Feminism, Law, and Religion

Marie Failinger, Elizabeth Schiltz, Susan J. Stabile, Marie Failinger, Elizabeth Schiltz, Susan J. Stabile

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317135784
• Edition: 1
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

With contributions from some of the most prominent voices writing on gender, law and religion today, this book illuminates some of the conflicts at the intersection of feminism, theology and law. It examines a range of themes from the viewpoint of identifiable traditions such as Judaism, Christianity, Islam and Buddhism, from a theoretical and practical perspective. Among the themes discussed are the cross-over between religious and secular values and assumptions in the search for a just jurisprudence for women, the application of theological insights from religious traditions to legal issues at the core of feminist work, feminist legal readings of scriptural texts on women's rights and the place that religious law has assigned to women in ecclesiastic life. Feminists of faith face challenges from many sides: patriarchal remnants in their own tradition, dismissal of their faith commitments by secular feminists and balancing the conflicting loyalties of their lives. The book will be essential reading for legal and religious academics and students working in the area of gender and law or law and religion.

PART I
Feminist Legal Theory—Religious and Secular Encounters

Chapter 1
A Contemporary Catholic Theory of Complementarity

Elizabeth R. Schiltz

In his 1995 Encyclical Letter Evangelium Vitae, Pope John Paul II issued a challenge to women that captures the paradoxical perspective of many contemporary women who identify as both Catholics and as feminists:

In transforming culture so that it supports life, women occupy a place, in thought and action, which is unique and decisive. It depends on them to promote a “new feminism” which rejects the temptation of imitating models of “male domination,” in order to acknowledge and affirm the true genius of women in every aspect of the life of society, and overcome all discrimination, violence, and exploitation (Pope John Paul II 1995: 99).

The first sentence of this quote characterizes women as the custodians of a culture of life, precisely the sort of role for women one might expect to be proposed by a Catholic Pope. The second sentence, however, with its invocation of “male domination” and the need to overcome “discrimination, violence, and exploitation” against women would fit neatly in treatises by any number of contemporary secular feminists who would vigorously reject the role suggested in the preceding sentence—such as the radical Marxist feminist Catherine MacKinnon, or anti-pornography activist Dorchen Leidholdt.

This paradox is a familiar one to many contemporary Catholic women whose lived experiences have led them to identify as feminists, at least as defined by the Catholic philosopher Prudence Allen: “an organized way of thought and action that gives special attention to removing obstacles to the full development of women” (Allen 2004: 284). While such women may view themselves as feminists, however, the identification of liberal feminist theory with policies at odds with Catholic teachings on a wide variety of issues—including abortion, contraception, homosexuality, same-sex marriage, and the ordination of women as priests—can make the label “feminism” problematic for some.

The past few decades have witnessed significant development both of Catholic thought about feminism and of secular feminist theory, paving the way for fruitful interactions between these schools. Catholic philosophers and theologians such as Elizabeth Johnson, Rosemary Radford Ruether, Lisa Sowle Cahill, Janet Smith, Michelle Schumacher, and Prudence Allen have examined aspects of the Catholic faith from myriad feminist perspectives. Secular feminist theory has developed strands of critique of the more traditional liberal feminism that resonate strongly with Catholic women. One example of this is the critique of cultural or relational feminists such as Carol Gilligan, Eva Feder Kittay, Martha Fineman, and Robin West, who argue in various ways that traditional liberal conceptions of justice underlying much of traditional liberal feminism fail to take into account the realities of human dependency and the need for care. Their arguments resonate in many ways with Catholic views on the fundamental interdependency of the human person and the importance of the family (Schiltz 2007b). Another example is the critique of liberal feminism’s defense of sexually permissive practices such as pornography by both radical Marxist feminist Catherine MacKinnon (arguing from the perspective of dominance theory) and Catholic feminists such as Janet Smith and Cassandra Hough (arguing from the perspective of the Catholic Church’s moral teachings).

Similarly intriguing convergences of interests are starting to develop in one of the most contentious topics of debate among feminists of all stripes—theories of gender identity. The issues of whether or not innate differences between men and women exist and whether or not such differences are legally relevant are controversial. They have significant implications for legal and policy issues important to all feminists, such as sex discrimination, workplace reforms to accommodate care work, and same-sex marriage. Catholic teachings historically have adopted the theory of complementarity—namely, that that there are differences between men and women that are not simply biological or socially-constructed (Stabile 2007: 441–2). Reflecting the influence of developments in feminist theory, however, the more contemporary understanding of complementarity being articulated by some Catholic feminists1 offers a much richer and more nuanced account of gender difference than the simplistic caricatures of essentialism readily dismissed by most modern feminists. The more nuanced theory of complementarity being developed by Catholic feminists offers many fruitful avenues of dialogue between religious and secular feminists in areas of common concern.

A Catholic version of complementarity rests on the conviction that the essential differences between men and women are deliberate and instructional. Catholics believe that we are all created in the image and likeness of God (Catechism 2000, 1994: 1701–2). The different ways that God chose to reflect his image in us—some of us as men and some of us as women—thus reflect different aspects of God’s image that he has chosen to reveal to us in our bodily forms. We were not created as man and woman because that is the only way God could figure out how we might reproduce or structure our societies. Rather, we were created as man and women because God wanted to teach us something about him through the experience of those differences. What is God trying to teach us? This theological question lies at the heart of the inquiry into gender theory for many contemporary Catholic feminists.

This contemporary fusion of philosophical, feminist, and theological influences on the gender theory of complementarity has been most insightfully explored by the Catholic philosopher Prudence Allen. Her groundbreaking work on the history of the philosophy of gender establishes complementarity’s long pedigree in the history of philosophical reflection about women in the Western world. In her multi-volume work The Concept of Women and a series of articles, Allen traces the philosophical origins of complementarity from the earliest Greek philosophers to contemporary times, when it comes under the influence of the philosophical schools of phenomenology and personalism. On this philosophical foundation, Allen positions the theological insights of Pope John Paul II, a philosopher deeply influenced by both phenomenology and personalism. Allen argues that John Paul II’s work suggests a theory of complementarity as something that needs to be understood as integral, rather than fractional, articulating a theory she calls “integral complementarity.”

Allen’s theory of ‘integral complementarity’ offers a corrective to the cruder, rigidly essentialist notions of complementarity most often criticized by feminists—both Catholic and secular. It also offers another example of a convergence in Catholic thought about feminism and emerging secular critiques of traditional liberal feminism that could provide a fruitful opportunity for cooperation in addressing issues of common concern to feminist legal theory. In this chapter, I will first briefly sketch out Allen’s description of the philosophical evolution of the gender theory of complementarity, pointing out some similarities and some contrasts with philosophical influences that have shaped more traditional, secular liberal schools of feminism. Then, I will describe how John Paul II’s theological insights are applied by Allen to develop her theory of integral complementarity, illustrating how it avoids the rigid essentialism of earlier conceptions of complementarity. Finally, I will discuss some of the challenges that the integral theory of complementarity poses to Catholics, and some of the promise it offers for feminist legal theory.

The Philosophical Foundations of Complementarity

In this brief chapter, I cannot possibly hope to do justice to the depth of Allen’s analysis as laid out in her abundant scholarship on this issue. My purpose in this sketch is to introduce the basic outlines of her understanding of the development of the theory of complementarity for the purpose of situating it in relationship to parallel developments of feminist theory, to illustrate how the integral theory of complementarity sometimes reflects and sometimes rejects secular feminist insights.

The Classical Origins of Philosophical Theories of Gender Relations

In her painstaking examination of the philosophical arguments about sex identity over the centuries, Allen traces three basic philosophical theories of gender relations over the past 3000 years (Allen 1985, 2002, 2006). One is the unisex view first articulated by Plato. This view “rejects significant differentiation between men and women while defending their basic equality” (Allen 2006: 88). The second is the polarity position, first articulated by Aristotle. This view accepts significant gender differentiation, but rejects equality—instead positing a natural superiority of either man over women (most common in our history) or, more recently, the converse. Allen situates most philosophical theories of gender over the course of centuries since Plato and Aristotle along a spectrum between these two positions. Contemporary secular gender theories, she argues, range from anti-religious secular humanism that gravitates toward the unisex position, to postmodern radical feminism that “vacillate[s] between reverse gender polarity that exalt[s] women’s nature over man’s and a deconstruction of gender differentiation altogether” (Allen 2006: 91).

Allen argues that a third basic philosophical theory of gender relations can also be traced through the centuries, a view that is based on Christian theological and philosophical foundations and was largely developed by Catholic philosophers. This is the principle of gender complementarity, which rejects both the unisex and the polarity views by embracing both fundamental equality and significant differentiation of man and woman.

Late Classical and Medieval Philosophical Groundwork for Complementarity: Augustine, Hildegard of Bingen and Aquinas

Allen argues that the groundwork for this view was laid by Augustine of Hippo, Hildegard of Bingen, and Thomas Aquinas, each through different contributions to the concept of gender complementarity. Allen characterizes Augustine as generally holding a “fragmented” view of gender identity, vacillating between unity and polarity for different purposes (Allen 1985: 218–36). However, she argues that Augustine contributed to the development of complementarity by rejecting the Aristotelian view that the woman’s body is an imperfect version of the ideal male body (Allen 2006: 97–8), arguing instead that both men and women will be resurrected in perfect male and female bodies. Allen points to Augustine’s words from City of God: “There are some who think that in the resurrection all will be men, and that women will lose their sex. … For myself, I think that those others are more sensible who have no doubt that both sexes will remain in the resurrection,” and “[i]n the resurrection, the blemishes of the body will be gone, but the nature of the body will remain. And certainly, a woman’s sex is her nature and no blemish” (Allen 1985: 219, citing Augustine, City of God against the Pagans, XXII, 17).

Allen characterizes the twelfth-century philosopher Hildegard of Bingen as the “foundress of the philosophy of sex complementarity.” As “the first western philosopher to articulate the complete concept of sex complementarity,” Hildegard “[i]ntegrat[ed] the rational, material and spiritual aspects of human nature into a unified whole, [arguing] that women were equal to but significantly different from men.” Allen suggests that this philosophical breakthrough in theories of gender identity was possible for Hildegard because of the environment in which she was educated—a Benedictine double monastery in which, for the first time in history, men and women studied philosophy together. She concludes that “one central factor in the preparation for a philosophy of sex complementarity is the actual experience of women and men jointly participating in the practice of philosophy” (Allen 1985: 408).

Thomas Aquinas’s contribution to complementarity is a bit more complex. On the one hand, he embraced and, indeed, revitalized, Aristotelian notions of sex polarity positing women as inferior to men with regard to the aspects of human nature related to the physical body, including the ability to reason and to be virtuous. On the other hand, though, Aquinas rejected this polarity on the level of theology. Instead, he found some theological significance in the differences between men and women, arguing, “Just as a variety in the grading of things contributes to the perfection of the universe, so the variety of sex makes for perfection of human nature” (Allen 1985: 389). According to Allen, Aquinas:

recognized that in heaven it was not possible to speak of man as superior to woman. At the same time, he believed that it was also necessary, through the integral relation of body and soul, to insist on the significant differentiation of woman and man (Allen 1985: 411–12).

Aquinas’s commitment to this “integral relation of body and soul” is a commitment to the concept of “hylomorphism”—that “the person is a unity of soul and body” (Allen 2004: 69). Although Aquinas may have argued that women’s bodies were inferior to men’s, he also argued that women were equal to men in heaven. Since the woman’s soul that is equal to man’s in heaven is the same soul she possesses during her life, and since his hylopmorphism committed him to the proposition that a person’s soul is not separate from her body—either on earth or in heaven—the ultimate equality of women in heaven raises questions about his position on the bodily inferiority of women on earth. Allen thus argues that Aquinas’s position on hylomorphism at least sets the stage for complementarity, making it possible for us both to build on this theological foundation to reject the unisex view of gender differences by insisting that the differences in the body that is unified to the soul are significant, and to reject the polarity view of gender differences by insisting that both men and women are equal before God in heaven.

Modern Philosophical Roots of Complementarity: Phenomenology and Personalism.

This Thomistic affirmation of the unity of body and soul—this hylomorphism—contrasted sharply with the Cartesian separation of the “sexless” mind from the gendered body that underlay the development of many Enlightenment and post-Enlightenment secular philosophical movements dealing with gender relations (Allen 2004, 2006). Complementarity sprang from two of these post-Enlightenment philosophical movements that rejected this Cartesian duality—phenomenology and personalism.

Phenomenology The development of the concept of complementarity began with two Catholic philosophers who were students of Edmund Husserl: Dietrich von Hildebrand and Edith Stein. Husserl was one of the founders of phenomenology—a philosophical movement that emphasizes subjective, first-person experiences of things as the starting point for philosophical inquiry. Hildebrand and Stein both used phenomenological inquiry to argue that the differences between men and women are more than merely biological—they are metaphysical. According to Hildebrand, “The distinction between men and women shows us two complementary types of the spiritual person of the human species” (Allen 2006: 92, quoting Hildebrand 1991: 13). Stein “turned to a renewed Thomistic metaphysics … affirm[ing] the unity of the soul/body composite, and argued … that the soul has priority in gender differentiation … . The Thomistic metaphysical foundation for the ontological unity of the human person was joined by Stein to a phenomenological analysis to uncover the essence of the ‘lived experience of the body’ in women and in men” (Allen 2006: 93).

According to Stein, women’s “lived experiences” in their female bodies naturally orient them toward supporting new life within their bodies—whether or not they ever actually experience pregnancy or become mothers. And men’s “lived experiences” in their male bodies naturally orient them “toward detachment of seed as fathers”—whether or not they ever actually become fathers (Allen 2006: 93). This different bodily experience of life orients men and women to perceiving and receiving the world differently. Stein does not, however, argue that this different orientation preordains men and women to any single mode of behaving. Indeed, she argued that “the person can and should integrate the feminine and masculine aspects of the complementary gender. This integration protects a woman or a man from the extremes of either gender propensities. Stein concluded that Jesus Christ is the perfect example of such integration; St. Teresa of Avila is another example” (Allen 2006: 94).

The comfort that a phenomenologist such as Edith Stein has in beginning with first-hand experiences as a starting point for philosophical reflection on gender theory is largely compatible with a Catholic, natural law perspective. It reflects a confidence in a person’s most fundamental dispositions, dispositions which are specifically questioned by some schools of secular feminism, while being specifically embraced by other schools of secular feminism. I believe that a closer look at these different perspectives on this issue illustrates some of similarities and differences in the evolution of Catholic and secular feminism on gender theory. Let us now turn to some contemporary gender theory scholarship to see what we can learn.

Consider first the theory of relatio...