DIVORCE AS A SUBSTANTIVE GENDER-EQUALITY RIGHT Karin Carmit Yefet* ABSTRACT This Article—the first half of a diptych that continues with Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming April 2020)—draws on the insight that the position of women in society is nowhere better reflected and constituted than in a nation’s personal status laws. Contemporary feminist and constitutional scholars have devoted much attention to how the laws of marriage affect women’s status in society, but they have largely ignored the potential for divorce to vindicate gender equality norms—and many have overlooked recent political and legal developments that threaten to substantially restrict dissolution rights. This diptych seeks to fill in the academic void in feminist and constitutional scholarship by developing the constitutional argument for divorce as a gender equality right. Recognizing that there are competing conceptions of what constitutional gender equality means, the thesis is that every interpretation of equal protection must guarantee a right of unilateral, no-fault exit from matrimonial chains. This Article establishes the status of marital freedom as a gender-equality right under various substantive visions of constitutional equality. The subsequent Article, Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming April 2020), establishes the status of marital freedom as a gender-equality right under a formal understanding of constitutional equality. To expose the gender-equality implications of divorce law, this diptych unearths the lineage and function of divorce restrictions as gender-status regulation and outlines the gender-specific burdens they impose on women. It further unveils contemporary attempts to restrict divorce as reflecting impermissible status-based judgments about women’s capacities, roles, and destinies. All in all, this diptych concludes that divorce restrictions coerce women to perform the work of wifehood without altering the conditions that continue to make such work a principal cause of their subordination. This makes unilateral no-fault divorce a fundamental right for women attempting to navigate the world as equals and an imperative for a constitutional system committed to disestablishing gender hierarchy. * Associate Professor, Faculty of Law, University of Haifa; a member of the Global Young Academy and the Israel Young Academy of Sciences; alumna Yale Law School, LL.M, J.S.D. programs; Bar Ilan University, LL.B., LL.M honors program, summa cum laude. This Article was selected for the Harry Krause Emerging Family Law Scholars Workshop. My deep gratitude for Robin Fretwell Wilson, Margaret Brinig, Katharine Baker, Marsha Garrison, Akhil Reed Amar, Reva Siegel, and Owen Fiss for thoughtful and inspiring comments that substantially enriched the article. This work is part of my JSD dissertation that has been submitted in 2012 in partial fulfillment of the requirements for a graduate law degree at Yale Law School. 455 456 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:2 TABLE OF CONTENTS INTRODUCTION ....................................................................................... 457 I. CONSTITUTIONAL VISIONS OF GENDER EQUALITY: FORMAL VERSUS SUBSTANTIVE UNDERSTANDINGS .................................. 462 A. Formal Gender Equality: The Antidiscrimination Principle ................... 463 B. A Substantive Understanding of Gender Equality ................................. 467 1. The Anti-Subordination Principle ............................................... 467 2. Historical Foundations for Substantive Gender-Equality Jurisprudence........................................................................... 470 3. “Due Process Equality”: Substantive Protection for Equal Citizenship and Human Dignity ................................................ 473 II. MARITAL FREEDOM AS A SUBSTANTIVE GENDER-EQUALITY RIGHT ............................................................................................ 478 A. Marital Subordination in Historical Perspective ................................... 479 1. The Complementary Functions of Divorce Restrictions in Enforcing Women’s Subordinate Status ...................................... 483 2. Toward a Feminist Understanding of the Equal Protection Clause: Rights of Exit in Early Feminist Theory ......................... 484 B. Legal Equality Versus Marital Reality: Gender Hierarchy in Contemporary Marriages ................................................................. 487 1. Egalitarian Legal Rhetoric: The Modern Transformation of Marital Status Law ................................................................. 488 2. Marital Reality Today: Documenting Private Patriarchy and its Public Consequences ............................................................. 490 a. Gender-Role Differentiation at Home and in the Market .......... 491 b. Decisionmaking Power ......................................................... 500 c. Domestic Abuse ................................................................... 501 C. Divorce: A “Self-Defense” Remedy to Marital Subordination ................ 505 1. Female Divorce Accounts: Stories of Subordination, Degradation, and Devaluation ................................................... 505 2. “His” and “Her” Divorce: From Private Patriarchy to Gender Emancipation ............................................................... 510 III. THE ROLE OF LAW IN SUPPORTING INEGALITARIAN MARRIAGE .. 516 CONCLUSION ........................................................................................... 526 February 2020] DIVORCE AS A SUBSTANTIVE GENDER-EQUALITY RIGHT 457 INTRODUCTION The position of women in a society is nowhere better reflected than in a nation’s personal status laws.1 Regrettably, the laws of marriage have long served as among the chief vehicles for cultivating women’s social and economic dependency on men, inculcating unequal gender roles, and inflicting status-harm on women as a class. The laws of divorce—especially the fault regime that has dominated marital dissolution laws for much of American history—have likewise functioned to maintain gender hierarchy and reify sex-role stereotypes. Even today, the egalitarian marriage is still more a myth than reality.2 American women in the twenty-first century routinely struggle against structural inequities in their marriages. This inequity extends beyond the formal bounds of marriage. It permeates all gender relations and, in doing so, impedes women’s progress towards full citizenship stature. Because of the role marriage has played in fostering both private patriarchy—the control a husband exerts over his wife within a family system3—and public patriarchy by impairing women’s position in society at large,4 feminists have insisted that equality in education, politics, and the workplace cannot be fully realized without corresponding changes in the gender hierarchy of the marital family.5 Accordingly, many liberal feminists 1 See, e.g., Essam Fawzy, Muslim Personal Status Law in Egypt: The Current Situation and Possibilities of Reform Through Internal Initiatives, in WOMEN’S RIGHTS & ISLAMIC FAMILY LAW: PERSPECTIVES ON REFORM 27 (Lynn Welchman ed., 2004) (arguing that the unattainability of divorce for women in Egypt “place[s] women in the position of accepting their inferior status”); Karin Carmit Yefet, The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb, 34 HARV. J.L. & GENDER 553 (2011). 2 See, e.g., Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. 509 (1998) (concluding based on bargaining theory that the prospects for egalitarian marriage, however narrowly defined, are dim); LINDA C. MCCLAIN, THE PLACE OF FAMILIES 146 (2006) (noting that marriage has not yet transformed to reflect altered gender roles). 3 Carol Brown, Mothers, Fathers and Children: From Private to Public Patriarchy, in WOMEN AND REVOLUTION 239 (Lydia Sargent ed., 1981). 4 See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 134, 149 (1989) (noting that the gendered marriage “radically limits” equality of opportunity for women, and that inequality within marriage has deep ramifications for the material, psychological, physical, and intellectual well-being of women). 5 Martha Albertson Fineman, Why Marriage?, 9 VA. J. SOC. POL’Y & L. 239, 248–49 (2001) (arguing that feminists acknowledge that in order for women to act as full citizens in the public sphere, it is necessary to transform the marital family); OKIN, supra note 4, at 4 (noting that justice within marriage is a prerequisite to gaining equality in politics, at work, and in every other sphere). 458 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:2 have advocated egalitarian marriage, which would “encourage and facilitate the equal sharing by men and women of paid and unpaid work, of productive and reproductive labor,”6 as a crucial step towards rectifying women’s continued subordination and economic vulnerability.7 More radical feminist theorists, led by Martha Fineman, have gone so far as to call for the abolition of marriage altogether.8 Neither solution, however, is adequate. The first, egalitarian marriage, is a practical impossibility for the foreseeable future; it would require abolition of gender hierarchy where it is most entrenched.9 The second— abolition of marriage—is misguided: it would deprive individuals and society of the recognized benefits of marriage without guaranteeing