put simply: Civil rights law and related court decisions have criminalized the old sexual constitution. The Gloria Steinems and Hugh Hefners did not simply convince mainstream American society to discard the time-honored patterns. Our society was transformed because feminist ideas became compulsory, backed up by the threat of legal punishment for those who continued to act as if men and women were different.

Understandably, few wish to make such a blunt observation. Americans glorify civil rights laws and cheer the country’s battle for racial justice. But the Civil Rights Act of 1964 was not just about race. It also prohibited discrimination on the basis of sex. It thereby established the main mechanism for the public deconstruction of sex roles within the family. Since 1964, civil rights laws, infused with anti-discrimination ideas and propounded by interest groups and intellectuals, have reshaped sexual relations in America. Today’s basic assumptions about sex, sexual relations, gender, and family life are not the result of public persuasion or the triumph of feminism in the “marketplace of ideas.” They are the creatures of what Jennifer Roback Morse calls the sexual state, products of civil rights laws set in place decades ago.

Anti-discrimination laws are not the sole cause of the reshaping of sexual relations, of course. Already in the nineteenth century, public schooling had transferred a main function of domestic life, the education of children, to the state. Divorce by mutual consent had become common before the sexual revolution of the 1960s. Obscenity regulation was loosened. All of these reforms went with the grain of democratic individualism, which, as Tocqueville recognized, runs against the habits and virtues necessary for family life.

Civil society developed institutions that presumed the male–female difference. Men-only clubs catered to businessmen, while female organizations such as the League of Women Voters drew on the philanthropic ambitions of well-to-do women. There were Boy Scouts and Girl Scouts. Boys played sports. The sexes often mixed, but few doubted that boys required different outlets and activities than did girls, partly because married men and married women fulfilled different social needs and patterns.

A restrictive legal infrastructure sometimes supported the old sexual constitution. In some states, laws prohibited women from entering certain professions. (Illinois common law from the nineteenth century prevented women from earning licenses to practice law in state courts, a prohibition the Supreme Court blessed in Bradwell v. Illinois [1873].) This was not a “barefoot and pregnant” sexual constitution, as many feminist critics claim, nor did it rest on any notion that women could not do such jobs. Just over half of four-year colleges and universities enrolled women in 1900, a number that jumped to nearly two-thirds by the end of World War I. But society tilted toward educating men for leadership, in order to prepare them for public leadership and their roles in family life. Many Ivy League schools did not admit women until the 1960s or 1970s. Medical schools and law schools trailed undergraduate institutions in going co-ed.

The old sexual constitution is now illegal and stigmatized in nearly all its aspects. It has been replaced by an anti-discrimination sexual constitution.

The anti-discrimination sexual constitution rejects the central assumptions of its predecessor: the ancient convictions that men and women are different, that this difference justifies distinct sex roles for the sake of orderly marriage, and that society should support each sex in best fulfilling those roles. In its place, we are urged to organize society around the premise that “women, first and foremost, are human beings” who “must have the chance to develop their fullest human potential” and come into “full participation in the mainstream of American society,” as the 1966 National Organization for Women’s Statement of Purpose reads. This premise propounds a sexless, egalitarian understanding of “human dignity.” Men and women are not different in meaningful ways, and any social pattern that presumes difference amounts to wrongful discrimination. Guided by this assumption, the anti-discrimination sexual constitution seeks to destroy social support for different sex roles in society and the family. All institutions must be rebuilt on the basis of a feminist equality.

The first ambition of the anti-discrimination sexual constitution was to encourage women to enter the workforce through the promotion of equal pay, affirmative action for women, public support for day care expenses, and reform of workplace mores.

The Equal Pay Act of 1963, which prohibited employers from supporting the traditional family with higher pay and easier advancement for male heads of households, marked the beginning of this effort. More would remain “to be done to achieve full equality of economic opportunity” for women, said President John F. Kennedy after signing the bill into law. The next step was taken in the 1964 Civil Rights Act. Title VII of that act prohibits sex discrimination in hiring and promotion, and it created the Equal Employment Opportunity Commission (EEOC) for enforcement. In 1972, Congress extended the protections of Title VII to government employers and to businesses with fifteen employees (previously the limit was twenty-five).

Congress later added tax incentives for working mothers. President Richard Nixon vetoed the creation of federally funded public childcare centers in 1971. He worried that they would create “communal approaches to child rearing over against the family-centered approach.” Instead, Nixon endorsed programs in which middle- and upper-class families received tax deductions for day care expenses. (In time, poor families would receive government programs for childcare, such as Head Start.) Upper-middle-class feminists wanted public day care; they got public subsidies for private day care.

Aggressive affirmative action and set-aside programs aimed to increase female participation in the economy. Goals that at least 5 or 10 percent of government contractors be minority- or women-owned businesses became common. Several agencies exist within federal departments to promote such contracting. Public-sector affirmative action programs for women were blessed in Johnson v. Transportation Agency, Santa Clara County (1987), in which the Court ruled that being female could be used as a plus factor in determining promotions. Such programs operate in the private sector as well, where the specter of lawsuits encourages employers to achieve numerical goals that demonstrate the absence of discrimination.

Family-friendly employment practices now run afoul of civil rights law as defined by Phillips v. Martin Marietta Corp. (1971). The Martin Marietta Corporation would not hire mothers with young children, but it would hire similarly situated men. Ida Phillips, a mother of seven, wanted a job there, was denied, and sued under Title VII. The district court judge defended Martin Marietta’s right to discriminate on the grounds that “the responsibilities of men and women with small children are not the same, and employers are entitled to recognize those different responsibilities in establishing hiring policies.” The Supreme Court, however, reversed the decision. In effect, the Court held that hiring practices must not reinforce social norms that establish male and female responsibilities in family life.

The Phillips case points to the second ambition of the anti-discrimination sexual constitution: the legal effort to eradicate stereotypes. Under Phillips, private companies that acted as if men and women had different responsibilities within the family were said to operate on the basis of benighted stereotypes. Reed v. Reed (1971) and Frontiero v. Richardson (1973) applied the anti-discrimination principle to end public support for sex roles within the family. Reed concerned a dispute between a separated couple over who would administer the estate of their deceased son. In its decision, the Court held that laws based on the assumption that husbands and wives have different roles within the family employed “inaccurate stereotypes of the capacities and sensibilities of women.” Frontiero concerned benefits for spouses of military officers, whereby civilian males married to deployed women received fewer benefits than civilian wives with deployed husbands; the Court broadly ruled illegal any effort to reinforce sex roles through government benefits. Laws giving women greater benefits reflected a “romantic paternalism” that put, as the Court writes, “women, not on a pedestal, but in a cage.”

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