Countenancing the Oppression of Women: How Liberals Tolerate Religious and Cultural Practices That Discriminate against Women


COUNTENANCING THE OPPRESSION OF
WOMEN: HOW LIBERALS TOLERATE
RELIGIOUS AND CULTURAL PRACTICES
THAT DISCRIMINATE AGAINST WOMEN

GILA STOPLER*

I. INTRODUCTION

For centuries, arguments based on religion and culture' have been
used to justify and perpetuate both sex and race discrimination. In the
American South in the nineteenth century, white slave owners justified their
right to subjugate the black race based on religious precepts.2 All major
religions in the world have historically supported and justified slavery.
Christianity, Islam, and Judaism relied on the Old Testament for the
justification of slavery.3 Most recently, the white minority in South Africa
justified its apartheid regime as embodying its divinely ordained supremacy

over black Africans.4 However, notwithstanding the deep religious origins

* J.S.D. candidate, New York University School of Law; LL.M., New York
University School of Law, 2001; LL.M. Washington College of Law, American University,
1997; LL.B., Tel Aviv University, 1994; Attorney, Association for Civil Rights in Israel,
1997-2000. I want to thank David Richards and Carol Gilligan for their guidance and support
and Peggy Davis, Frank Upham, Ratna Kapur, and Jerome Bruner for their insightful
comments on earlier drafts of this article. I would also like to thank Freyda Gottesman and
the Columbia Journal of Gender and Law staff for their invaluable editorial assistance.

1 The definition of culture is extremely broad and encompasses almost every
aspect of human life. For example, Bhikhu Parekh defines culture as "a historically created
system of meaning and significance or ... a system of beliefs and practices in terms of which
a group of human beings understand, regulate, and structure their individual and collective
lives. It is a way of both understanding and organizing human life." Bhikhu Parekh,
Rethinking Multiculturalism: Cultural Diversity and Political Theory 143 (2000). According
to Will Kymlicka, a societal culture is "a culture which provides its members with
meaningful ways of life across the full range of human activities, including social,
educational, religious, recreational, and economic life, encompassing both public and private
spheres." Will Kymlicka, Multicultural Citizenship 76 (1995). Religion is one aspect of
culture, which has traditionally been accorded considerable accommodation by the liberal
state. Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights
26 (2001). The breadth of the definition of culture poses a serious problem where culture is
invoked as a justification for discrimination.

2 Harriet Jacobs, Incidents in the Life of a Slave Girl 74-83 (Signet Classic 2000)

(1861); David Richards, Women, Gays and the Constitution 57 (1998).

3 Courtney W. Howland, The Challenge of Religious Fundamentalism to the
Liberty and Equality Rights of Women: An Analysis under the United Nations Charter, 35
Colum. J. Transnat'l L. 271, 359 (1997).

4 Id. at 348.



2003] Countenancing the Oppression of Women

of slavery, these days religion is no longer perceived as a justification for
either slavery or for racism in general, and religious and cultural precepts
can no longer be used to circumvent criticism and condemnation of racism.5

While there seems to be widespread agreement that religious and
cultural norms can no longer serve as justifications for discrimination of
racial, ethnic, or religious groups,6 religious and cultural norms continue to
be the most prevalent and widely-accepted justifications for discrimination
on the basis of sex.7 Though most countries around the world allegedly
espouse equality between the sexes, and this notion is incorporated both in
international and national laws, simultaneously there is widespread

5 See, e.g., Howland, supra note 3, at 362-65; Charles R. Lawrence III, The Id, the
Ego, and Unequal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317
(1987). "While our historical experience has made racism an integral part of our culture, our
society has more recently embraced an ideal that rejects racism as immoral." Id. at 322-23.
Lawrence contends that while racism has been excluded from the conscious level, it still
influences the unconscious level. I agree with Lawrence and I submit that sexism has not
even reached the point at which it is excluded from the conscious level. Sexist norms are still
viewed as moral by many, especially when they can be anchored in religious and cultural
precepts. Needless to say, there still exist groups of extremists that try to promote racial,
ethnic, and religious discrimination as legitimate ideologies; however, most people
vehemently reject such ideologies, at least on the conscious level. See also discussion, infra
Part III.A (on the International Convention on the Elimination of all Forms of Racial
Discrimination).

6 In this article, I will discuss interchangeably discrimination on the basis of race,

ethnicity, and religion. Though race, ethnicity, and religion are each different characteristics,
often groups can be distinguished from one another by two or more of these characteristics,
and it is often hard to tell which one of them is the cause of intolerance toward the group.
Further, these three bases for discrimination are often discussed interchangeably. For
example, the International Convention on the Elimination of all Forms of Racial
Discrimination defines racial discrimination as distinction based on race, color, descent, or
national or ethnic origin. International Convention on the Elimination of all Forms of Racial
Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, 216 [hereinafter Race Convention]. The
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities talks interchangeably about national, ethnic, religious, and linguistic
groups. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, G.A. Res. 135, U.N. GAOR, 47th Sess., Supp. No. 49, at 211, U.N.
Doc. A/RES/47/135 (1992).

7 See Hilary Charlsworth & Christine Chinkin, The Boundaries of International
Law: A Feminist Analysis 239 (2000) ("While the right to gender equality on the one hand,
and religious and cultural rights on the other, can be reconciled by limiting the latter, in
political practice cultural and religious freedom are accorded much higher priority nationally
and internationally."). See also Ann Elizabeth Mayer, Reflections on the Proposed United
States Reservations to CEDAW: Should the Constitution Be an Obstacle to Human Rights?,
23 Hastings Const. L.Q. 727, 771 (1996) (discussing the defeat of ERA and the refusal of the
United States to ratify the Convention on the Elimination of All Forms of Discrimination
Against Women, Mayer notes, "Opponents of women's rights have discovered that religious
ideologies afford one of the few effective weapons that they can deploy against women's
rights; the rise of well-funded and energetic religiously-oriented organizations opposed to
women's rights continues to be a factor in keeping the United States from adopting more
mainstream ideas about women's rights.").



Columbia Journal of Gender and Law

acceptance of the notion that groups have the right to maintain religious and
cultural norms that discriminate against women. 8

Though modem liberal theory is commonly understood as
guaranteeing similar rights to both men and women, I will argue that there
exists a tremendous gap between this understanding of liberal theory and
the reality of both liberal theory and liberal practice in relation to
discrimination against women. 9 A similar gap exists between the liberal
attitude toward sex discrimination and the liberal attitude toward racial,
ethnic, and religious discrimination. My main focus will be on why there is
such a considerable gap between the ostensible liberal stance on
discrimination against women and the liberal practice regarding such
discrimination, especially when the discrimination stems from religious and
cultural practices. Even more important, I will attempt to give some insight
into how this gap is maintained and how the acceptance of what sometimes
amounts to blatant discrimination against women can be promoted as liberal
concern for human rights.

In particular, a major reason that sex discrimination due to religious
and cultural norms is perceived as almost benign and far less insidious than
discrimination on the basis of race, ethnicity, and religion, is the erroneous
and detrimental manner in which the situation of women is compared to that
of racial, ethnic, and religious groups. Those who conclude that
discrimination against women due to cultural and religious norms either
does not exist or is not as insidious as discrimination against racial, ethnic,
and religious groups do so without taking into account the structural,
political, sociological, and psychological differences between women as a
group and racial, ethnic, and religious groups. It is imperative to understand
the differences in the way these groups are structured, in the way their
members are situated vis-A-vis each other and vis-A-vis their oppressors, and
in the way the discrimination against them is justified, perpetuated, and
inculcated. Also, discrimination against women is so enmeshed into the
fabric of society that it sometimes becomes invisible and therefore
uncontestable. Only by understanding this can liberals come to realize the

8 For example, as will be discussed later, liberal democracies such as Israel and
India maintain religious family laws that discriminate against women, the Israeli government
has initiated segregation between men and women in certain public transportation routes and
in certain vocational training courses in order to accommodate the demands of leaders of the
ultra-Orthodox Jewish community, and many countries including the United States give
public support in the form of tax exemptions or financial aid to religious institutions that
discriminate against women. For further examples, see Susan Moller Okin, Is
Multiculturalism Bad for Women?, in Is Multiculturalism Bad for Women? 9 (Joshua Cohen
et al. eds., 1999) (discussing issues such as polygamy, female genital mutilation, and child
marriages) [hereinafter Okin, Bad for Women].

9 See, e.g., Deborah L. Rhode, Speaking of Sex: The Denial of Gender Inequality
(1997); Carole Pateman, The Disorder of Women: Democracy Feminism, and Political
Theory 4-5 (1989) [hereinafter Pateman, The Disorder of Women].

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Countenancing the Oppression of Women

true insidious nature of sex discrimination, and recognize that religious and
cultural norms can no more serve as justifications for sex discrimination
than they can serve as justifications for racial, ethnic, and religious
discrimination.

In this article, I will discuss various aspects of discrimination
against women due to religious and cultural practices in three liberal
democratic countries: India, Israel, and the United States. While these
countries differ markedly in their histories, cultures, and the structure of
their respective societies, they are all liberal democracies that espouse
equality for women on the declaratory level.'0 Nevertheless, as I will
explain, in all these countries discrimination against women due to religious
and cultural practices persists, and rather than being challenged by the state,
it is at times sanctioned and perpetuated by it.

Part II of the article will briefly discuss the feminist critique of
liberalism and will argue that discrimination on the basis of sex is as
insidious as discrimination on the basis of race. Part III will include an
examination of international and national laws and how they deal with the
intersection between race and sex discrimination, and religious and cultural
practices.

Subsequent parts of the article will examine various reasons and
mechanisms that can account for the different attitudes toward race and sex
discrimination that are a result of religious and cultural practices. The first
mechanism, explored in Part IV, is familial ideology. As the basic unit of
society, the structure of the family and the traditional gender roles in the
family have played a crucial role in defining women's status. At the same
time, the centrality of the family in all religions and cultures, as well as its
definition as a private sphere in which the state should not interfere, have
made the familial realm a central site of oppression for women. In the time
of slavery, slaves were considered the private property of the patriarch
along with the patriarch's wife and their children, and the patriarch was
presumed to treat them with love and care as part of his extended family."
While the falsity of this construct has long been exposed, the construct of
the wife as the property of her husband and a beneficiary of his unqualified
love and care still plays a significant role in many contemporary models of
the family.

'0 In both the United States and India, women's right to equality is protected by a

constitution. In the United States, women's general right to equality is protected by the equal
protection clause of the Fourteenth Amendment of the U.S. Constitution. U.S. Const. amend.
XIV § 1. In India, women's general right to equality, as well as their right to equality of
access to public services and to equal employment opportunities, is protected by Articles
Fourteen, Fifteen, and Sixteen of the Indian Constitution. India Const. art. 14, 15, 16. In
Israel, which does not have a constitution, women's right to equality is protected by law. The
Women's Equal Rights Law, S. H. 248 (1951).

" Richards, supra note 2, at 461.

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Part V will discuss a second mechanism that is especially pertinent
to women-the rhetoric of choice. One of the strongest myths that obstruct
feminist struggles is the myth that many of the infringements of rights
women suffer are the result of their own choices. Respecting choices made
by free autonomous individuals is a fundamental tenet of liberal theory,
which is based on individual autonomy.12 Cultural and religious groups that
do not place any value on the free choices of their members have exploited
this aspect of liberalism to counter feminist attacks on violations of
women's rights that are committed by the group.' 3 Questions about how
choices are made and how they should be examined are crucial to
evaluating women's acceptance and endorsement of religious and cultural
practices that subjugate them. Similar choice and consciousness problems
can arise for religious, ethnic, and racial minorities that suffer from
discrimination. However, for reasons that I will discuss, such problems are
less severe in those circumstances and, more often than not, third parties do
not perceive them as legitimate justifications for the continuation of those
types of oppression.

Additional issues that affect the treatment of religious and cultural
justifications for sex discrimination and for race discrimination will be the
subjects of Parts VI and VII. In Part VI, I will discuss how, unlike racial,
ethnic, and religious groups, women comprise a group, but they are not a
community. The implications of this include: a lack of space for women in
which to form an awareness of their oppression, minority women's forced
choice between loyalty to their minority group and their rights as women,
the different effects on women as opposed to racial and ethnic minorities of
the essentialization of sameness and difference between groups and inside
groups, and the different effects on women as opposed to racial and ethnic
minorities of the essentialization of religion and culture. In Part VII, I will
discuss the role of politics and its effect on the acceptance of religious and
cultural justifications for sex discrimination, as well as its effect on the
rejection of such justifications for racial discrimination.

Part VIII of the article looks at suggested remedies for the problem
of the wide acceptance of sex discrimination due to religious and cultural
reasons.

12 See. e.g., Joan Williams, Gender Wars: Selfless Women in the Republic of

Choice, 66 N.Y.U. L. Rev. 1559, 1562 (1991); James Miller, Of Choice, 66 Soc. Res. 1121,
1121 (1999).

13 See, e.g., discussion infra Parts lII.C, VI.E, and VII.B (on segregation between
men and women in public services in Israel).

[Vol. 12:1



2003] Countenancing the Oppression of Women 159

I. LIBERALISM, WOMEN'S RIGHTS, AND THE IMPORTANCE
OF EQUALITY FOR WOMEN

A. Liberalism and Women's Rights

Liberalism is generally understood to be a political theory that
places the individual at the center and sees each individual as a free and
equal person. 14 Recognition of every individual's uniqueness and humanity
lies at the core of liberalism, which sees all persons as deserving of mutual
respect, civil and political liberties, and decent life chances. 5 Liberalism
promotes tolerance and protects freedom of conscience, religion, speech,
and assembly.' 6 While many liberal theorists believe personal autonomy is
the fundamental tenet of liberalism, other liberal theorists regard tolerance
as liberalism's fundamental principle.' 7 Notwithstanding the egalitarian
basis of liberalism, critical legal scholars, post-colonial theorists, and
feminists have all criticized liberalism as exclusionary and as maintaining
the hegemony of dominant groups. s

14 See Pateman, The Disorder of Women. supra note 9, at 4; see also John Rawls,

The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765, 774 (1997).
15 Amy Gutmann, Introduction, in Charles Taylor, Multiculturalism: Examining

the Politics of Recognition 3, 9 (Amy Gutmann ed., 1994).
16 Steven C. Rockefeller, Comment, in Multiculturalism: Examining the Politics of

Recognition, supra note 15, at 87, 90.

17 Kymlicka, supra note 1, at 154-55.

18 See, e.g., Mary J. Matsuda, Looking to the Bottom: Critical Legal Studies and

Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 326-27 (1987). Describing the critical legal
studies perspective, Matsuda says:

The movement known as Critical Legal Studies is characterized by
skepticism toward the liberal vision of the rule of law, by a focus on the
role of legal ideas in capturing human consciousness, by agreement that
fundamental change is required to attain a just society, and by a utopian
conception of a world more communal and less hierarchical than the
one we know now.

Id. at 326-27.

See also Kimberl& Williams Crenshaw, Race Reform, and Retrenchment:
Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 133 (1988)
(discussing the role of liberal ideology in the perpetuation of racial discrimination through
adherence to formal equality and embrace of legitimating hegemonic visions, while
criticizing other Critical Legal Studies scholars for focusing their criticism exclusively on
liberal ideology, neglecting the role of racism as a hegemonic ideology); Chantal Thomas,
Causes of Inequality in the International Economic Order: Critical Race Theory and
Postcolonial Development, 9 Transnat'l L. & Contemp. Probs. 1 (1999) (a critique of
liberalism from the perspective of postcolonial development theory). For feminist critiques
of liberalism, see notes 22-31 and accompanying text.



Columbia Journal of Gender and Law [Vol. 12:1

Though liberal political theory has rarely put the issue of women's
equality at the center of its concerns, 9 it has espoused the notion of equality
between men and women, at least on the declaratory level. However, most
liberal theorists have been much more concerned with equality among men
than with equality for women.20 One of the manifestations of this attitude
toward women's rights is the belief shared by many, including many
liberals, that discrimination against women is not as harmful or as insidious
as discrimination on bases such as race, ethnicity, and religion.2'

While feminists disagree on whether modern liberalism is
irredeemably patriarchal 22 or whether the perpetuation of discrimination
against women is due to a combination of intertwined liberal ideologies
(patriarchy and capitalism 2 3), there is widespread agreement amongst
feminists both that classical liberalism was deeply patriarchal and that
sexual inequality is still prevalent today.24 Carole Pateman believes that
democratic theory itself has to undergo radical change in order to allow the
incorporation of women as fully equal citizens.

Women have always been incorporated into the civil order as
"women," as subordinates or lesser men, and democratic theorists
have not yet formulated any alternative. The dilemma remains.
All that is clear is that if women are to be citizens as women, as
autonomous, equal, yet sexually different beings from men,
democratic theory and practice has [sic] to undergo a radical
transformation. 5

19 See, e.g., Susan Moller Okin, Justice, Gender, and the Family 7-8 (1989)
[hereinafter Okin, Justice]; Valerie Lehr, Queer Family Values Debunking the Myth of the
Nuclear Family 19 (1999); Martha C. Nussbaum A Plea for Difficulty, in Is Multiculturalism
Bad for Women?, 105, 105 (Joshua Cohen et al. eds., 1999).

20 One notable exception is John Stuart Mill, The Subiection of Women (Susan M.

Okin ed., 1988). Carole Pateman argues that political theory is thoroughly patriarchal and is
only concerned with the political relationships between men, which she terms the fraternal
social contract or the fraternal pact. See Pateman, The Disorder of Women supra note 9, at
33-53.

21 See, e.g., Charlsworth & Chinkin, supra note 7, at 230; Martha Nussbaum,

Women and Human Development: The Capabilities Approach 298-99 (2000) [hereinafter
Nussbaum, Women and Human Development]; Ann Elizabeth Mayer, A "Benign"
Apartheid: How Gender Apartheid has been Rationalized, 5 UCLA J. Int'l L. & Foreign Aff.
237,247 (2000) [hereinafter Mayer, Apartheid].

22 I use the term "patriarchy" in this context to describe men's domination over

women, both politically and sexually. See Carole Pateman, The Sexual Contract 2 (1988)
[hereinafter Pateman, The Sexual Contract].

23 Rogers M. Smith, Beyond Tocqueville, Myrdal, and Hartz: The Multiple

Traditions in America 87 Am. Pol. Sci. Rev. 549, 556 (1993).

24 Pateman, The Sexual Contract, supra note 22, at 19.

25 Pateman, The Disorder of Women, supra note 9, at 14 (emphasis in original).

Elaborating on this point, Pateman states that:



2003] Countenancing the Oppression of Women 161

She disagrees with what is called "the dual-systems argument," which sees
patriarchy and liberal capitalism as two autonomous systems2 6 and argues
that liberal capitalism and the capitalist economy have a patriarchal
structure, which prevents women from being recognized as individuals, as
workers, and as heads of families. 27

Suzan Okin holds a similar view regarding women's unequal
position in liberal political theory and in a capitalist economy. She believes
that only a radical restructuring of both the family and the political order
will enable women to participate in society as equal members. 8 0k in points
to the benefits to capitalist economy from women's inequality:

The continuing inequality of women, and not only of those within
the work force, clearly performs important functions for the
capitalist economy in which we live. Outside of the recognized
work force, women perform the functions held to be natural to
their sex-child-rearing and housework-which are given no
economic recognition at all. As a number of feminists have
pointed out, conventional notions of the family and its sex roles
have facilitated the distinct separation of the public and private

29spheres, and of productive labor into two types.

The theoretical and social transformation required if women and men are
to be full members of a free, properly democratic (or properly
"civilized") society is as far-reaching as can be imagined. The meaning
of "civil society" ... has been constructed through the exclusion of
women and all that we symbolize. To "rediscover" a patriarchal
conception of civil society will do little to challenge men's patriarchal
right. To create a properly democratic society, which includes women as
full citizens, it is necessary to deconstruct and reassemble our
understanding of the body politic. This task extends from the dismantling
of the patriarchal separation of private and public, to a transformation of
our individuality and sexual identities as feminine and masculine beings.
These identities now stand opposed, part of the multi-faceted expression
of the patriarchal dichotomy between reason and desire. The most
profound and complex problem for political theory and practice is how
the two bodies of humankind and feminine and masculine individuality
can be fully incorporated into political life. How can the present of
patriarchal domination, opposition and duality be transformed into a
future of autonomous democratic differentiation?

Id. at 52-53.
26 Pateman points to Heidi Hartmann and Zillah Einstein as two of the feminists

who rely on the dual systems argument. See Pateman, The Sexual Contract, supra note 22, at
38.

27 Id.

28 Susan Moller Okin, Women in Western Politcal Thought 286, 289 (1979).

29 Id. at 291.



Columbia Journal of Gender and Law

Notwithstanding feminist attacks on the patriarchal nature of liberal theory,
most liberal theorists deem liberalism an egalitarian theory for both men
and women.30 Furthermore, most liberals assume that liberal practice, as
manifested in many liberal democracies, is itself egalitarian and succeeds in
living up to liberal theory's promise of equality for women. 31 However, if
the feminist critics of liberalism are correct in thinking liberal theory does
not give women the equality it purports to give them, then it is hardly
surprising that discrimination against women is a persistent phenomenon in
the practice of liberal societies, such as those discussed in this article.

In addition to the aforementioned difficulties in incorporating
women's rights into liberal theory, liberalism has a special difficulty coping
with violations of women's rights due to religious and cultural practices.
The liberal distinction between the public sphere and the private sphere
serves to marginalize and obscure discrimination against women.
Additionally, the liberal emphasis on tolerance, despite its benign intent and
its many positive aspects, serves to further obscure the insidious nature of
religious and cultural practices that discriminate against women. The
public/private distinction has functioned as an ideological device that
justifies restrictions on women and maintains their inferior status by
relegating them to the private sphere while reserving the public sphere for
men. 32 At the same time, religion has been confined to the private sphere in
an attempt to ensure the co-existence of conflicting religious beliefs and to
guarantee freedom of conscience to all.33 The confinement of religion to the

30 See Okin, Justice, supra note 19, at 11-13.

31 See, e.g., Susan Faludi, Backlash: The Undeclared War Against American
Women (1991).

To be a woman in America at the close of the 2 0th century-what good
fortune. That's what we keep hearing anyway. The barricades have
fallen, politicians assure us. Women have "made it," Madison Avenue
cheers. Women's fight for equality has "largely been won," Time
magazine announces. Enroll at any university, join any law firm, apply
for credit at any bank. Women have so many opportunities now,
corporate leaders say, that we don't really need equal opportunity
policies. Women are so equal now, lawmakers say, that we no longer
need an Equal Rights Amendment. Women have "so much," former
president Ronald Reagan says, that the white house no longer needs to
appoint them to higher office. Even American Express ads are saluting a
woman's freedom to charge it. At last women have received their full
citizenship papers. And yet....

Id. at ix.
32 Helena Znaniecka Lopata, The Interweave of Public and Private: Women's

Challenge to American Society, 55 J. Marriage & Family 176, 176 (1993).

33 Rex J. Ahdar, Worlds Colliding: Conservative Christians and the Law 83 (2001).

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private sphere has significantly curtailed its power in the public sphere.
However, the notion of religion as a private matter along with the primacy
of tolerance, freedom of conscience, and the right to privacy, has served to
create an almost impenetrable sphere in which religious and cultural
practices that discriminate against women continue to exist undisturbed by
the liberal state and are at times even aided by it.

While co-existence of different racial, ethnic, and religious groups
is perceived as a public matter of vital importance to the liberal state that
calls for toleration and mutual concessions, co-existence between men and
women is deemed a private matter which the state should keep out of,
especially where it involves religious and cultural norms. As a result,
indiscriminate respect for cultural and religious practices of different racial,
ethnic, and religious groups is hailed as a manifestation of tolerance,
whereas the fact that some of these practices discriminate against women is
marginalized and ignored. Similarly, other manifestations of discrimination
against women in liberal societies are often dismissed as inevitable or
unimportant.

B. How Important is Women's Equality?

Discrimination against women is a phenomenon that is as unjust,
severe, and debilitating as discrimination against racial, ethnic, and
religious groups.3 4 The fact that it is often not perceived as such is one
major explanation for society's continuing acceptance of it. In a
memorandum prepared for the President's Commission on the Status of
Women, which was convened at the request of President Kennedy in 1961
to study the position of women in American society, black feminist lawyer
and civil rights activist Pauli Murray argued that the gravity and nature of
women's subordination were akin to those of racial oppression.3 5 Murray
reasoned that women, like racial minorities, were an easily identifiable
group that to a large degree was unrepresented in formal decision-making
processes. Women's legal history was one of slow progress against
considerable resistance from the dominant male group. Their inferior
position, like that of blacks, was premised on supposedly inherent
differences, so that legal distinctions based upon sex were particularly
susceptible to applications prolonging and reinforcing women's inferior
status.36 In a presentation before the commission, Murray argued that "[t]he

34 See, e.g., Okin, Justice, supra note 19, at 174-75; bell hooks, Ain't I a Woman:
Black Women and Feminism 1 (1981); Mayer, Apartheid, supra note 21, at 337-38. See also
Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial
Perspective, 59 U. Chi. L. Rev. 453,484-86 (1992).

35 Serena Mayeri, Note, "A Common Fate of Discrimination": Race-Gender
Analogies in Legal and Historical Perspective, 110 Yale L.J. 1045, 1056-57 (2001).

36 Id. at 1057.

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attributes of sex have obscured the attributes of humanity in much the same
way the attributes of the slave as property also obscured his attributes as a
thinking human being. 37  In drawing the analogy between sex
discrimination and race discrimination, Murray relied on, among other
things, Gunnar Myrdal's influential 1944 study of the racial problem in the
United States, "An American Dilemma," which included an appendix on
the similarities between racism and sexism. According to Myrdal, women,
similar to blacks, "were branded intellectual inferiors, deemed uneducable,
confined to certain societal roles, excluded from many fields of
employment, denied citizenship rights and mythologized as 'content' in
their subordinate positions., 38 Though Myrdal's study was published in
1944, its description of women's oppression is still very pertinent today in
many parts of the world, especially in traditional communities. What is
even more striking is that such oppression still exists in traditional
communities that reside in liberal countries, such as the ultra-Orthodox
Jewish community in Israel and the Oriya Hindu community in India, and
the liberal countries in which they reside do not see it as their duty to put an

39end to this oppression.
In the 1973 case Frontiero v. Richardson, a plurality of the United

States Supreme Court agreed with the appellants' contention that sex
discrimination was parallel to racial discrimination and should therefore be
subjected to strict judicial scrutiny.4 Though the strict scrutiny test for sex
discrimination was never adopted by a majority of the Supreme Court, who
chose instead to subject sex-based classifications to intermediate scrutiny,41

it is worthwhile mentioning the reasoning of the court in Frontiero.
Reflecting on the history of women's oppression in the United States, the
plurality stated that "our Nation has had a long and unfortunate history of
sex discrimination" that was rationalized by an attitude of paternalism
which in effect

37 Id. (quoting from Pauli Murray, Presentation to the Committee on Civil and
Political Rights of the President's Commission on the Status of Women 351 (1962)).
Murray's main incentive for insisting that sex discrimination be recognized as the severe
problem that it is, and treated accordingly, was her belief that such recognition was an
imperative if black women were to be granted any rights. Mayeri, supra note 35, at 1063.

38 Mayeri, supra note 35, at 1058.

39 See infra Part IV.C.3 (on the Oriya Hindu community in India); infra Parts
IV.C.2, VI.E, and VII.B (on the ultra-Orthodox Jewish community in Israel).

40 Frontiero v. Richardson, 411 U.S. 677, 682 (1973).

41 The test announced in United States v. Virginia states that the government must

have an "exceedingly persuasive justification" for classifications based on sex. See United
States v. Virginia, 518 U.S. 515, 531 (1996). However, this test might no longer be good law
in light of Nguyen v. I.N.S., 533 U.S. 53 (2001). In Nguyen, a majority of the court applied
the heightened scrutiny test in a manner that the four dissenters referred to as "a stranger to
our precedents," id. at 74 (O'Connor, J., dissenting), and "a deviation," id. at 97 (Breyer, J.,
dissenting).

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2003] Countenancing the Oppression of Women 165

put women, not on a pedestal, but in a cage. ... [T]hroughout
much of the 19t ' century the position of women in our society
was, in many respects, comparable to that of blacks under the pre-
Civil War slave codes. Neither slaves nor women could hold
office, serve on juries, or bring suit in their own names, and
married women traditionally were denied the legal capacity to
hold or convey property or to serve as legal guardians of their
own children.42

The Court continued to say:

In part because of the high visibility of the sex characteristic,
women still face pervasive, although at times more subtle,
discrimination. ... [S]ex, like race and national origin, is an
immutable characteristic determined solely by the accident of
birth ... [which] frequently bears no relation to ability to perform
or contribute to society.43

For all these reasons, the Frontiero plurality found that sex discrimination is
as severe and as unjust as racial discrimination and should be subject to the
highest level of scrutiny.

Some of the restrictions described by the Frontiero plurality, such
as the inability to hold office, hold or convey property, and serve as legal
guardians, are no longer generally applicable either to women or to racial
minorities in the American legal system. However, these restrictions, as
well as others, are still very applicable to women in many parts of the
world, and are justified as manifestations of religious and cultural norms.
Even in the United States, women who are barred from ministerial positions
because of their sex have no recourse to the law, 44 and the Supreme Court
has refused to intervene where an ordinance passed by an American Indian
tribe denied inheritance rights to children of women tribe members who
married outside of the tribe while extending those rights to children of male
members who married outside of the tribe.45 Thus, as discussed below,

42 Frontiero, 411 U.S. at 684-85.

43 Id. at 686.

"E.g. EEOC v. Catholic University of America, 83 F. 3d 455 (D.C. Cir. 1996)
(refusing to intervene where a Catholic University professor claimed that she was denied
tenure due to sex discrimination). See also discussion infra Part III. B.

45 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (finding ordinance passed
by the tribe denied membership in the tribe to children of women tribe members who
married outside of the tribe while extending membership to children of male tribe members
who married outside of the tribe. As a result of the denial of membership the children,
although raised on the reservation and residing there as adults were barred from voting in
tribal elections or holding secular office in the tribe; had no right to remain on the



Columbia Journal of Gender and Law

religious and cultural norms that are maintained by various groups, and that
are sanctioned by some liberal societies, prevent women from holding
public offices, from inheriting property, and from being legal guardians of
their own children. As a result, the situation of many women in liberal
societies today is in some respects parallel to the situation of women in the
nineteenth century in the United States, mainly because various forms of
gender oppression continue to be justified by many liberals in the name of
upholding religious and cultural norms.

In addition to its devastating effects on women, discrimination
against women and its perseverance contribute directly to the continuation
of other forms of discrimination and oppression. Historically, the
justification and perpetuation of slavery and of discrimination against
blacks in the United States was inexorably linked with white men's sexist
attitudes toward black women, white women, and black men.46 Anti-
miscegenation laws and the lynching of black men were justified by the
need to protect white women's chastity; white women's confinement to the
house was justified by the need to protect them from black men; and black
women's sexual slavery and the hard physical work they were forced to do
were justified by the racist and sexist perception of them as the opposite of
the chaste and delicate white woman on the pedestal .4 The sociologist
Orlando Patterson identifies both the misogyny in the contemporary
American black community and the animosity between the sexes, which he
attributes at least in part to the legacy of slavery and racial oppression, as
the keys to the continuing difficulty of this community to improve its socio-
economic status 8 According to Patterson, what he terms the "Black gender
crisis" should be at the top of the internal agenda of the black community.49

Other scholars see the achievement of equality for women as an
essential step in eliminating poverty and fostering development.5 ° Due to

reservation in the event of their mother's death, or to inherit their mother's home or her
possessory interests in the communal lands. Id. at 52-53)

46 See Richards, supra note 2.

47 Id. at 222-23, 461. See also Adele Logan Alexander, "She's No Lady, She's a
Nigger": Abuses, Stereotypes, and Realities from the Middle Passage to Capitol (and Anita)
Hill, in Race, Gender and Power in America: The Legacy of the Hill-Thomas Hearings 3, 7
(Anita Hill & Emma Jordan eds., 1995); Emma Coleman Jordan, The Power of False Racial
Memory and the Metaphor of Lynching, in Race, Gender and Power in America: The
Legacy of the Hill-Thomas Hearings supra, at 37, 39-41.

48 Orlando Patterson, The Crisis of Gender Relations Among African Americans,

in Race, Gender and Power in America: The Legacy of the Hill-Thomas Hearings, supra
note 47, at 56.

49 Id. at 56, 95.
50 See, e.g., Nussbaum, Women and Human Development, supra note 21, at 4-5;

Susan Moller Okin, Reply, in Is Multiculturalism Bad for Women?. supra note 8, at 117,
120.

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Countenancing the Oppression of Women

reasons such as lack of proper education, lack of property rights, wage
discrimination, women's unpaid work, and cultural and social disadvantage,
women comprise seventy percent of the world's poor.51 Women's poverty
has a direct effect on the well-being of children; in the United States alone,
more than half of the poor households with dependent children are
maintained by a single female parent.52 In addition, some scholars identify
the family as the most important school of justice and morality, and contend
that it will be impossible to achieve a just society as long as injustice and
prejudice are inculcated into children through their experiences growing up
in unjust and unequal families.53 The above examples illustrate how critical
the eradication of discrimination against women is-not only to women, but
also to society as a whole and to eradicating all forms of prejudice and
injustice.

III. INTERNATIONAL AND DOMESTIC LAWS

A. International Law

An examination of international and domestic laws shows that the
laws often apply quite different standards to race discrimination and to sex
discrimination. On the international level, a multitude of conventions and
courts prohibit all forms of racism and create enforcement mechanisms,
including criminal sanctions. 54 The International Court of Justice has

wholly rejected South African apartheid, although it was based on strong
religious beliefs. 55 Also, the preamble to the International Convention on
the Elimination of All Forms of Racial Discrimination ("Race Convention")
states the following:

Convinced that any doctrine of superiority based on racial
differentiation is scientifically false, morally condemnable,
socially unjust and dangerous, and that there is no justification for
racial discrimination, in theory or in practice, anywhere, ...
Convinced that the existence of racial barriers is repugnant to the
ideals of any human society, Alarmed by manifestations of racial
discrimination still in evidence in some areas of the world and by
governmental policies based on racial superiority or hatred, such
as policies of apartheid, segregation or separation .... 56

51 Charlesworth & Chinkin, supra note 7, at 8.

52 Okin, Justice, supra note 19, at 3.
53 Id. at 17-22.

54 Mayer, Apartheid, supra note 21, at 241-47.
55 Howland, supra note 3, at 347-49.

56 Race Convention, supra note 6, at 214 (emphasis in original).

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Columbia Journal of Gender and Law

In contrast, the strongest language that can be found in the preamble to the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) states,

Recalling that discrimination against women violates the
principles of equality of rights and respect for human dignity, is
an obstacle to the participation of women, on equal terms with
men, in the political, social, economic and cultural life of their
countries, hampers the growth of the prosperity of society and the
family and makes more difficult the full development of the
potentialities of women in the service of their countries and of
humanity .... 57

While racial discrimination and the idea of racial supremacy are
intrinsically bad-scientifically false, morally condemnable, socially unjust
and dangerous, without justification, and repugnant to the ideals of any
human society-sex discrimination is none of that. The chief problem with
sex discrimination is factual rather than intrinsic: it is an obstacle to
women's equal participation in the life of their countries, hampers the
growth of the prosperity of society and the family, and decreases women's
ability to contribute to their countries and to humanity. Further, the main
victim of sex discrimination is not the woman herself, but society. Thus,
reading the preamble to CEDAW, especially when contrasted with the
preamble to the Race Convention, one could conclude two things. First,
there is nothing intrinsically wrong with sex discrimination, and if the
factual problems discussed in the preamble would somehow be solved, then
sex discrimination would no longer be problematic. Second, as society is
the main victim of sex discrimination, it should have the right to decide that
it is willing to bear the burden of having at its service women whose
potentials are not fully developed, and to continue to discriminate on the
basis of sex. Though this reading of CEDAW may seem incongruous, it
reflects the way the international community tends to view discrimination
against women that is motivated by religious and cultural precepts. One of
the obstacles women face in the area of international law is the general
consensus among states that oppression on the basis of race is considerably
more serious than oppression on the basis of sex. 8

In two of its central provisions, Articles Two and Five, CEDAW
proclaims that states should take all appropriate measures to modify
existing legislation, customs, practices, and social and cultural patterns of
conduct that discriminate against women or that are based on the idea of the

57 Convention on the Elimination of All Forms of Discrimination Against Women,
Dec. 18, 1979, 1249 U.N.T.S 13, 15 [hereinafter CEDAW].

59 Charlsworth & Chinkin, supra note 7, at 230.

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Countenancing the Oppression of Women

inferiority or superiority of one of the sexes.59 However, many states have
made reservations from these provisions, mainly on religious grounds,
stating that these provisions are inapplicable as far as they contradict their
domestic or religious laws as interpreted by them. The result is that those
countries whose religious and cultural practices are the most oppressive to
women have no international obligation to change these practices. This
creates the impression that unlike other international human rights treaties,
such as the Race Convention, CEDAW is not a binding international
obligation, and that these reservations should not "be scrutinized against the
yardstick of international standards of equality for women because of the
religious and cultural sensitivity of the subject matter." 6 In contrast to the
multitude of reservations from CEDAW, there are few substantive
reservations to the Race Convention, and none of them are on the basis of
religion or culture.6' Perhaps the most telling difference between race and
sex discrimination in international law is that while the prohibition on race
discrimination is considered jus cogens and is therefore non-derogable, the
prohibition against sex discrimination is not.62

Thus, when compared to the strong language used in international
documents prohibiting race discrimination, the language in international
documents such as CEDAW uses a much more qualified and reticent
vocabulary and gives the states much more latitude in implementing its
provisions. 6

3 As some feminist commentators argue, the existing
jurisprudence of international law has legitimized the unequal position of
women around the world rather than challenged it.64 The public/private
distinction in international law, which keeps "private matters" such as the
family out of the purview of international law, allows it to co-exist side by
side with cultural and religious practices that discriminate against women,
without the need to criticize or condemn those practices.65 Similar to the
public/private distinction in liberalism, the public/private distinction in
international law is specifically intended to keep women's subordination
outside the realm of legal intervention.66

59 CEDAW, supra note 55, at 16-17.
60 Charlsworth & Chinkin, supra note 7, at 108.

61 Id. Most reservations to the Race Convention are to its dispute resolution

provisions. Race Convention, supra note 6, at 268-318.
62 1d. at 120.

63 Mayer, Apartheid supra note 21, at 246-48.

64 Charlsworth & Chinkin, supra note 7, at 1.
65 Id. at 57.

66 Celina Romany, State Responsibility Goes Private: A Feminist Critique of the

Public/Private Distinction in International Human Rights Law, in Human Rights of Women:
National and International Perspectives 85, 90 (Rebecca J. Cook ed., 1994) [hereinafter
Human Rights of Women].

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Columbia Journal of Gender and Law

B. American Law

On the domestic level, many countries, such as the United States,
have strict prohibitions on race discrimination that cannot be evaded on the
grounds of contrary religious beliefs. Thus, while American law gives
religious institutions some exemptions from the application of anti-
discrimination legislation, these exemptions do not include permission for
religious institutions to discriminate on the basis of race.67 In Bob Jones
University v. United States,68 the Supreme Court affirmed an Internal
Revenue Service policy denying tax-exempt status to private schools with
racially-discriminatory admissions policies. The schools claimed that the
Internal Revenue Service could not revoke their tax-exempt status due to
their racially-discriminatory policies since these policies were based on
sincerely-held religious beliefs. The court rejected this claim, holding that a
limitation on the free exercise of religion can be justified where it is
essential to accomplish an overriding governmental interest. As the interest
in eradicating racial discrimination in education is a fundamental and
overriding interest, the government is justified in revoking tax exemptions
from religious institutions that discriminate on the basis of race because of
religious beliefs.69

Though the American anti-discrimination laws prohibit religious
institutions from discriminating on the basis of sex, as well as race, the
courts have in fact refused to interfere with religious autonomy where
women alleged that they were discriminated against by religious institutions

in their employment conditions because of their sex. For example, the
Fourth Circuit refused to intervene when a church declined to hire a woman
for the position of an associate pastor, holding that "state scrutiny of the
church's choice would infringe substantially on the church's free exercise of
religion and would constitute impermissible government entanglement with
church authority. ' '7 1 Similarly, the Fifth Circuit refused to intervene when a
female reverend was paid less than men holding the same position and was
later dismissed when she came back from maternity leave, holding that the
Free Exercise Clause precluded the court from considering the case even

67 Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment

Discrimination and Employment Law 626-29 (2000).
68 461 U.S. 574 (1983).

69 Id. at 603-04.

70 Cass R. Sunstein, Should Sex Equality Law Apply to Religious Institutions?, in

Is Multiculturalism Bad for Women?., supra note 8, at 85, 85-86.

71 Raybum v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1165
(4th Cir. 1985).

170 [Vol. 12:1



2003] Countenancing the Oppression of Women

though the alleged discrimination was "purely nondoctrinal. ''2 Despite the
overt discrimination against women carried out by various religious
institutions, the government denies these institutions neither tax
exemptions, nor subsidies, nor government contracts.73

C. Israel

Israel is a liberal democracy that prides itself on its alleged
adherence to the principle of equality on the bases of race, sex, and
religion. 74 The Women's Equal Rights Law sets out the principle of gender
equality in all areas of life.75 However, the law specifically states that
religious laws, which in Israel govern all matters of marriage and divorce,
will not be subject to the principle of gender equality. This provision was
needed precisely because the religious laws of marriage and divorce
blatantly discriminate against women. 6 The law further states that the
principle of equality will not apply to religious positions in religious
institutions such as rabbis and religious court judges.77

Another area in which the principle of gender equality has recently
been restricted in order to accommodate discriminatory religious and
cultural practices is that of segregation between men and women in various
public services. In the last few years, the Israeli Supreme Court has refused
to interfere with governmental policy that segregates the sexes in certain

72 Combs v. Cent. Texas Annual Conference of the United Methodist Church, 173

F.3d 343, 350 (5th Cir. 1999).

73 Becker, supra note 34, at 485-86.

74 This principle is stated in paragraph thirteen of the Israeli Declaration of
Establishment and in various laws such as the Equal Employment Opportunities Law, S.H.
38 (1988), and it is also considered a common law principle (see H.C. 98/69, Bergman v.
Minister of Finance, 23(1) P.D. 693).

75 The Women's Equal Rights Law, S.H. 248 (1951).

76 For example, according to Jewish religious law the wife has to have her

husband's consent in order to get a divorce. Without a divorce, the wife is forbidden from
remarrying, and if she has children with another man, they are considered bastards. In
contrast, if a woman refuses her husband's request for divorce, the husband can get
permission from the rabbinical court to marry a second wife, and even if he has children
from another woman without obtaining permission to remarry, his children will not be
considered bastards. The fact that Jewish women cannot start a new family without first
obtaining their husband's consent for divorce affects the entire marital relationship and
especially the divorce settlement, in which women often give up all their property rights in
exchange for their husband's consent. Francis Raday, On Equality, in Women's Status in
Israeli Law and Society 19, 45-48 (Francis Raday et al. eds., 1995) [hereinafter Raday, On
Equality].

77 This provision was added in an amendment to the law in March 2000, which
gave legal sanction to a preexisting situation. The Women's Equal Rights Law, S.H. 167
amend. 2, art. 7(3) (2000).



Columbia Journal of Gender and Law [Vol. 12:1

vocational training courses and in certain public transportation routes due to
78religious reasons. In order to legalize such discrimination, a recent law

forbidding discrimination in public services and public accommodations
contains an exception according to which segregation between men and
women in public services or accommodations will not be considered
discrimination when the absence of segregation will prevent some of the
public from using the public service or accommodation. 79 This exception
has been introduced into the law specifically to legalize segregation
between men and women in public services such as vocational training or
public transportation as an accommodation of discriminatory cultural and
religious practices. 80 The law does not allow any exception for racial
discrimination, and all discrimination on the basis of race, ethnicity, and
religion is strictly forbidden.'

IV. FAMILIAL IDEOLOGY

A. Introduction

The family is the basic unit of society. This assumption stands not
only at the base of many dominant religions, but also at the base of
liberalism and many contemporary political theories. Contemporary
theorists of justice assume the existence of the family, while further
assuming that the subject of their theories is the male head of a traditional
household.82 Women's roles inside the home as caregivers and nurturers are

'8 H.C. 7942/98, Ovadia v. Minister of Labor (Jan. 14, 1999) (regarding

segregation in vocational training) (unreported; on file with author); H.C. 5079/97, Israeli
Women's Network v. Minister of Traffic (May 5, 1999) (unreported) (discussed in Ruth
Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, UCLA J. of Int'l L. &
Foreign Aff., Fall 2000, at 339, 363-64) (regarding segregation in public transportation).
Considering prior court decisions regarding segregation between Jews and Arabs, H.C.
6698/95, Kaadan v. Israel Land Admin., 54(1) P.D. 258, it seems safe to assume that if the
cases involved segregation between Jews and Arabs, the court would have precluded such
segregation on the basis of religious beliefs.

79 Prevention of Discrimination in Products, Services, and Entrance to Public
Entertainment and Public Places Law, S.H. 58 art. 3(a)(3) (2001), available at
http://www.knesset.gov.il/laws/heb/FileD.asp?Type=1 &LawNum= 1765&SubNum-2
[hereinafter Prevention of Discrimination Law].

80 In the final hearing on the proposed legislation, some parliament members from

religious parties suggested that the exception state specifically that the segregation between
men and women is due to "reasons of religion and tradition." This proposal was rejected on
the grounds that the meaning of the exception and its purpose were patently clear even
without this addition. Proposed Legislation Prevention of Discrimination in Products,
Services and Entrance to Public Entertainment and Public Places, 15th Parliament, Session
164, (2000) (2nd and 3rd vote) (on file with author).

81 Prevention of Discrimination Law, supra note 79, at art. 3(a).

82 See, e.g., Okin, Justice supra note 19, at 9. See also Lehr, supra note 19, at 19.



2003] Countenancing the Oppression of Women 173

central not only to religious thought, but also to contemporary western
political thought.83 Familial ideology is also central to capitalism. The
family, as the realm in which one builds permanent and caring relations, is
the haven in which one escapes the marketplace, where one sells labor and
negotiates business in competitive, temporary, and contingent relations that
are buttressed by law and legal sanctions. 84 The nurturing nature of the
family, in contrast with the marketplace, generates the belief that the
impersonal force of the state should be kept out of the familial realm. 85

Finally, the family and women's reproductive role, as well as their roles as
care-givers and nurturers, are central to nationalism, which views women as
reproducers of the nation, transmitters of its culture, and symbols of the
nation.

86

Thus, it is not surprising that the allegiance forged between
religion, nationalism, and the state, in order to use women's capacities and
labor as a means of preserving the family, has made it extremely difficult
for women to break free from familial responsibilities and claim their equal
positions in society. It is perhaps even less surprising that many states,
including liberal states, are extremely reluctant to challenge religious and
cultural practices that are oppressive to women and that are perceived as
related to women's role in the family and as occurring in the sphere of the
family.

The structure of the family and its traditional gender roles have
made the family a central site of oppression for women. The construct of
the wife as the property of her husband and as a beneficiary of his
unqualified love and care still plays a significant role in many contemporary
models of the family and determines decision-making and policy-formation
worldwide. For example, economist Gary Becker's economic model of the
family, which had enormous influence on modeling and information-
gathering around the world, views the family unit as the relevant space of
comparison, and not its individual members.87 Becker's model assumes that

83 Okin, Justice supra note 19, at 8; Lehr, supra note 19, at 19.

84 Lehr, supra note 19, at 19.

'5 Id. at 20.
86 Floya Anthias & Nira Yuval-Davis, Introduction, in Woman-Nation-State 1, 7

(Nira Yuval-Davis & Floya Anthias eds., 1989) [hereinafter Woman-Nation-Statel. See also
Patricia Hill Collins, Producing the Mothers of the Nation: Race, Class and Contemporary
US Population Policies, in Women, Citizenship and Difference 118 (Nira Yuval-Davis &
Pnina Werbner eds., 1999) (discussing nationalism and women in the United States); Partha
Chaterjee, The Nationalist Resolution of the Women's Question, in Recasting Women
Essays in Colonial History 233 (Kumkum Sangari & Sudesh Vaid eds., 1989) (discussing
nationalism and women in India); Nira Yuval-Davis, National Reproduction and 'The
Demographic Race' in Israel, in Women-Nation-State, supra, at 94 (discussing nationalism
and women in Israel). See generally Women-Nation-State, supra, for a review of nationalism
and women in various other countries.

87 Nussbaum, Women and Human Development, supra note 21, at 63.



Columbia Journal of Gender and Law [Vol. 12:1

the head of the household is a beneficent altruist who will adequately
distribute resources and opportunities to the family members.88 Thus, this
model assumes that a man, who is generally the head of the household, will
always act in the best interests of his wife, neglecting the possibility that she
might have individual needs that might conflict with those of her spouse. 89

Even liberalism's most prominent contemporary theorist, John Rawls, bases
his theory of justice on the assumption that the family is a just institution.
Rawls entrusts the formulation of the principles of justice in the hands of
heads of families, under the assumption that they can fairly and adequately
represent the interests of other family members, thus preventing the latter
(usually women and children) from having any say in the matter.90

B. Familial Ideology and the Discourse of Equality and Difference

The centrality to religious thought of familial ideology and of
confining women to the roles of wives and mothers, on the one hand, and

" Id. at 63-64.

89 The centrality to a man's self-image of the role of benefactor of women, and the
way in which this role can serve as an allegedly unobjectionable excuse for sexism, have
been suggested as reasons for the different attitudes people tend to have toward racism and
sexism. In an essay entitled Sexism and Racism: Some Conceptual Differences, Laurence
Thomas argues that sexism is considered less objectionable than racism for two reasons.
Laurence Thomas, Sexism and Racism: Some Conceptual Differences, 90 Ethics 239-50
(January 1980). One reason is that "sexism, unlike racism, readily lends itself to a morally
unobjectionable description." Id. at 240. The morally unobjectionable description according
to Thomas is that sexism (the belief in women's natural inferiority and their duty to take care
of men) results in men being the benefactors of women (the ones who protect them and
provide them with the comforts of life). Thus, the result of sexism can be described as a
benign result and not a pernicious one, while the results of racism cannot be described in a
similarly benign way. The second reason Thomas points to is that "the positive self-concept
of men has been more centrally tied to their being sexists than has been the positive self-
concept of whites to their being racists." Id. Thomas argues that man's traditional role as a
benefactor of women is "one of the most deeply entrenched views of our society," and
therefore "there is no getting around the fact that the positive self-esteem of men has been
centrally tied to their being sexists." Id. at 247-48. In contrast, neither the racial identity nor
the self-esteem of whites have been centrally tied to their being racists, as the "whiteness" of
a white person was neither measured nor defined by his racism. Thus, according to Thomas,
man's traditional role as benefactor of his wife, and its centrality in his own self esteem even
today, are the main reasons why sexism is more acceptable to most people than racism.

90 Susan Moller Okin, Justice and Gender, 16 Phil. & Pub. Aff. 42, 48-49 (1987).

Rawls's theory is based on principles of justice that people in what Rawls terms "the original
position" can agree upon. The "original position" is characterized by the fact that people do
not know what their future position will be in the just society they are creating. This is meant
to ensure that those formulating the principles of justice know that they might end up
occupying less fortunate positions in the just society and thus formulate principles that
promise justice to those who are worst off. By making the individuals in the original position
heads of families, Rawls assumes that the family is just and that there is no need to consider
the well-being of the individual members of the family separately from the well-being of the
head of the family. Id.



Countenancing the Oppression of Women

the need to conform to the contemporary discourse of equality, on the other,
have generated new definitions of equality that seemingly allow for both
equality and difference. For example, since the Beijing Conference on
Women, the Vatican has vigorously advanced its position on the human
rights of women, which is based on the belief that although men and women
are human beings to the same degree, they perform different but
complementary roles in life.9' According to this position, "the 'construction
of a stable society' must recognize the inseparable link between women's
'commitments to God, family, neighbor and especially to their children'." 92

The Vatican has opposed the ideal of equal rights for women while
embracing a much more restricted ideal of equal dignity. Women and men
are considered as being of equal dignity in all areas of life without this
implying an equality of roles and functions. 93

A similar rhetoric can be found in the reservations of Islamic states
to certain CEDAW provisions. In its reservation to Article 16, regarding
women's equality in marriage and the family, Egypt states that its
compliance must be without prejudice to the Islamic Sharia laws that
govern marital relations, which cannot be questioned because their sanctity
derives from firm religious beliefs. The reservation states that what
guarantees true equality between the spouses is the complementarity
between them, which is achieved by according women rights that are
equivalent to those of their husbands and that ensure a just balance between
the spouses.9 4 A similarly misleading use of equality was made by certain
Islamic countries in the Beijing conference when they argued for granting
women and girls "equitable"-meaning different-succession and
inheritance rights to those of men.95

Familial ideology coupled with a version of equality, which the
Hindu Right in India terms "harmony in diversity," defines the Hindu
Right's approach towards women's rights.9 6 Women's roles in the family as
wives and mothers are the cornerstone of this approach, and they underlie
the understanding of women's equality. Women and men are equal, but
they are not the same. "They are like the two wheels of the chariot of the

91 Doris E. Buss, Robes, Relics and Rights: The Vatican and the Beijing
Conference on Women, 7(3) Soc. & Legal Stud. 339, 345 (1998).

92 Id. at 346 (quoting Professor Mary Ann Glendon, the head of the Vatican
delegation to the Beijing Conference).

93 Id. at 347.

94 Michele Brandt & Jeffrey A. Kaplan, The Tension Between Women's Rights
and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia, 12 J.L. &
Religion 105, 120 (1995-96).

95 Buss, supra note 91, at 347.
96 Ratna Kapur & Brenda Cossman, Subversive Sites: Feminist Engagements with

Law in India 274 (1996).

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family," and it is their diversity that creates harmony. 97 As a prominent
leader of the Hindu Right, who today serves as India's prime minister, has
said, "women who want to become men and want to make other women
[like] men are worthy of ridicule." 98 The double standard embedded in the
equality through difference approach becomes clear in light of a
"fundamental tenet of Hindu religious doctrine, which requires that 'during
childhood, the woman is under the control of her father; during her youth
she is under the control of her husband; in old age she is under the control
of her son; a woman is never fit for independence." 99

As in other religions, the "natural" differences between men and
women are central to Orthodox Judaism's attitude toward women.100

Although women are allegedly equal to men, they are nevertheless different
because it is women's vocation to give birth and raise children. Women and
men are complements to one another and have different religious duties and
different roles in life.' 0' The falsity of the equality through difference
construct in Judaism is perhaps best reflected in the daily morning prayer of
Orthodox Jews, in which the Orthodox Jewish man thanks God for not
having made him a woman, while the Orthodox Jewish woman thanks God
for having made her according to his will.'0 2

As a result of a similarity of interests of religions, states, and
national ideologies, the discourse of compatibility and of a qualified
equality which is based on difference, stemming first and foremost from
familial ideology and from women's preordained roles as wives and
mothers, remains largely unchallenged. 0 3 Though such discourse was

97 Id. at 246-47.

98 Id. at 246 (quoting the statement of Atal Bihari Vajpayee, the current prime
minister of India. Vajpayee has been serving as the prime minister of India since 1996 and,
as of 2002, is in his third consecutive term in office).

99 Kirsten K. Davis, Equal Protection for Women in India and Canada: An
Examination and Comparison of Sex Equality Provisions in the Indian and Canadian
Constitutions, 13 Ariz. J. Int'l & Comp. L. 31, 33 (1996) (quoting Manju Kumar, Social
Equality: The Constitutional Experiment in India 110 (1982)).

100 Nira Yuval-Davis, The Personal is Political: Jewish Fundamentalism and

Women's Empowerment, in Religious Fundamentalisms and the Human Rights of Women
33, 38 (Courtney W. Howland ed., 1999) [hereinafter Religious Fundamentalisms].

'1' See, e.g., Ellen M. Umansky, Feminism in Judaism, in Feminism and World

Religions 179, 191-92 (Arvind Sharma & Katherine K. Young eds., 1999); Niza Yanay &
Tamar Rapoport, Ritual Impurity and Religious Discourse on Women and Nationality, 20
Women's Stud. Int'l F. 651, 661 (1997); Tamar El-Or, Next Pessach: Literacy and Identity
of Young Religious Zionist Women 183-215 (1998).

102 Yuval-Davis, The Personal is Political: Jewish Fundamentalism and Women's

Empowerment, supra note 100, at 38.
103 In many cases, the mainstream non-religious discourse of equality in itself

stems from women's roles as wives and mothers and is motivated by their difference. For
example, the parliamentary discussions of the Israeli parliament, the Knesset, regarding the

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regarded as legitimate in the past with regard to racial, ethnic, or religious
minorities, as it was with race in the United States and South Africa, and
caste in India, such a discourse is no longer legitimate today, and rightfully
so. 0 4 What is striking is how legitimate and normative this discourse is
when applied to women.

C. Selflessness and Self-Sacrifice--The Angel in the House

1. Christianity

An inseparable part of familial ideology, which serves as a tool for
control over women and as a means of organizing society, and which
Virginia Woolf terms "the Angel in the House," is the ideology of
selflessness and self-sacrifice.10 5 Most, if not all, religions emphasize
selflessness and self-sacrifice as noble virtues. This emphasis, which is
directed mainly toward women, is also particularly appealing because many
women tend to define themselves and their worth mostly in relation to their
ability to care for and protect others, and to define "goodness" as meeting
one's obligations and responsibilities to others.10 6

Christianity, through the crucifixion of Jesus, praises self-sacrifice
as the primary virtue and valorizes suffering.'0 7 Thus, Christian women can
find in their faith a justification for the sacrifices they make for others, such

enactment of the Women's Equal Rights Law that granted equal rights to women, revolved
around women's right to equality as mothers and wives. See Nitza Berkovitch, Motherhood
as a National Mission: The Construction of Womanhood in the Legal Discourse in Israel, 20
Women's Stud. Int'l F. 605, 611-12 (1997). As one commentator put it, parliament members
believe that "women should be given equality, treated well, and protected through legislation
because women are mothers and mothers are wonderful." Susan Sered, What Makes Women
Sick?: Maternity, Modesty, and Militarism in Israeli Society 22 (2000).

o4 This is not to say that one cannot find avid supporters of such theories, but it is
beyond question that they will not gain the legitimacy and the respectability that these
theories have as pertaining to women.

105 Virginia Woolf, Women and Writing 59 (Michele Barrett ed., 1979)

[hereinafter Woolf, Women and Writing]. "You who come of a younger and happier
generation may not have heard of her-you may not know what I mean by the Angel in the
House. I will describe her as shortly as I can. She was intensely sympathetic. She was
immensely charming. She was utterly unselfish. She excelled in the difficult arts of family
life. She sacrificed herself daily. If there was chicken, she took the leg; if there was a draught
she sat in it-in short she was so constituted that she never had a mind or a wish of her own,
but preferred to sympathize always with the minds and wishes of others. Above all-I need
not say it-she was pure. Her purity was supposed to be her chief beauty-her blushes, her
great grace. In those days-the last of Queen Victoria-every house had its Angel." Id. at
58-59.

106 Carol Gilligan, In a Different Voice 66, 79 (2d ed. 1993). See also Jean Baker

Miller, Toward a New Psychology of Women 50 (1976).
107 Becker, supra note 34, at 472.



Columbia Journal of Gender and Law

as sacrificing their own self-realization in order to take care of their
families, as well as a justification for the suffering that they feel as a result
of such sacrifices. ° 8 It is religious women's faith that directs them to make
these sacrifices and endure the suffering that they entail. Christian religions
present as ideal the traditional images of women as caretakers, nurturers,
and servants of others. Empirical evidence indicates that Christian church
attendance is generally more strongly correlated with anti-feminist beliefs
such as opposition to abortion, equal rights for women, and affirmative
action for women, than are education, income, occupational status, class,
age, residence, and most other social traits.'0 9 This creates a paradox of self-
abnegation within religious women-the more religious the woman is, the
more subordinate her position is and the bigger her sacrifice and suffering
are, but at the same time the stronger her conviction is that she is leading
the ideal life and that she is fulfilling her true calling. In order to affirm
herself as a "person," a human being worthy of God's love, the woman has
to negate herself as a "person," a human being with personal needs and
wants, who is entitled to see her needs and wants as central and not as
always and forever subordinate to those of others.

2. Judaism-Ultra-Orthodox Jews

A similar pattern of self-abnegation can also be found in Judaism.
The typical ultra-Orthodox'10 woman in Israel is expected to give birth to
and raise many children, take care of the home, take care of her husband
who pursues Talmudic studies all day, and work outside the home as the
major breadwinner since her husband does not work."' In spite of the fact
that these women have a far broader secular education than their husbands,
and support them financially, they still remain totally subordinate to their
husbands and to the needs of their families and communities. They accept
their subordinate role as divinely ordained. Such acceptance is explained

1o8 Id.

109 Id. at 474. Research shows that across Christian denominations church

attendance is strongly correlated to opposition to both the Equal Rights Amendment and
abortion. See also Kathleen A. McDonald, Battered Wives, Religion, & Law: An
Interdisciplinary Approach, 2 Yale J.L. & Feminism 251, 262-63 (1990) ("Religious
devoutness is the most important variable in consistently predicting attitudes about familial
roles, extra-familial roles, male/female stereotypes, social change, and gender role
preference.").

10 Ultra-Orthodox Judaism is a fundamentalist religious movement. The ultra-

Orthodox Jewish community in Israel is a closed community that constitutes approximately
six percent of the Israeli population and leads a very religious and mostly secluded way of
life. Tamar El-Or, Visibillity and Possibilities: Ultraorthodox Jewish Women Between the
Domestic and Public Spheres, 20 Women's Stud. Int'l F. 665,666 (1997).

11' The ultra-Orthodox women take on low-paying female-dominated jobs,
working as teachers, seamstresses, typists, and babysitters. Id. at 666-67.

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both by the indoctrination these women experience growing up in the ultra-
Orthodox society and by their fear that rebelling against the norm might
seriously harm their status and, even more importantly, the status of their
children. 1 12 In this context of selflessness and self-sacrifice, it is important
to note that in the ultra-Orthodox community it is the ultra-Orthodox men
who are considered to be performing the noblest self-sacrifice, since
devoting one's life to Talmudic studies is considered the highest virtue
(accorded only to men).' 13 Thus, the demand of self-sacrifice is directed at
men as well as women, but in very different ways. Many an observer would
question the hardship inherent in devoting one's time to studying Talmudic
studies as opposed to taking care of eight children, a husband and a home,
and working outside the home to support the family, while at the same time
being completely subordinate to your husband's will. It is telling that in a
society which values self-sacrifice above all else, women, who are expected
to sacrifice more than anyone, do not even get due recognition for their
sacrifice.

3. Hinduism-Oriya Hindus

Another example of the ideal of women's self-sacrifice and
suffering, as well as the paradox of self-abnegation, can be found in the
customs of the upper-caste Oriya Hindus as they are described by
anthropologist Usha Menon.i 14 The moral order advanced by the Hindu
religion is one that cherishes self-control, self-refinement, and duty to the
family. Most Hindus, both men and women, would find the Western
emphasis on the primacy of the individual immoral and futile because they
believe that the self does not exist apart from its connections with others." 15

Hindus do not think of the person as indivisible and bounded, but as

112 Menahem Friedman, The Honor of the King's Daughter is Outside, in Blessed

Are You God for Having Made Me a Woman?: Women in Judaism from the Tanach to
Today 189, 205 (David Yoel Ariel et al. eds., 1999). The fear that these women have about
the status of their children stems from the fact that in the ultra-Orthodox society, all
marriages occur via matching a son's or daughter's prospects, and a good match is ruined by
his or her parents' divorce. Another reason Friedman gives as to why ultra-Orthodox women
are reluctant to rebel is that they do not feel that the society outside the ultra-Orthodox
community offers them anything better than what they have in their community. Thus, they
prefer to stick with a known evil and not to take chances with an unknown one.

"' Id. at 200.
114 The following account of Hindu moral order and Oriya Hindu family practices

is taken from Usha Menon, Does Feminism Have Universal Relevance? The Challenges
Posed by Oriva Hindu Family Practices, Daedalus, Fall 2000, at 77. It is important to point
out that I use Menon's account for a purpose opposite to hers. Menon's purpose in this
article is to criticize feminism and to show that women can lead fulfilling lives in what
feminists regard as a highly discriminatory and oppressive system.

"1 Id. at 78-79.

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divisible, "continually changing and being reconstituted by the givings and
receivings he or she engages in."'1 16 Hindus transform themselves through
daily practices and rituals of refinement. Women are especially permeable
because they menstruate and reproduce, and as a result they are required to
be more concerned than men about their connections with others, their daily
practices, and their rituals of refinement. To regulate their exchanges with
others, Oriya Hindu women must seclude themselves within family
compounds, have virtually no contact with strangers, and meticulously
observe prescribed daily practices."17

Oriya Hindu women are usually literate in the local language, but

not necessarily schooled. They have arranged marriages, spend their entire
life within the compounds of their natal and conjugal extended households,
and have only minimal contact with the outside world. 1 8 Both Oriya men
and women regard the domestic sphere as the most important sphere of
human action.11 9 The senior women within an extended household control
and manage all household affairs, including the household finances and
expenses. Thus, according to Menon, it would not be correct to cast men as

oppressors and women as victims, but rather to speak of the more senior
family members controlling the activities of the more junior.' 20 Unlike men,
Oriya Hindu women do not inherit property. 121

Married women are believed to embody the family's fund of
auspiciousness and its future. If the woman is irresponsible in the
management of the family resources or is promiscuous, then the family will
be ruined. Oriya Hindus insist that the control over greed and lust must
come from within. This can only be achieved through the surrender of one's
sense of self and service to others. These are the two basic duties of married
women. Thus, in order to enable them to achieve self-control, married
women are expected to cook, serve food, fast, eat last, eat leftovers, and

116/d. at 81.

117 id.

118 According to Menon, the women do not even desire to move about freely or

interact with other people. Shunning contact with the outside world and maintaining
exclusivity is a sign of superiority for Oriya Hindu women. Id. at 88.

119 Id. at 85. Marriage is the most important ritual of refinement for Hindus
everywhere. Once married, Oriya women wear distinct clothes and jewelry that are believed
to protect their husbands' health and long lives. Oriya women believe that they are the
custodians of the lives and well-beings of their husbands and families. Menon states that she
does not know of any Oriya Hindu woman in the town in which she conducted her research,
no matter how unhappily married, who deliberately removed her special clothing and
jewelry, an action that in indigenous thinking is tantamount to murder. Id. at 86.

120 Id. at 88. Menon concedes that senior men are accorded deference, but she sees

it as being only formal deference. The real power struggle in the house, according to her, is
between the various women. Id. at 91.

121 Id. at 94.

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selflessly take care of the physical as well as the emotional needs of the
members of the extended family. 122

According to Menon, though junior women find the first years in
the conjugal home-to which they are obliged to move after their arranged
marriage--difficult, they ascribe their difficulties to their own failure to
open themselves completely in order to assimilate and be remade into the
substance of their conjugal family. Further, all women understand that even
the most junior women can start acquiring power to make decisions for
themselves and later for the family by building relationships and exerting
influence through cooking, serving, and taking care of others.' 23 Junior
women do not complain about their situation, both because they know that
such complaints would be futile and would jeopardize their efforts to gain
more power and position by assimilating into the family, and because they
know that someday they will occupy the positions of power as senior
women in the family.'

24

Menon concludes that the Oriya Hindu women lead "fairly
fulfilling, contented lives" for several reasons.12 5 First, their identification
with the Goddess Devi, who embodies the energy and power of the
universe, is a source of substantial self-worth. Second, Oriya Hindu women
are universally regarded as being central to the material and spiritual
welfare of their families. 26 Third, within a few years of marriage, they

122 Id. at 86-87. In addition, the most important quality in a woman is chastity. The

woman is responsible for her own chastity and needs to discipline herself to be chaste for the
continuing welfare of her husband and family.

123 Id. at 90. "Through every act of cooking, serving, and feeding, she is giving of

herself to others within the family, making herself a vital channel within the family body,
and bringing others within the ambit of her influence." Id.

124 Id. at 92. As the younger brothers in a family marry, the wives of the older

brothers gain more power. When the most senior woman of the household is widowed, she
loses all her power and is "relegated severely to the background, expected to contribute
nothing to the household and expecting little in return." Id. at 93.

125 Id. at 94-95.

126 Making women's behavior the determiner of the family's happiness and well-

being is a practice that is prevalent in other religions, as well. For example, in Judaism the
welfare and happiness of the family depend on the woman's strict obedience to the rules of
ritual purity (niddah). Zionist Orthodox Judaism in Israel makes women responsible not only
for their families' well-being, but also for the survival of the Jewish people and the state of
Israel itself, through strict adherence to the rules of niddah. Yanay and Rapoport, supra note
101, at 659. However, as Yanay and Rapoport point out, far from empowering women, this
responsibility only serves as a further tool of their domination and subordination. While
women carry all the responsibility for the well-being of the family and nation on their
shoulders, the rules on how this responsibility should be met are set exclusively by men, and
the rules are intentionally complicated and vague at the same time, directing women to
consult their male rabbis on almost every move that they make. Id. at 657-59. It is quite
puzzling that Menon identifies a similar situation (allocation of high responsibility with no
authority) as a reason for contentment.

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identify themselves completely with the conjugal family and their sense of
self emerges from their involvement with it.'2 1

This account of the lives of Oriya Hindu women demonstrates
beautifully how religion and culture make a selective use of the ideals of
selflessness and self-sacrifice in order to subjugate women, while at the
same time persuading them that they are leading good and fulfilling lives.
Such an account also explains why Oriya Hindu men are convinced that
they are not subjugating the women. First, like the women, the men are
brought up to believe that the functions women fulfill and their highly-
restricted existence reflect their special powers and not their weakness. 28

Second, the enormous benefits men get from living in a moral order of this
kind are bound to quench any doubts about its legitimacy that they might
entertain. Third, as the moral order under which the group exists is so all-
encompassing, as well as uncompromising, that individual men do not feel
they have any say in its shaping. Feeling they are as bound by the moral
order as the women are and that they are prevented from changing it, men
do not feel any responsibility and therefore no guilt for its continuing
existence.

A very disturbing aspect in Menon's description of the Oriya Hindu
family practices is the empathetic manner in which she describes these
deeply subjugating practices, devoid of any form of criticism. 29 By
neglecting to ask what happens to a woman who does not want to abide by
the unbelievably strict rules that apply to her and that literally leave her no
choice in any major life decision, Menon manages to describe a world in
which all women are content, regardless of how difficult their lives are.
Further, Menon neglects to mention what restrictions this elaborate moral
order, that has such an exceedingly restricting (not to say debilitating) effect
on women's lives, puts on the lives of Oriya Hindu men, except to say that
young Hindu men also "live with certain constraints.' 30 Thus, the reader
might be left with the distinct impression that there is nothing wrong with
the Oriya Hindu moral order, and that it is just a different way of life in
which consenting adults freely choose to live in equality and harmony.

127 Oriya Hindus believe that women are being reborn into the conjugal family

through marriage. Menon, supra note 114, at 83.
128 This is reminiscent of the notion of "the pedestal" in Western culture.

129 The only criticisms Menon offers in this article are of feminism and feminist

activists. Menon, supra note 114, at 77-80, 96-97.
130 Id. at 88. Menon concedes that these constraints are much different from those

placed on women.

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4. Should a Social Order Exalting Women's Self-Abnegation Be
Condoned or Condemned?

The reason I dwell on Menon's presentation of the Oriya Hindu
family practices is that her attitude toward this highly discriminatory and
subjugating system is typical of the reaction of third parties to encounters
with religious and cultural practices that discriminate against women and
subjugate them. This reaction consists of an adamant refusal to criticize, a
fervent adherence to the group's right to free exercise of religion and of
culture, and an assumption that if it can be shown that some women in the
group are content, then no real issue of discrimination remains. Such a
reaction is in striking contrast to most reactions one would get if one were
giving a similar account in which the actors were not men and women, but
people from two different races or ethnicities, or in the Indian context, two
castes.

Imagine a group consisting of two races in which members of race
X are confined to the houses chosen for them by others for most of their
lives. They are often not schooled, and are not allowed to go out to work,
earn money, or inherit. They are expected to cook, serve food, fast, eat last,
eat leftovers, and selflessly take care of the physical as well as emotional
needs of the members of race Y. They have virtually no way out of this
arrangement. Members of race Y, on the other hand, inherit all the property,
and are free to go wherever they choose and do whatever they choose. They
are free to work and earn money (some of which they are expected to give
race X for house expenses), and when they go home, they are treated with
special deference. They are fed with the best food, and race X takes care of
all their emotional and physical needs. The two races share a system of
belief that stipulates this arrangement, stating that a person's race is the sole
determinant of his proper role in life and exalting the role of race X for its
selflessness and service to others. Members of race Y are the sole creators
and interpreters of this system of belief.

It is highly likely that such an account would enrage most of the
outsiders to this group and that they would condemn race Y as racist and its
religion as a travesty. They would find it disturbing that many people from
race X adhere to a system of belief that subjugates them so much, but would
probably conclude that this is not a sufficient motive to let things stand as
they are. Buttressed by their strong belief that racial discrimination is
morally condemnable, socially unjust and dangerous, without justification
in theory or in practice, and repugnant to the ideals of any human society,13 1

they would call for immediate intervention.
While in the past religion was used as a prevalent justification for

racism, this is no longer the case. For example, research shows that while an
increase in Christian commitment indicates an increase in sexist attitudes, it

131 See preamble to the Race Convention, supra note 6, at 212-16.

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does not indicate an increase in racist attitudes. Though moderately active
Christians are on average more racist than those who do not attend church
at all, the most committed church members are as tolerant of racial
minorities as non-members, while at the same time are the most sexist. 32

Thus, by changing their teachings, Christian churches that not so long ago
decreed that it is God's will for the white race to rule over the black race,
have succeeded in significantly changing their members' attitudes toward
racial minorities. At the same time, churches purposefully choose to
maintain their sexist teachings entrapping devout women in a paradox of
self-abnegation and perpetuating male dominance. This paradox of what
seems a free choice of self-abnegation, as well as the unquestioning
acceptance by society of female self-abnegation, might lie at the crux of the
difficulty in fighting sex discrimination in general, and religious and
cultural norms that perpetuate sex discrimination in particular.

V. FREE CHOICE

A. Individuals as Collaborators in Their Own Oppression

It is quite obvious that the fact that an oppressed person is highly
susceptible to becoming a collaborator in his own oppression cannot serve
to justify the oppression. While this simple truth is often recognized with
regard to oppression on the basis of race, ethnicity, or religion, it is seldom
recognized with regard to the oppression of women.

The process through which a slave becomes a collaborator in his
own slavery is clearly described in a quote from the autobiography of
Jawaharlal Nehru, former prime minister of India:

For many generations the British treated India as a kind of
enormous country-house (after the old English fashion) that they
owned. They were the gentry owning the house and occupying
the desirable parts of it, while the Indians were consigned to the
servants' hall and pantry and kitchen .... The fact that the British
Government should have imposed this arrangement upon us was
not surprising; but what does seem surprising is that we, or most
of us, accepted it as the natural and inevitable ordering of our
lives and destiny. We developed the mentality of a good country-
house servant. Sometimes we were treated to a rare honour-we
were given a cup of tea in the drawing-room. The height of our
ambition was to become respectable and to be promoted
individually to the upper regions. Greater than any victory of
arms or diplomacy was this psychological triumph of the British

132 Becker, supra note 34, at 477.

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in India. The slave began to think as a slave, as the wise men of
old had said. 133

The process that Nehru describes in the context of British rule over India
goes much deeper in the context of women's subjugation. Unlike Indians
who had nothing in common with their British rulers, women share
everything with their oppressors, including the oppressors' culture, religion,
language, living space, children, family, and community. 134 This does not
make women's oppression less pernicious and should not be understood by
outsiders as justifying non-intervention and non-condemnation. Indeed,
quite the opposite is true.

Furthermore, the ideology of selflessness and self-sacrifice, which
is a primary tool in the subjugation of women, is an especially effective way
of preventing dissidence as it instills in a woman an almost instinctive
negation of her own wants and needs, and a complete obedience to a higher
authority-the man. As Virginia Woolf eloquently put it when describing
her struggles to become a woman writer at the beginning of the twentieth
century, in order to be able to sit down and write even one line, she first had
to engage in a long and bitter struggle against her personal "Angel in the
House," who was lurking inside her, preventing her from having and
expressing a mind of her own, from questioning and critiquing:

Had I not killed her she would have killed me. She would have
plucked the heart out of my writing .... She died hard. Her
fictitious nature was of great assistance to her. It is far harder to
kill a phantom than a reality. She was always creeping back when
I thought I had despatched her.... Killing the Angel in the House
was part of the occupation of a woman writer.' 35

Considering how hard it is for a strong-willed, free-minded woman like
Virginia Woolf to "kill the Angel in the House," it is hardly surprising that
the average religious and traditional woman often finds it impossible to
struggle against the paradox of self-abnegation into which both her religion
and her culture, two of the most powerful forces in her life, have thrown
her. Many religious communities often practice very traditional cultures,

133 Jawaharlal Nehru, An Autobiography 417 (Bodley Head 1989) (1936) (quoted
in Nussbaum, Women & Human Development. supra note 21, at 150).

134 As one commentator argues, "Sex colonization is insidious. Not only are

women dominated as a group-socially, politically and economically-but unlike any other
colonized group, they must share the homes and beds of their colonizers." Kathlyn Barry,
Female Sexual Slavery 165 (1979) (quoted in Geraldine Moane, Gender and Colonialism: A
Psychological Analysis of Oppression and Liberation 23 (1999)).

135 Woolf, Women and Writing, supra note 105, at 59-60.

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which are in themselves blatantly discriminatory on the basis of sex. 136 Such
cultures are generally very cohesive and demand absolute conformity from
their members. 37 They place a very high intrinsic value on conformity and
thus create in women (as well as in men) a deep moral need to obey their
sexist dictates. This need is particularly overwhelming since it is
accompanied by the corresponding religious need to obey a sexist religion.

B. The Individual Will and Traditional Cohesive Communities

In order to understand the extraordinary force that a cohesive
traditional community can have on its members, one which can prevent
them from showing or even conceptualizing any resistance, it is worthwhile
to reflect on the way the sociologist Emile Durkheim analyzes the forms of
solidarity in society, and to apply this analysis to the situation of women in
cohesive traditional communities. Durkheim identifies two forms of
solidarity in societies, which he terms mechanical and organic solidarity.
Both types of solidarity are present everywhere, but while mechanical
solidarity is more dominant in communities that are extremely cohesive and
traditional, organic solidarity becomes more dominant as a group advances
and transforms into what we know as modem society. Since the
communities discussed here are dominated by mechanical solidarity, I will
concentrate on Durkheim's analysis of this type.'38

Durkheim suggests that in cohesive traditional communities in
which mechanical solidarity is dominant, the ideas and tendencies common
to all members of the society are greater in number and intensity than those
that pertain personally to each member. Thus, most of the ideas and
tendencies of a member of a cohesive traditional society are ideas and
tendencies that are common to all other members, and not his or her own
individual ideas and tendencies. According to Durkheim, mechanical
solidarity can grow only in inverse ratio to the members' individual
personalities. As a result, in order to maintain mechanical solidarity (a
cohesive, closely-knit, traditional society), it is vital that the group's
members have as little leeway as possible to develop individual
personalities.

Durkheim posits that in each person there are two consciences. One
is common to the group in its entirety and is not really the self, but society
living and acting within the self. The other represents what is truly personal
and distinct in the self and makes each person an individual. In a society

136 On the connection between traditional cultures and the oppression of women,
see Okin, Bad for Women, supra note 8, especially 12-16.

137 See, for example, cultures discussed in this article such as the ultra-Orthodox
Jews, infra Parts IV.C.2, VI, and VII, and the Oriya Hindus, infra Part IV.C.3.

38 The following analysis is taken from Emile Durkheim, The Division of Labor
in Society 129-31 (Free Press 1st ed. 1964) (1933).

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characterized by mechanical solidarity, the conscience that is common to
the group is dominant in almost all aspects of life, and especially in those
aspects that are most important to the group. The individual conscience
dominates only in the very few aspects of life that are less important to the
group and in which the group allows for individuality. When mechanical
solidarity is at its strongest, the collective conscience envelops each
individual conscience and completely coincides with it. At that moment, the
individuality of each person is nil. Durkheim describes the individual
conscience and the collective conscience as two contrary forces. The
moment that mechanical solidarity exercises its force, the individual
personality vanishes-for a person is no longer herself, but the collective
life. In extremely cohesive and traditional societies where mechanical
solidarity is highly developed, the individual never appears; individuality is
something that the society completely envelops.

Durkheim's analysis of society can lead us to a better understanding
of what is typically perceived as women's willing cooperation with their
own subjugation, especially where this cooperation takes place in cohesive,
closely-knit traditional societies. Incidentally or not, the more oppressive a
society is to its women, the more it coincides with Durkheim's description
of a society in which mechanical solidarity is most dominant. Thus, the
dominant conscience of women, as well as men, in these societies is the one
which is common to the group in its entirety and which is not really the self,
but society living and acting within the self. The common conscience of the
group holds strong beliefs about women's proper role in the group, as can
be seen in all the examples described above, including Christian extremists,
ultra-Orthodox Jews, and Oriya Hindus. The women of the group, their
consciences dominated by the group conscience, are likely to hold similar
beliefs, no matter how damaging they might be to themselves. Further,
since the control over women is of unusually high importance to such
groups, 139 women's issues will be the issues in which the group will exert
its common conscience to the maximum, enveloping each individual
conscience and completely coinciding with it. 140 Consequently, it will be
virtually impossible for most women in these societies to show any

139 It has been recently noted by various thinkers that fears about autonomy for

women are a major focus of attention in all fundamentalist groups. See John Stratton
Hawley, Fundamentalism, in Religious Fundamentalisms and the Human Rights of Women,
supra note 100, at 3, 4.

140 While men in such groups are also fairly restricted in their actions, they are

much less restricted since the group does not place such high importance on controlling these
actions. Interestingly, this relative freedom allows men to use their individual consciences in
those spheres relevant to them, and reach independent conclusions that can enable them to
fight for even more freedom. Thus, the effectiveness of the control over women depends on
its totality.

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opposition, or indeed even to think about opposing the group in any manner
on the matters most crucial to their lives.14

1

While Nehru's description of the British rule over India illustrates
that racial, ethnic, and religious groups also find it difficult to form the
consciousness needed in order to object to oppression and struggle against
it, the analysis above can explain why women most often find it difficult to
object to their oppression. While women share a culture, a religion, and a
collective conscience with their oppressors, different racial and ethnic
groups usually practice different religions, come from different cultures,
and have distinct, often contradictory, collective consciences. Conquerors
throughout history have attempted to convert their subjects to their own
religions in order, among other things, to be able to control them better
through religious influence, but this has not always been successful.
Furthermore, even where it has been successful, the subjugated groups still
had their own cultures in which to develop their resistance to subjugation,
and their own collective consciences to sustain them and to strengthen their
defiance. Oppressed racial, ethnic, and religious groups are usually not a
wholly integral part of the cohesive traditional society that oppresses them.
Such groups most often come from a different society and are not in a
position to lose their own conscience and be enveloped by the conscience of
the oppressing society. This is not to imply that racial and ethnic oppression
is a lesser problem or that it is not highly difficult for oppressed racial,
ethnic, and religious minorities to free themselves from oppression. This
analysis, however, suggests why we find that in many cases of women's
oppression a large number of the women identify deeply with the
oppressing system, while we do not often find a similar depth and breadth
of identification in racial, religious, and ethnic oppression.1 42

C. Lack of Options

It should be stressed that the aforementioned sociological and
psychological phenomena are not the only factors affecting women's free

141 Applying Durkheim's analysis to the rise of feminist movements, it is not
surprising that it coincided in time and place with the move from mechanical solidarity to
organic solidarity. Only after women acquired relative freedom to use their individual
consciences were they able to object to their own subjugation.

142 Though Nehru's observations (see note 133 and accompanying text) suggest

that Indians have experienced a similar phenomenon of identification with their oppressors, I
would argue that the phenomenon Nehru describes is qualitatively different from the
phenomenon experienced by women in oppressing groups. It seems to me that women's
identification with their oppression in cohesive traditional societies is much deeper. While
most Indians probably knew they were being used by the British but thought that it was futile
to fight for unattainable freedom, most women in religious traditional societies genuinely
believe that their circumstances are exactly as they should be and that it is a mortal sin to try
to change them.

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choice. Another crucial factor is the set of options from which a person may
choose. Thus, if a woman in a Muslim society chooses to wear the veil
since it is the easiest way to avoid sexual harassment in the public sphere, 143

this should by no means be considered a free choice that exempts society
from the responsibility to ensure that a woman can venture into the public
sphere unveiled without being harassed. Similarly, when a woman in the
U.S. chooses not to go out alone after dark for fear of being assaulted, the
fact that it is her choice to stay indoors should not obscure society's duty to
ensure that women can go out at night without fearing for their well-being.

The oppression of women and the curtailment of their rights
through a deliberate or semi-deliberate lack of appropriate options occur in
all societies, and the argument of free choice should in most cases be
examined with extreme caution. This caution should be doubled given the
sociological and psychological phenomena discussed above, which could
make even physically available options emotionally unavailable to many
women. When third parties consider societies in which the oppression of
women is taking place, they should not be so quick to adopt the easy
explanation, namely that this oppression is consensual. Just as it is highly
unlikely that oppression on ethnic, racial, and religious grounds is
consensual, it is highly unlikely that in most cases oppression on the basis
of sex is freely consented to in a true sense, and the appearance of free
consent is achieved through sociological and psychological influences as
well as through a lack of more egalitarian options. The more cohesive,
religious, traditional, and closely-knit the society is, the less credence
should be given to the free choice argument and the more closely the
possibilities for genuine free choice should be examined.

VI. WOMEN AS A GROUP, BUT NOT A COMMUNITY

A. Groups and Communities

Each individual in society belongs to some social group or other.
Social groups are collections of persons who share something that is
socially significant. 144 While some social groups are voluntary and their
members share joint commitments and joint projects, other social groups,
such as those defined by race or gender, are not voluntary and their
members share social constraints as a result of their membership in the

'43 Lama Abu-Odeh, Post Colonial Feminism and the Veil: Considering the
Differences, 26 New Eng. L. Rev. 1527, 1530 (1992) (discussing both the empowering and
the disempowering aspects of wearing a veil, Abu-Odeh describes the wearing of a veil in
order to avoid sexual harassment as an empowering experience for women).

'4 "Ann E. Cudd, Nonvoluntary Social Groups, in Groups and Group Rights 58, 60
(Christine Sistare et al. eds., 2001).

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group.1 45 By developing awareness of the membership in an involuntary
group and by creating solidarity, common ideals, and common projects, an
involuntary group can become a voluntary social group. 146 Marxist theory
makes a similar distinction between the concept of a class in itself (one that
exists according to objective criteria), and a class for itself (one with a self-
conscious collective identity, able to act on its own behalf). 147

All women are members of an involuntary social group based on
gender and many of them perceive this as a voluntary social group that
shares an identity, common ideals, and common projects. Nonetheless, most
women do not feel that the social group based on gender is a community,
and many of them question the communality of women's needs and ideals.
A recurring criticism against feminists, as well as within feminist theory, is
that the feminist project tends to essentialize women and not account for
historical and social differences between women of different cultures, races,
religions, etc., which are of crucial importance in determining their
experiences, their needs, and their aspirations. 148 Thus, women's affiliations
with various racial, ethnic, religious, and national communities exclude the
possibility of women being a community in and of themselves.

Racial, ethnic, and religious groups are almost always considered to
be communities. W.E.B. Du Bois defines race as "a vast family of human
beings, generally of common blood and language, always of common
history, traditions and impulses, who are both voluntarily and involuntarily
striving together for the accomplishment of certain more or less vividly
conceived ideals of life. ' 149 Though this definition is controversial, it points
to various characteristics that are common to communities such as shared
language, history, traditions, and aspirations, and which are lacking from
the social group of women. 5 ° Further, in addition to the fact that women as

145 id.
146 Id. at 64.

147 Sara Evans, Personal Politics: The Roots of Women's Liberation in the Civil
Rights Movement and the New Left 218 (1979).

148 See, e.g., Charlesworth & Chinkin, supra note 7, at 52-53; Angela P. Harris,

Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 588 (1990); Vasuki
Nesiah, Toward a Feminist Internationality: A Critique of U.S. Feminist Legal Scholarship,
16 Harv. Women's L.J. 189, 199-200 (1993); Chandra Talpade Mohanty, Under Western
Eves Feminist Scholarship and Colonial Discourses, in Third World Women and the Politics
of Feminism 51, 55-56 (Chandra Talpade Mohanty et al. eds., 1991).

149 W.E.B. Du Bois, The Conservation of Races, in W.E.B. Du Bois: A Reader 20,

21 (David Levering Lewis ed., 1995).

150 Another definition of communalism sees religion as the center of the

community and projects the belief that "because a group of people follow a particular
religion, they have as a result, common social, political and economic interests." Bipan
Chandra, Communalism in Modem India 1 (1984) (quoted in Amrita Chhachhi, Forced
Identities: the State, Communalism, Fundamentalism and Women in India, in Women, Islam
and the State 144, 144 (Deniz Kandiyoti ed., 1991)).

190 [Vol. 12:1



Countenancing the Oppression of Women

a whole do not form a community, even distinct groups of women, who all
belong to a common racial, ethnic, or religious community, tend to see
themselves first and foremost as part of that racial, ethnic, or religious
community and only then as part of the group of women, if at all. This is
especially true for women who are part of minority communities. As bell
hooks beautifully stated with regard to black women in the United States:

Contemporary black women could not join together to fight for
women's rights because we did not see "womanhood" as an
important aspect of our identity. Racist, sexist socialization had
conditioned us to devalue our femaleness and to regard race as the
only relevant label of identification. In other words, we were
asked to deny a part of ourselves-and we did."1

The fact that women are a group, but not a community, has several
implications for the way in which oppression against women due to
religious and cultural norms is practiced and maintained, and for the way in
which it is perceived and dealt with by the oppressed, by the oppressors,
and by third parties. Some of these implications will be discussed below.

B. A Space of One's Own

1. Lack of Space to Develop Individual Recognition of Oppression

In A Room of One's Own, Virginia Woolf opines that what women
need to become writers is a room of their own in which they can sit down
quietly and write, and a fixed income that will ensure them the
independence and the freedom to write.152 Similarly, an important
prerequisite for the formation of both an individual and a group
consciousness of oppression and discrimination is a space in which to
develop such a consciousness. Women's abilities to identify and resist their
oppression are seriously hindered by the fact that their whole existence is
inexorably weaved into the society that oppresses them. They are born into
that society, educated into its culture and religion, and its teachings become
as much a part of them as of any man in that society. Further, throughout
their lives they are surrounded mainly by people, many of whom are the
people that they love and respect the most, who place a very high value on
their shared culture and religion, including all the oppressive values

151 hooks, supra note 34, at 1. A similar phenomenon is described by Lee Maracle
in the context of Native American women: "Until March 1982, feminism, indeed
womanhood itself, was meaningless to me. Racist ideology had defined womanhood for the
Native woman as nonexistent . Lee Maracle, I Am Woman: A Native Perspective on
Sociology and Feminism 15 (Press Gang 2d ed. 1996) (1988) (quoted in Moane, supra note
134, at 23).

152 Virginia Woolf, A Room of One's Own (Harvest 1989) (1929).

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embedded in them. Instead of being surrounded by people who would help
them recognize their oppression for what it truly is, they are usually
surrounded by people who will do everything in their power to persuade
them that no such oppression exists. Thus, it is highly difficult for them to
get the external support needed to create a space-physical, mental, and
emotional-in which they can achieve the realization that they are
oppressed, let alone resist their oppression. This is especially true in
traditional, all-encompassing societies in which culture and religion control
all aspects of life and which are, as a rule, the most oppressive cultures for

153women.
Though an oppressed racial or ethnic group can share with its

oppressor a religion and a culture that justify the oppression, it is highly
unlikely that a situation exists where the members of the oppressed group
have no space in which they can at least recognize their oppression. The
history of the subjugation of blacks in America, which is one of the worst
cases of racial subjugation, can illustrate that point. Torn from their
homeland, their culture, and their way of life, and converted to a form of
Christianity which anchored their subjugation in religious precepts, blacks
in America were extraordinarily susceptible to internalizing their own
inferiority and perceiving white supremacy as the natural order.

In his autobiography Black Boy, the author Richard Wright
describes a post-slavery, black American society that has deeply
internalized its subordinate status and the restricted roles prescribed to
blacks by whites. 154 Wright's ambition to become a writer is ridiculed and
even perceived as dangerous by his black friends and family. Any rebellion
against the subordinated status accorded to blacks, even in the form of
aspiring to pursue an occupation that blacks are not supposed to pursue, is
condemned and discouraged by the black community. In this respect,
Wright's black community is as disempowering for him as a traditional
community would be for a woman who considers pursuing an
"inappropriate" career. Where Wright's story differs from the usual story of
a woman in an oppressive society is in the fact that, born and raised in an
exclusively black community, which was vividly aware of its oppression,
Wright had the space in which to develop an acute realization of his
oppressed state, a necessary first step toward successfully resisting the
oppression. It is rare for women in oppressive societies to have such a
space, and therefore it is much harder for them to develop the realization
that they are oppressed.

Not only do women lack the physical and emotional space to
develop resistance, but they also lack a space of their own in the historical
sense. While racial, ethnic, and religious communities can look back to a

153 See Okin, Bad for Women supra note 8, at 12-16.

154 Richard Wright, Black Boy (1945).

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common past in which they were free from oppression and use this
historical perspective in order to develop a vision of a free future, women
do not have a past to look back to in which they were free from gender
oppression. Rediscovering and embracing a shared history in which the
oppressed group lived as a free community is considered essential for the
building of resistance. 15 However, since women do not have such a history,
they cannot rediscover it or use it as a basis for building resistance.

2. Lack of Space to Develop Communal Recognition of Oppression

In her book Personal Politics, which discusses the roots of the
women's liberation movement in the United States and which ties them to
women's involvement in the civil rights movement of the 1960s, Sara
Evans identifies what she terms as essential preconditions for an insurgent
collective identity.'5 6 The first precondition she identifies is a set of social
spaces in which members of an oppressed group can develop an
independent sense of worth that stands in contrast to their received
definitions as inferior citizens. Other important preconditions are role
models who have rebelled and an ideology that can explain the oppression,
justify revolt, and offer a vision of a better future. 5 7 It was only through
their participation in the civil rights movement of the 1960s that a few
rebellious American women found the needed social space, role models,
and ideology to form their resistance.

Further, it was only through their participation in the civil rights
movement that two additional preconditions could be met. 58 First, a
confrontation occurred between the inherited cultural definitions and their
newfound sense of self, which was created through their participation in the
civil rights struggle. Second, these women could utilize the communication
network created during the civil rights struggle in order to spread their new
ideology and create a new social movement. Considering that even in a
relatively free society like American society, extraordinary circumstances
like the civil rights struggle and women's participation in it had to transpire
for the women's movement to emerge, it is not surprising that such
movements rarely emerge in more traditional, cohesive societies.

155 Moane, supra note 134, at 90. Among other scholars Moane discusses with

regard to the importance of a shared history, she quotes the Native American activist and
feminist Maracle who argues in relation to Native Americans that "without a firm
understanding of what our history was before the settlers came to this land, I cannot
understand how we are to regain our birthright as caretakers of this land and continue our
history into the future." Id. (quoting Maracle, supra note 151, at 40).

156 Evans, supra note 147, at 219.

' 57 Id. at 219-20.

15' Id. at 220.

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In addition, it is important to note that in the United States, as in
other parts of the world, the women's movement was created mostly by
those women who came from more open and egalitarian families,15 9 women
who since childhood had the individual space needed to develop at least the
beginnings of feminist awareness. The most effective socialization occurs at
childhood. For example, a study has shown a high correlation between
one's religious training as a child and one's religious commitment as an
adult. In some Christian denominations in the United States such as
Baptists, Episcopalians, and Lutherans, around ninety percent of the people
who were raised practicing these denominations continued to practice them
as adults.' 60 As a result, children who are socialized into religious beliefs
and cultural and religious practices that oppress women are highly likely to
continue to follow these beliefs and practices throughout their lives, never
having had a genuine choice in the matter. As philosopher Elizabeth
Minnich observes, "it is in and through education that a culture, and polity,
not only tries to perpetuate but enacts the kinds of thinking it welcomes, and
discards and/or discredits the kinds it fears.' 16 ' Due to the significant impact
of education and of exposure to other ways of life on children, the United
States Supreme Court has recognized the right of certain secluded
communities, such as the Amish, to effectively isolate their children from
the outside world. 62 While this right may be compatible with protecting the
religious freedom of Amish parents, it is not necessarily compatible with
the best interests of Amish children. This is especially true for Amish girls
who are educated in a patriarchal system of belief that regards women as
"unequal helpers of men," and in which the girls are effectively isolated
from any competing vision of life. 63

Though the spreading of feminist ideas has exposed these ideas, at
least in part, to more women in traditional and religious communities both
in the United States and elsewhere, this exposure is critically hindered by
several factors. One factor is the inculcation from an early age of religious
doctrines that are oppressive to women, which literally prevents women
from having the emotional and mental space in which to be receptive to
feminist ideas. Additional debilitating factors are the vehement rejection of
feminist ideas by the leaders of the community, the conflict between
feminist ideas and the community's culture and religion, and the lack of

'
9 Id. at 123-24.

160 Becker, supra note 34, at 477 (citing Public Opinion Report, America: Land of
the Faithful 96, 101 (American Enterprise 1990)).

161 Quoted in Martha Minow, Not Only for Myself: Identity, Politics and the Law

107 (1997).
162 Wisconsin v. Yoder, 406 U.S. 205 (1972).

163 Stephen Macedo, Liberal Civic Education and Religious Fundamentalism: The

Case of God v. John Rawls?, 105 Ethics 468, 488-89 (1995).

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Countenancing the Oppression of Women

physical space in which these women can discuss feminist ideas and
seriously reflect on them.

In contrast, ideologies demanding freedom for racial, ethnic, or
religious groups rarely encounter opposition from the leaders of these
groups and rarely contradict the group's culture and religion. Such groups
do not usually lack the space to discuss their oppression, even if only
covertly, and though they might disagree on the means to fight the
oppression, it is most likely that many of them agree that the oppression
exists and should be resisted. Perhaps most importantly, the education that
children (including girls) in oppressed racial, ethnic, and religious
communities receive from their parents and their close community does not
deny their ethnic, racial, or religious oppression and does not urge them to
believe that they are not oppressed. This allows their knowledge of this
oppression to become an integral part of their system of beliefs and values
and a challenge to the oppression.

In his writings, the civil rights leader W.E.B. Du Bois describes a
sense of double-consciousness in which the black man lives:

This sense of always looking at one's self through the eyes of
others, of measuring one's soul by the tape of a world that looks
on in amused contempt and pity. One ever feels his two-ness,-an
American, a Negro; two souls, two thoughts, two unreconciled
strivings; two warring ideals in one dark body, whose dogged
strength alone keeps it from being torn asunder.'64

While this sense of double consciousness, of being both an insider (an
American) and an outcast (a black person), is debilitating and damaging, it
can at the same time help one to recognize his oppression and fight against
it. This feeling of double consciousness exists for women too, as they are at
the same time both part of the group and an outcast whose status is inferior
and whose opinions are irrelevant. What is missing in the experiences of
many women, which can help transform their double consciousness from a
debilitating burden to a tool for change, are the conditions in which to form
a deep inner conviction that their situation is one of oppression and injustice
and the space in which to transform this conviction into resistance in
cooperation with others.

As psychologist Geraldine Moane explains,

liberation must be an interactional process: that is, one which
occurs in interaction with others. It can only be undertaken and
sustained in the context of supportive relationships, and it requires
groups which are formed for specific reasons, communities which
build on traditions and provide connection and ritual, and a

164 W.E.B. Du Bois, The Souls of Black Folk 2 (Candace Ward ed., Dover

Publications 1994) (1903).

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culture which gives positive expression to the identity and history
of the oppressed group. 65

While racially-, ethnically-, and religiously-oppressed communities strive to
instill in their members the recognition of their own oppression and create a
space in which they can fight this oppression as a community, societies that
oppress their women strive to deprive them of that recognition and to
prevent them from creating the space and the cooperation required to form
resistance. Consequently, it is not surprising that women who are oppressed
on the basis of their sex find it much harder to recognize their oppression
and to act against it than people in oppressed racial, ethnic, and religious
groups.

C. Minority Women and the Need to Choose Between Gender and the
Community

Even women who are aware of their oppression and try to fight
against it might find themselves deliberately relinquishing the fight after
being singled out as traitors to their community, or after coming to believe
they should prioritize what is perceived as the rights of their community
over their own rights as women. This is especially true of women in
minority communities, where women's struggles to change the
community's oppressive practices are seen as a betrayal of the community's
culture and traditions and as a threat to its stability, all of which are
perceived by the community as the last line of defense against the hostile
world of the larger society.

1. African-American Women in the United States

Women from minority communities often feel the need to choose
between their struggle against the sexism inside their communities and the
racism directed against them. For example, black feminist scholar Kimberl6
Crenshaw describes the dilemma that she faced when an obscenity charge
was filed against the black rap group 2 Live Crew for its extremely
misogynistic lyrics glorifying violent sexual acts against women.166

According to Crenshaw, the lyrics in question were undoubtedly
misogynistic and those in the black community concerned about its high
rates of gender violence must be troubled by the possible connections

165 Moane, supra note 134, at 110.

166 Kimberl6 Williams Crenshaw, Beyond Racism and Misogyny: Black Feminism

and 2 Live Crew, in Words That Wound: Critical Race Theory. Assaultive Speech, and the
First Amendment 111, 120-32 (Mary Matsuda et al. eds., 1993).

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Countenancing the Oppression of Women

between violence against women and the images portrayed in such lyrics.' 67

Nevertheless, Crenshaw objected to the obscenity charges brought against 2
Live Crew because she believed it was specifically targeted for prosecution
as a result of racism, while other groups whose lyrics were no less or even
more misogynistic were not prosecuted. 168 Thus, Crenshaw found herself
having to choose between her concerns about sexism in her community and
her concerns about racism against her community, and chose the latter.
While doing so, she pointed out that

Although concerns about racism fuel my opposition to the
obscenity prosecution, I am also troubled by the uncritical support
for and indeed celebration of 2 Live Crew by other opponents of
that prosecution. If the rhetoric of anti-sexism provided an
occasion for racism, so too, the rhetoric of anti-racism provided
an occasion for defending the misogyny of Black male rappers.169

2. Muslim Women in India

A striking example of the conflict between a woman's fight for her
rights and her membership in a minority community is the Indian case of
Shah Bano. Shah Bano was a seventy-three-year-old Muslim woman whose
husband of forty-three years divorced her and left her destitute. She brought
a petition for maintenance that reached the Indian Supreme Court, in which
she claimed that she was entitled to monthly support according to the Indian
Criminal Procedure Code. Her husband claimed that the law governing the
case was the Muslim personal law, according to which she was not entitled
to maintenance. 170 In 1985, the Indian Supreme Court decided in favor of
Shah Bano, holding that the Indian Criminal Procedure Code prevailed. In
its decision, the court further stated that allowing the maintenance would
not violate the Quran, and called for the enactment of a Uniform Civil Code
to govern all marriages in India. 171

In India each religious community has its own personal laws that
are governed by its own religious law. The result is highly discriminatory

167 Crenshaw describes the lyrics as follows: "We hear about cunts being fucked

until backbones are cracked, asses being busted, dicks rammed down throats, and semen
splattered across faces. Black women are cunts, bitches and all-purpose 'hos' ...
Occasionally, we do hear Black women's voices, and those voices are sometimes
oppositional. But the response to opposition typically returns to the central refrain: 'Shut up,
bitch. Suck my dick."' Id. at 122.

168Id. at 123-24.

169 Id. at 127.
170 Radhika Coomarswamy, To Bellow like a Cow: Women, Ethnicity, and the

Discourse of Rights, in Human Rights of Women, supra note 66, at 39, 58.
171 Kapur & Cossman, supra note 96, at 63.

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toward women, and women's organizations have been advocating for the
enactment of a Uniform Civil Code that will govern all marriages in India
and will be based on equality between spouses. The Shah Bano controversy
intensified the debate over a Uniform Civil Code, and has highlighted the
conflict between the Muslim community and the Hindu Right, which
supports the enactment of the Code as a way of attacking minority rights in
general and the rights of the Muslim minority in particular.17

Conservative and orthodox forces within the Muslim community
responded to the Indian Supreme Court's decision in the Shah Bano case
with outrage, seeing it as undermining Islamic law and as a threat to the
authority of Muslim theologians, whom they felt were the only ones
permitted to interpret the Quran. 73 The Muslim community organized mass
demonstrations, strikes, and petitions calling for a reversal of the judgment.
In 1986, succumbing to the pressure from the Muslim community, the
Indian Parliament passed the Muslim Women's Protection of the Right to
Divorce Bill, which withdrew the right of Muslim women to appeal for
maintenance under the Criminal Procedure code. 74 Shah Bano found
herself in the middle of an intense controversy involving, on one side, her
community, and on the other, the Hindu Right, which was her community's
biggest enemy, but which allegedly was her ally, along with the feminists.
She was considered a traitor by her community, 175 and was threatened and
made to feel responsible for the communal riots that the judgment on her
case had generated. Finally, she herself asked that the judgment be
withdrawn. 

76

3. Arab Palestinian Women in Israel

One last example of the conflict that can arise between women's
rights and community rights is the debate around the passage of a law that
would allow Muslim and Christian women in Israel to file suits regarding
alimony and child custody in Israeli civil courts. The Israeli personal law is
based on the religious laws of the various recognized religious communities

17 2 Id. at 64.

1
7 3 Id. at 63.

174 Chhachhi, supra note 150, at 146. It is important to point out that the stance of
the Muslim community itself was not as monolithic as its leaders portrayed it. There has
been opposition to the Muslim Women's Protection of the Right to Divorce Bill from
reformist Muslim organizations, from large sections of the Muslim intelligentsia, and from
Muslim feminist groups. That opposition, however, along with the opposition from feminist
and other groups outside the Muslim community, was not sufficient to prevent the passing of
the bill. Id. at 168.

175 Coomaraswamy, supra note 170, at 54.

176 Chhachhi, supra note 150, at 168.

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in Israel. 77 This system of personal law is a legacy of the British rule over
Palestine and has been sustained by the State of Israel in order to appease
the Jewish religious sector.178 All the personal laws of the various religious
communities in Israel discriminate against women to varying degrees. 179

Over the years the Israeli legislature has passed several laws that
have ameliorated to some extent the discrimination against Jewish women,
by granting civil courts parallel jurisdiction to that of the Jewish religious
courts over various matters, including matters of alimony and custody of the
children. 8° As a result, under some circumstances, Jewish women may file
suits regarding alimony and child custody in civil court, instead of the
religious court, guaranteeing them a more egalitarian hearing and a fairer
decision. For a long time, no similar legislation was passed pertaining to the
courts of the Muslim and Christian communities."' These courts retained
exclusive jurisdiction over all matters of personal law, including alimony
and child custody. As a result, Muslim and Christian women had no
recourse against the discrimination that they faced in the religious courts of
their respective communities. 182

In 1995, a coalition of Arab Palestinian women's organizations,
Jewish civil rights organizations, and Jewish women's rights organizations
initiated an amendment to the Family Court Act that would allow Muslim
and Christian women to file suits regarding matters of alimony and custody
of children in civil family courts under certain circumstances. 8 3 The
initiative for this amendment has sparked a lively debate inside the Arab
Palestinian community, between Arab Palestinian feminists and the Arab
Palestinian community leaders, as well as between some Arab Palestinian
feminists and Jewish feminists.

177 Raday, On Equality, supra note 76, at 45.
178 Haim Kohen, Religious Coercion in Israel, in 2 Berenson Book 297, 305-06

(Aharon Barak & Haim Berenson eds., 2000).
179 Raday, On Equality, supra note 76, at 48.

180 Francis Raday, Religion and Equality in the Mirror of Judicial Decisions, in

Berenson Book, supra note 178, at 341, 364 [hereinafter Raday, Religion and Equality].
181 The Muslim and Christian communities in Israel make up the bulk of the Arab

Palestinian community in Israel. Most (81.7%) of the Arab Palestinians are Muslims and the
rest are Christians and Druze. The Arab Palestinian citizens in Israel comprise about 18.7%
of the country's population, and they should not be confused with the Palestinian residents in
the territories occupied by Israel, who are not Israeli citizens and are also mostly Muslims
and Christians, but who have religious courts of their own established according to Jordanian
law. Israeli Central Bureau of Statistics, at http://www.cbs.gov.il/shnaton53/st02_01.pdf (last
visited Oct. 10, 2002).

182 Raday, Religion and Equality, supra note 178, at 365-66. For example, if a
Muslim woman remarries she immediately loses custody of her children. Id. at 367.

183 Id. at 366.

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Many of the Arab Palestinian parliament members, especially the
religious ones, as well as the Arab Palestinian religious community leaders,
objected strenuously to the proposed amendment. In a parliamentary
hearing regarding the amendment, the president of the Muslim court of
appeals said that, if passed as law, the amendment would be a disaster for
Muslims in Israel because the Muslim community would be deprived of its
entitlement to complete autonomy and non-interference from the state in
matters of personal law that are at the core of their religious beliefs. 84 The
Muslim parliamentary members objecting to the proposed amendment
argued that it would create unwanted massive interference in matters of the
Muslim community and that, if asked, most of the Arab Palestinian
population would object to the passing of the amendment. 85 To circumvent
the proposal, the Muslim leaders of the Arab Palestinian community have
even issued afatwa-an official threat against the life of the initiators of the
proposal. 1

86

In the face of such adamant objection to the proposed amendment,
and due to inherent mistrust of the Israeli judicial system as a result of
continuing discrimination against the Arab Palestinian minority in Israel,
many Arab Palestinian feminists decided to oppose the amendment. While
recognizing that the religious courts discriminate against women, these
feminists refused to choose the trade-off that the proposed amendment
required. They would be rejecting the community's religious institutions,
which discriminate against women, for the sake of the state's secular courts,
which are part of a system that discriminates against their community and
against them as members of the community. As Lisa Hajjar eloquently
explains,

[t]o use the issue of women's rights as a means of attacking
religious authorities forces a rigid distinction between 'gender
interests' and 'communal interests.' For Arab women in Israel,
this is a spurious dichotomy, since they have more in common
with men of their community-structural discrimination and
political marginalization-than with many Jewish women. Why
should Arab women embrace a bill that generalizes about gender
interests and assumes that the Israeli state's secular institutions can
'save' them from religion, when it was the Israeli state that made

184 Menashe Shawa, The Proposed Family Court Act (Amendment no. 4)

(Comparing Jurisdictions), 1998-Is it Truly a Blessing for Muslim and Christian Women?,
44 Hapraklit 358, 396 (1999).

185 Parliamentary member Muhamad Kena'an, Session 237 of the 15th Knesset,

Oct. 23, 2001, The Proposed Family Court Act (Amendment no. 5), 2001 (2nd and 3rd
readings) (on file with author).

186 Raday, Religion and Equality supra note 180, at 366.

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Countenancing the Oppression of Women

religion so significant to their status and rights (or lack of rights)
as women and as Arabs?

18 7

Consequently, these Arab Palestinian feminists objected to the proposed bill
and advocated continuing to try to change the system firom within. 188

Eventually, after six years of struggle, the Arab Palestinian
women's organizations that supported the amendment, together with Jewish
civil rights organizations, Jewish women's rights organizations, and several
parliament members who were committed to the issue (including all female
parliament members), succeeded in its passage. 189 It remains to be seen
whether these organizations will succeed in persuading Arab Palestinian
women to utilize this new venue in order to advance their rights, or whether
the objection to the amendment within the Arab Palestinian community will
transform the amendment into a dead letter. However, the existence of a
partial alternative to the religious courts for Muslim and Christian women
who wish to avail themselves of it is in itself of great importance and may
even spur change within the religious court system itself to benefit all
Muslim and Christian women in Israel.

The above examples serve to demonstrate why oppression against
women in minority communities often remains unchallenged by the women
inside the community. Women from minority communities often find
themselves in a double bind, which prevents them from fighting for their
rights as women for fear of further jeopardizing the already unequal rights
of their communities. Unfortunately, many states take advantage of this
reluctance and interpret it to mean that minority women are content in their
oppressive circumstances. This view is shared by many outsiders to the
community and serves as a convenient basis for arguing that these
communities have the right to be left alone to continue oppressing their
women. The falsity of this view should be clear from the examples given
above. The duty of the liberal state and of liberals in general is to prevent
the discrimination against the minority community (which is responsible for
minority women's reluctance to go against their community) and, at the
same time, to prevent minority communities from discriminating against the
women in their communities. Far from being contradictory duties as some
multiculturalists argue, these are complementary duties that cannot be
achieved separately.' 90

187 Lisa Hajjar, Between a Rock and a Hard Place: Arab Women, Liberal

Feminism and the Israeli State, Middle East Report, Summer 1998, at 27.

188 Advocates have been attempting this for years without much success.

189 'Me amendment was passed on November 5, 2001.

19c Many multiculturalists argue that an essential part of respecting a minority

community is allowing it to continue its oppressive practices since these practices are at the
heart of the community's culture and religion. Thus, these multiculturalists believe that
imposing liberal values such as gender equality on minority communities is, in itself, a

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D. Essentializing Sameness and Difference

Perhaps liberals embrace religious and cultural justifications given
by various groups for their oppressive practices against women in part
because of the human tendency to essentialize sameness and difference,
which operates to subsume women into a racial, ethnic, or religious group
while accentuating the differences between these groups.

Contemporary social psychology views categorizing persons into
their respective social groups as "central and fundamental to human
cognitive processing," and stereotypes, generalized descriptions of a group
and its members, "emerge inevitably from this categorisation process." 9'
The cognitive consequences of social categorization include the
exaggeration of differences between groups, the accentuation of similarities
between self and other members of the in-group, and the tendency to
perceive an out-group and its members as more homogeneous than in-group
members. 1

92

As a result, people tend to perceive racial, ethnic, and religious
groups other than their own as highly homogeneous groups that are
significantly different from their own. The women in these groups get
subsumed into the group and their interests are assumed to be identical to
the interests of the group as a whole. Consequently, many liberals rarely
question the male leaders of racial, ethnic, or religious groups when these
leaders interpret their group's culture and religion to suit their needs,
claiming that such an interpretation is essential to the group's identity and is
favored by the entire group, including its female members.

The roots of subsuming women into a male-dominant group and
assuming that the interests of the women match those of the group go even
deeper and have to do with the perception of women as part of a male-
dominated family unit. For example, as mentioned earlier, one of the most
influential economic models of the family sees the family as the relevant
unit of comparison and assumes that the head of the family, the man, will
adequately take care of all the members of the family. 93 This theory

violation of their rights. See, e.g., Bhikhu Parekh, A Varied Moral World in Is
Multiculturalism Bad for Women?, supra note 8, at 69, 69-72; Azizah Y. Al-Hibri, Is
Western Patriarchal Feminism Good for Third World/Minority Women?, in Is
Multiculturalism Bad for Women?, supra note 8, at 41. See also Chandran Kukathas, Are
There Any Cultural Rights?, 20 Pol. Theory 105, 132-34 (1992); Avishai Margalit & Moshe
Halbertal, Liberalism and the Right to Culture, 61 Soc. Res. 491 (1994).

191 Working Group of the Directorate of Social Issues, Australian Psychological
Society, Racism and Preiudice: Psychological Perspectives § 4.2 (1997).

192 Id. On the social categorization of people into social groups and the prejudices

that follow, see also Lawrence, supra note 5, at 336-39.
193 Nussbaum, Women and Human Development, supra note 21, at 63-64.

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Countenancing the Oppression of Women

assumes that the man, who is generally at the head of the household, will
always act in the best interests of his wife, neglecting the possibility that she
might have individual needs that might actually conflict with those of her
spouse.

Thus, the effect of the process of essentialization of intra-group and
inter-group sameness and difference on the perception of the needs and
wants of women in groups is twofold. First, because of the tendency to
perceive an out-group as homogeneous, the women in the group are
assumed to have the same interests as the men. Second, because of the
tendency to exaggerate the differences between groups, liberals are willing
to believe that, as a result of their difference, the members of the other
group have a need to maintain a way of life that oppresses women, even if
liberals themselves might not have a similar need.

Ignoring the possibility that the female members of a racial, ethnic,
or religious group might actually oppose the dominant subjugating
interpretation of their culture and religion, while at the same time
exaggerating the differences between the other group and themselves,
allows liberals to believe that they are applying liberal principles by
neglecting women's rights to equality and embracing the group's right to
maintain its oppressing practices.

E. The Myth of Culture and Religion

One aspect of essentializing and exoticising other groups is
attributing every action or practice within those groups to culture and
religion. Many feminist writers have attacked this tendency, both out of
concern for the oppression of women that the tendency helps to justify and
perpetuate, and out of concern for the racism that it manifests. One example
of this is the Western liberal attitude toward Muslimness, which assumes
that any person from a Muslim origin is a religious Muslim and that the
Muslim religion is what its most fundamentalist interpreters say it is. The
consequence of this attitude is that, in the name of multicultural tolerance,
the most horrendous acts of gender apartheid committed by religious
fundamentalists in the name of Islam are allowed to continue without
interference. 

194

Another example is dowry murder in India. As in other parts of the
world, domestic violence is an issue of serious concern for women in India.
Some, but definitely not all, of the domestic violence in India can be
associated with the practice of killing the wife if she is unable to meet her

194 Marie-Aimee Helie-Lucas, What Is Your Tribe?: Women's Struggles and the

Construction of Muslimness, in Religious Fundamentalisms, supra note 100, at 21, 23-24.

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Columbia Journal of Gender and Law

in-laws' demands for dowry. 19 5 Although it is only a part of the
phenomenon of domestic violence in India, the issue of dowry murders is
portrayed by Westerners, as well as by some Indians, as the central, if not
the only, cause of domestic violence in India. Even more important, dowry
murder is portrayed as an ancient Hindu cultural tradition, when in fact it is
a modem phenomenon that has nothing to do with Indian religious and
cultural traditions. 96 Thus, instead of addressing the issue of domestic
violence in India as strictly an issue of women's human rights, this issue is
given unwarranted religious and cultural dimensions. These religious and
cultural dimensions hinder the struggle against domestic violence in
India, 197 and at the same time reinforce cultural stereotypes that are
inaccurate and often racist.198

The tendency to essentialize culture and religion, and to attribute
everything to cultural and religious traditions, ignores the fact that what is
portrayed by the conservative leaders of religious and cultural groups as a
religious or cultural tradition that has lasted from time immemorial and
which is essential to the identity of the group, is often an invented tradition.
Eric Hobsbawm identifies three types of invented traditions: "a) those
establishing or symbolizing social cohesion or the membership of groups,
real or artificial communities, b) those establishing or legitimizing
institutions, status or relations of authority, and c) those whose main
purpose was socialization, the inculcation of beliefs, value systems and
conventions of behavior."' 99 The Indian case of Shah Bano illustrates the
power of invented traditions. Historical analysis shows that the family laws,
which Muslims and Hindus in India venerate, and which were at the center
of the Shah Bano controversy and upheld as defining the authentic
Muslim/Hindu identity, are actually a mix of various elements, including
intervention by colonial administrators.2 00 Thus, the traditions that are

195 Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the 'Native'

Subiect in International/Post Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. J. 1, 13-17
(2002).

196 Id. Though dowry itself is a traditional practice in some Indian communities,

dowry murder is a modem phenomenon that is related to the setting up of a market economy
in India and the growth of a consumer-oriented culture.

197 Id. They do this both by deflecting attention from the real causes of domestic
violence and by creating an atmosphere that would enable defendants to raise cultural
defenses in criminal trials involving violence against women.

1
98 Id.

199 Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of
Tradition 1, 9 (Eric Hobsbawm & Terence Ranger eds., 1983). Hobsbawm defines "invented
tradition" as "a set of practices, normally governed by overtly or tacitly accepted rules and of
a ritual or symbolic nature, which seek to inculcate certain values and norms of behavior by
repetition, which automatically implies continuity with the past." Id. at I.

200 Chhachhi, supra note 150, at 161.

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Countenancing the Oppression of Women

resurrected in order to stress and enforce communal identity are often both
invented and selective.0°

Similarly, in Israel a few years ago, the leaders of the ultra-
Orthodox Jewish community pressured the government into segregating
women in certain public transportation routes and vocational training
courses. 20 2 Though the demands for strict segregation on the basis of sex
were portrayed as stemming from norms of modesty that have always
existed, they were in fact new demands that should be attributed to the
growing extremity in the ultra-Orthodox community in Israel, which
manifests itself in increasingly stricter norms of modesty for women.20 3

Thus, the tendency to explain all practices that oppress women in
terms of religious and cultural norms, and to show tolerance of these so-
called norms, seriously obstructs the struggle against violations of women's
rights. No similar phenomenon exists with regard to religious and cultural
practices that discriminate on the basis of race, ethnicity, or religion, since
religious and cultural norms are no longer acceptable grounds for this type
of discrimination, and as a result there is no point in fabricating such norms
or in continuously expanding and manipulating them. Furthermore,
contemporary rejection of religious and cultural norms as justification for
racism, even when such norms are primordial, makes the respect shown to
religious and cultural norms that discriminate against women, no matter
how authentic they might be, highly questionable.

VII. POLITICS

A. Women's Lack of Political Power

One of the major reasons for the different treatment of cultural and
religious justifications for sex discrimination and cultural and religious
justifications for race discrimination is women's lack of political power and
their virtual absence from positions of decision-making and policy-
forming.204 Though racial, ethnic, and religious minorities are often weak
politically, it is almost invariably the men amongst them who hold any and
all political power that the group has. In addition, we should not forget that

201 Id. at 162.

202 For further discussion, see notes 78-81 and accompanying text.

203 On the increasing extremity of modesty norms for women in the ultra-Orthodox

Jewish community in Israel, see Ora Cohen, Woman's Modesty in the Modem Age 154
(2000).

204 For example, in their book concerning feminist analysis of international law,

Charlesworth and Chinkin state that the book's "central argument is that the absence of
women in the development of international law has produced a narrow and inadequate
jurisprudence that has, among other things, legitimated the unequal position of women
around the world rather than challenged it." Charlesworth & Chinkin, supra note 7, at 1.

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Columbia Journal of Gender and Law

all political leaders, like all human beings, belong to racial, ethnic, or
religious groups and see it as their mission to represent the interests of their
respective groups. Since most leaders, both of minority and non-minority
groups, are men, the results of their political interaction and their political
give and take are most often to the detriment of women in general, and of
minority women in particular.

While in the past overt racism was an acceptable phenomenon, this
is no longer the case today. The most significant events that led to the
rejection of overt racism were World War II and the process of
decolonization. World War II led to the adoption of the Universal
Declaration on Human Rights,0 5 whose purpose was to guarantee basic
civil and political rights to all individuals regardless of their race, ethnicity,
or religion.20 6 Later, the process of decolonization that took place during the
same period as the adoption of the Race Convention led to the strong
condemnation of race discrimination in the Convention. The decolonization
that occurred during the 1960s and 1970s created newly independent
African and Asian states that advocated vigorously for strong language
condemning race discrimination.20 7

In contrast, the historical association between CEDAW, the rise of
Islamic fundamentalism, and the reluctance to confront Islamic oil-
producing states, has prevented similar condemnation of sex
discrimination. 20 8 Furthermore, attempts to introduce into CEDAW fact-
finding mechanisms and complaint procedures similar to those in the Race
Convention were strongly opposed by socialist and developing nations that
argued that violations of women's rights could not be placed on the same
footing as those occurring under repressive and racist regimes. 2 °9 It is
doubtful that such arguments could have been used as a means of stripping
CEDAW of most of its practical significance if more representatives in the
General Assembly were women.21 0

205 International Bill of Human Rights: A Universal Declaration of Human Rights,
G.A. Res. 217, U.N. GAOR, 3d Sess., pt. 1, at 71, U.N. Doc. A/810 (1948).

206 Kymlicka, supra note 1, 2-3.

207 Charlesworth & Chinkin, supra note 7, at 108. The Race Convention was

adopted in 1966.
208 Id. CEDAW was adopted in 1979, the same year of the Islamic revolution in

Iran.
209 Id. at 221.

2'0 As of March 8, 2001 (International Women's Day), only eleven out of 189 U.N.
Member States had women as their Permanent Representatives to the U.N.
WomenWatch-International Women's Day 2001, available at
http://www.un.org/womenwatch/confer/events/IWD2001/50-50_rem-frechette.html (Mar. 8,
2001).

[Vol. 12:1



2003] Countenancing the Oppression of Women 207

B. The Politics of Multiculturalism

Multiculturalism, the notion that certain groups should be accorded
special group rights or privileges in order to protect their cultures even
when such rights conflict with individual human rights, dominates social,
political, and academic thought today, both on international and domestic
levels.211 The area in which cultural and religious arguments are most often

212invoked is women's rights. While ideally multiculturalism should be a
means toward the end of enabling the full development of minority groups
and ensuring equality for their members,1 3 it has in effect been used as a
political tool that serves mainly to oppress women, and even, in some
circumstances, to oppress the same groups that it was intended to protect.

Women in general, and minority women in particular, are often the
victims of the power dynamics between the male leaders of the state and the
male leaders of racial, ethnic, and religious communities, and their rights
are sacrificed in the name of cultural tolerance.21 4 By granting communities
internal control over matters, such as family law, that are essential for the
leaders of the community to demarcate the boundaries of the community
and maintain power over it, the leaders of the state can control the various
communities at what is perceived to be a very low cost for the state, albeit it
at a high cost for women.21 5 In order to maintain the pretense that allowing

211 Charlesworth & Chinkin, supra note 7, at 222; Himani Bannerji, The Paradox

of Diversity: The Construction of a Multicultural Canada and "Women of Color", 23
Women's Stud. Int'l F. 537, 553 (2000); Clare Beckett & Marie Macey, Race, Gender and
Sexuality: The Oppression of Multiculturalism 24 Women's Stud. Int'l F. 309, 310 (2001).
Beckett and Macey describe current times as "a time when the dominance of
multiculturalism is such that critical voices are silenced, oppressive cultural practices
invisibalised and contradictions between the ideals of multiculturalism and those of liberal
democracy masked." Id.

212 Charlesworth & Chinkin, supra note 7, at 222; Stratton Hawley, supra note

139, at 4. See also Becket & Macey supra note 211, at 309 (dominant multiculturalism
ideology sanctions and facilitates gender oppression).

213 Kymlicka, supra note I, at 194.

214 See Becket & Macey, supra note 211, at 316. Becket and Macey argue that the

divisions that multiculturalism has created between various oppressed groups, including
groups of women, have "facilitated collusion in the control of sexuality, particularly
women's, between diverse groups of powerful heterosexual men-Black and White,
academics and practitioners, politicians and policy makers, community leaders and high
court judges." Id.

215 A good example of that is the Indian case of Shah Bano (see notes 157-163 and

accompanying text). As one commentator writing about the Shah Bano case put it: "Thus,
from the lowest to the highest levels of male society, she became nothing more than a pawn
through whom men played their various games of honour and shame." Veena Das,
Communities & Political Actors, the Question of Cultural Rights, in Gender and Politics in
India 441, 460 (N. Menon ed., 1999). It seems that Shah Bano was persuaded by her sons to
sue her husband for maintenance as part of a property dispute between the sons and the
father. After the Supreme Court decision, she was persuaded by leaders of the Muslim



Columbia Journal of Gender and Law

racial, ethnic, and religious communities to continue the oppression of
women is compatible with adherence to human rights principles, leaders of
liberal states collude with the leaders of various racial, ethnic, and religious
communities to portray a picture according to which any insistence by the
state to improve the status of women would constitute a grievous violation
of the fundamental rights of the community and its members. By creating a
dichotomy between women's rights and the rights of racial, ethnic, and
religious communities and choosing to defend the rights of the latter at all
costs, the liberal state exempts itself from the need to protect and promote
the rights of women in these communities, avoids conflicts with the leaders
of the communities, and even gains their cooperation, and at the same time
portrays itself as a champion of human rights.

The segregation of women in various public services in Israel,
which was initiated by the state a few years ago in order to cater to the
demands of the leaders of the ultra-Orthodox Jewish community, is a good

216example of the dynamics of such a political maneuver. 6 While portraying
itself as a champion of multiculturalism and minority rights by initiating the
segregation in certain public services, the state has simultaneously gained
important points with the leaders of the ultra-Orthodox Jewish community,
a minority that is extremely strong politically in Israel. The women inside
the ultra-Orthodox Jewish community, who were the main victims of the
segregation and whose opposition to it might have prevented it, did not
speak out against it, and their silence was interpreted as endorsement. This
silence should not be surprising considering the fact that women in the
ultra-Orthodox community are not supposed to speak their minds, let alone
in objection to a decree by their male leaders on the issue of the proper rules
of modesty for women.2 17 The women outside the ultra-Orthodox Jewish

community to reject the court's decision. As a result of the power struggle that ensued
between the male leaders of the Muslim community, the male leaders of the Hindu Right and
the male leaders of the state, a law was passed that annulled the Supreme Court decision to
the satisfaction of both the male leaders of the Muslim community and those of the state, but
at the expense of Muslim women. The demand of feminist organizations to pass an
egalitarian Uniform Civil Code that would ameliorate the discrimination that Indian women
suffer in the area of family law was once again left unanswered, to the detriment of all Indian
women.

216 The segregation was initiated in certain public transportation routes that cater

mostly to the ultra-Orthodox Jewish community, and in some vocational training courses that
were taken from the general pool of courses and allotted to the ultra-Orthodox community.
See also discussion infra Parts III.C and VI.E.

217 See, e.g., Cohen, supra note 203, at 155 (describing the perception in the ultra-

Orthodox Jewish community of a woman as entirely responsible for maintaining her
modesty through strict adherence to the rules of modesty. The need for strict rules of
modesty and for women's complete and unquestioning adherence to those rules is explained
by the fact that women are too ignorant and too simple to understand for themselves what
can excite a man and lead him to sin, and it is therefore the duty of men to lay down strict
rules of modesty for women from a very early age and the duty of women to obey without
question.); Yanay and Rapoport, supra note 101, at 657-59 (Yanay and Rapoport describe a

208 [Vol. 12:1



Countenancing the Oppression of Women

community who were injured by the segregation spoke out and even
petitioned the Israeli Supreme Court, but were summarily dismissed as
insensitive to minority rights and as outsiders to the community with no
right to speak.218

Some commentators argue that multiculturalism itself is actually a
form of covert racism, or at least can be used to maintain racism while
giving it a seemingly benign explanation.219 In severe criticism of the
official state policy of multiculturalism in Canada, Himani Barmerjy argues
that multicultural policy was initiated by the Canadian state to obscure the
racial discrimination and exclusion from which minorities in Canada
suffer.220 According to her, by focusing on issues such as the "wearing or
non-wearing of turbans," the Canadian state has managed to make even the
minority communities forget "how much less important these were than
their full citizenship rights, their demands for jobs, non-discriminatory
schools and work places, and a generally non-racist society., 221 The real
issue of racial, ethnic, and religious discrimination is "what the cultural
language and politics of diversity obscures, displaces, and erases. It is
obvious that the third world or non-white immigrants are not the
beneficiaries of the discourse of diversity., 222

Along these lines, it should be noted that the way in which
outsiders to the community assume and accept the existence of
discriminatory practices against women in minority communities is in itself
a form of racism since it is based on the feelings of superiority that the
outsiders have toward the community. The assumption that it is natural and
inevitable for a certain community to oppress its female members is
correlated with the assumption of the inferiority of the community. A good

similar situation in relation to the rules of ritual impurity, nidah. The ritual of impurity
compels women to maintain extremely strict and complex rules in order to maintain their
purity, while at the same time women have no say in the formation of the rules, which are
dictated exclusively by the male leaders of the community.).

218 See H.C. 7942/98, Ovadia v. Minister of Labor (Jan. 14, 1999) (regarding

segregation in vocational training. The plaintiff was a non-ultra-Orthodox woman who was
promised a spot in a vocational training course given by the Ministry of Labor for the
unemployed, but was later denied the spot because of her sex when the course was allocated
to ultra-Orthodox men.) (unreported; on file with author); H.C. 5079/97, Israeli Women's
Network v. Minister of Traffic (May 5, 1999) (not published) (discussed in Ruth Halperin-
Kaddari, Women, Religion and Multiculturalism in Israel, 5 UCLA J. of Int'l L. & Foreign
Aff. 339, 363-64 (2000) (regarding segregation in public transportation. The plaintiff was
one of the leading Israeli women's rights organizations.).

219 See, e.g., Helie-Lucas, supra note 194, at 27-28; Kenan Malik, The Perils of
Pluralism: A Re-examination of the Terms of Engagement Between Races and Cultures, and
a Plea for Eauality, 9 Diversity Factor 31 (2001).

220 Bannerji, supra note 211, at 553.

221 Id.

222 id.

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Columbia Journal of Gender and Law

example of that is the way in which the imperial powers in the nineteenth
century justified colonization by pointing to women's inferior status in the
subjugated cultures relative to their status in Europe, seeing it as proof of
the inferiority of these communities, which in turn justified their
colonization.

223

C. Control Over Women as a Substitute for Overt Racism

Finally, the illegitimacy of overt racism and of overtly manifesting
feelings of racial, ethnic, or religious superiority is in itself a cause for the
continued acceptance of cultural and religious practices as justification for
the oppression of women. Control over women has always been associated
with the need to preserve the boundaries of the community and to prevent

224tsrcinter-racial, inter-ethnic, and inter-religious mixing. In the past, strict
boundaries between racial, ethnic, and religious communities could be
maintained not only through control of women, but also through ideologies.
These ideologies stress the inferiority of other races, ethnicities, or religions
and ensure that the members of the community do not desire any contact
with "inferior" outsiders. This is no longer the case today since the
promotion of such ideologies is no longer legitimate. Thus, controlling
women's sexuality, their independence, and their exposure to the outside
world has become the only politically-legitimate channel by which
community leaders can ensure that the boundaries of the community are not
crossed, and that it remains homogenous and "untainted." In other words,
control over women has become the only channel through which to express
covert racism and ethnic and religious intolerance. The prevalence of racial,
ethnic, and religious intolerance, combined with the inability to overtly
express that intolerance, is one of the reasons why control over women is
fiercely defended by the leaders of each community and is perceived as
necessary and inevitable by all others.

VIII. REMEDIES

In this article I have tried to suggest possible answers to two
questions. The first question is why there is such a considerable gap
between the ostensible liberal stance on discrimination against women and
the liberal practice regarding such discrimination, especially in cases in
which the discrimination stems from religious and cultural practices. The
second and even more important question I addressed is how it is possible
that, while this gap is maintained and even expanded in contravention of
women's fundamental right for equality, its perpetuation and expansion can

223 Janaki Nair, Women and Law in Colonial India: A Social History 51 (1996).

224 See Anthias & Yuval-Davis, supra note 86, at 7.

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be portrayed as liberal concern for human rights without raising any
eyebrows. I looked at these two questions from the prism of a third and, in
my view, closely-related question of why cultural and religious
justifications for the oppression of women are still normatively acceptable
to many, while cultural and religious justifications for racial, ethnic, and
religious discrimination, which used to be normatively acceptable in the
past, are no longer sanctioned.

The purpose of looking at these questions through the prism of the
difference between attitudes toward sex discrimination due to religious and
cultural norms and attitudes toward discrimination of racial, ethnic, and
religious groups on the same grounds, is to highlight structural, political,
sociological, and psychological differences between these types of
discrimination and between these groups. Highlighting these differences
serves the dual purpose of explaining the existence of different attitudes
toward these forms of discrimination, while at the same time exposing the
facts that the difference in the attitudes is unjust and that discrimination
against women due to religious and cultural reasons is a phenomenon which
is as insidious as discrimination against racial, ethnic, and religious groups
due to religious and cultural reasons.

I pointed out several mechanisms I think contribute to the
continuing acceptance of religious and cultural justifications for the
oppression of women, namely the fundamental nature of familial ideology
and of women's roles as wives and mothers in most religions and cultures,
as well as in other controlling ideologies, including: liberalism, capitalism,
and nationalism; the incompatibility of the current perception of free choice
to the situation of women, and especially women in traditional and cohesive
societies, which are usually the most oppressive; women's unique situation
as an oppressed group that is not a community and whose members have
distinct and often clashing allegiances with other communities, which they
are taught to prioritize; and women's lack of political power, which results
in their plight being taken lightly by decision-makers and their rights being
used as political commodities to be traded and exchanged between male
leaders of various groups.

The question that needs to be addressed next is what steps should
be taken in order to change current perceptions about the legitimacy of
religious and cultural norms that discriminate against women. Because the
acceptance of such norms stems from structural, political, sociological, and
psychological factors, and because it is related to women's responses to
their own oppression as much as to society's creation of it, we should take
steps aimed at achieving deep and fundamental changes in the attitudes of
both men and women, as well as achieving structural and political changes.
What follows is a sketch of the changes I think are necessary to create a
liberal society in which discrimination against women due to religious and
cultural norms is recognized as unjust, and dealt with accordingly. This is
not meant to be an exhaustive list of changes, nor is it meant to offer a

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detailed analysis of each of the changes. Such an analysis would be a
subject for a different article. Rather, this list of suggestions is meant to
demonstrate the extent of the changes I think are needed, and to provide a
basis for further elaboration and discussion. My purpose is to draw attention
to serious deficiencies in the structure and practices of many liberal
democratic states, which facilitate and entrench discrimination against
women due to religious and cultural norms, as well as sex discrimination in
general.

A. Correcting the Liberal Blind Spot

As I argued in Part II, on the theoretical level the liberal acceptance
of religious and cultural practices that discriminate against women can be
traced to the importance of the liberal distinction between the public and
private spheres and the liberal emphases on tolerance and state neutrality.
The manner in which these aspects of liberal theory play out in the context
of religious and cultural practices that discriminate against women tends to
obscure the damage caused to women by the discriminatory practices, and
to emphasize the importance of non-interference in the private sphere and in
individual preferences, as well as the importance of showing deference to
religious beliefs and traditions. While religious beliefs and traditions should
be respected, and privacy is important, neither can justify non-interference
with practices that discriminate against women. As Deborah Rhode has
pointed out, "[c]ontrary to liberal assumptions, the state's refusal to
intervene in private matters does not necessarily expand individual
autonomy; it often simply substitutes private for public power., 22

1 This is
especially true when the substitute offered to the power of the liberal state is
the power of illiberal religions and cultures, which simultaneously shape
women's preferences and dictate their subordination. The liberal blind spot
with regard to religious and cultural practices that discriminate against
women can only be corrected through application of a much closer scrutiny
to the private sphere and to what is being done in the name of culture and
religion and under the guise of personal preferences in order to ensure that
the liberal promise of equality for women does not remain illusory.

225 Deborah L. Rhode, Feminism and the State, 107 Harv. L. Rev. 1181, 1187
(1994).

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B. National and International Law and Politics: Increasing Women's
Political Participation and Stopping State Support for
Discriminatory Practices

1. Political Participation

More political participation of women is a fundamental, necessary
change, both on the national and international level, and in leadership
positions inside cultural and religious communities. As discussed earlier,
women's lack of participation in politics is one of the main reasons for the
dismissal of discrimination against women as unimportant and for the
prioritization of religious and cultural norms over the rights of women.226

With regard to discrimination against women due to religious and cultural
norms, women's lack of political participation is threefold. First, women are
totally absent from most, if not all, religious and cultural leaderships of the
racial, ethnic, and religious groups that interpret the groups' religions and
cultures, and demand accommodation from the state or from the
international community according to that interpretation. Second, women
are severely underrepresented in the national political leadership that makes
the decisions about whether and how to accommodate the religious and
cultural demands of various groups.227 Third, women are severely
underrepresented in the international forums that formulate international
law and policy.228 This threefold absence of women creates a situation in
which women are virtually nonexistent in both the creation of the illiberal
ideology that discriminates against them, and the allegedly liberal
affirmation of that ideology by the liberal states or the international
community.

Under such circumstances, it is hardly surprising that the illiberal as
well as the liberal attitudes toward the discriminatory practice at hand are,
at the same time, extremely skewed and highly compatible. Therefore it is
imperative to take all necessary steps to increase women's political
participation, including the introduction of affirmative action measures on
both the national and the international levels, with the goal of achieving
gender balance in all branches of government, as well as in all other

226 Charlesworth & Chinkin, supra note 7, at 1.

227 In national parliaments, for example, the average proportion of women
legislators is fourteen percent. WomenWatch-Intemational Women's Day 2001, available
at http://www.un.org/womenwatch/confer/events/TWD2001/50-50_remfrechette.html (Mar.
8,2001).

228 At the Millennium summit of the United Nations in September of 2000, which
was "the biggest gathering of leaders the world has seen," only four out of the U.N.'s 189
Member States were represented by women. Id.

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strategic decision-making positions.229 The introduction of quotas for
women in decision-making positions is gaining much currency in many
parts of the world, such as Europe. In Europe it is understood that without
equal representation of women in decision-making bodies there can never
be true equality between men and women.230 Studies have shown that
women's political participation significantly advances women's rights, and
that women in positions of power are much more likely than men to
advance the interests of women.2 1' Furthermore, the example of the
treatment of race discrimination on the international level is highly
constructive in this context since the dramatic increase in the participation
of representatives of third world countries in the United Nations as a result
of the process of decolonization has had a major impact on the wording and

232scope of the Race Convention.

2. State Support for Discriminatory Religious and Cultural Practices

Another important point related to political participation of women
is that governments should put a stop to their direct and indirect support of
religious and cultural practices that discriminate against women. Thus,
governments should not in any way subsidize or support groups that restrict
women's participation in leadership roles, including religious leadership

233roles, due to religious and cultural norms. In addition, there is a strong
argument against allowing political parties to participate in general
elections if these parties explicitly prevent women, because of their sex,
from becoming political representatives. Similarly, governments should
give neither direct nor indirect aid that would be used to maintain religious
and cultural practices that discriminate against women. For example,
governments should abolish all family laws that are based on religious
precepts that discriminate against women. Likewise, no public funding

229 Fourth World Conference on Women Platform for Action, Women in Power

and Decision-Making, G. 181, G. 190 at
http://www.un.org/womenwatch/daw/beijing/platform/decision.htm (last visited Oct. 10,
2002).

230 Mary Becker, Towards a Progressive Politics and a Progressive Constitution, 69

Fordham L. Rev. 2007, 2033-38 (2001); Margaret Plattner, The Status of Women Under
International Human Rights Law and the 1995 UN World Conference on Women, Beijing,
China 84 Ky. L.J. 1249, 1259, 1268 (1995-96).

231 See, e.g., Susan J. Carroll, The Politics of Difference: Women Public Officials

as Agents of Change 5 Stan. L. & Pol'y Rev. 11 (1994); Amy Caiazza & Meghan Purvis,
Does Women's Representation Lead to Women Friendly Policy? A State-by-State Analysis,
at http://pro.harvard.edu/papers/l18/118004CaiazzaAmy.pdf (Aug. 29, 2001); Sara Childs,
Hitting the Target: Are Labour Women MPs 'Acting For' Women?, at
http://pro.harvard.edu/papers/072/072005ChiIdsSara.pdf (Aug. 29, 2001).

232 Charlesworth & Chinkin, supra note 7, at 108.

233 See Becker, supra note 34, 484-86.

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should be used in any way that discriminates against women, such as
subsidizing public transportation in which segregation between men and
women is maintained and women are ordered to sit in the back. In the
American context a prohibition on public funding for organizations that
practice or promote discrimination against women would prevent the
launching of federally-funded faith-based initiatives if the organizations
requesting the funds discriminate against women in hiring or other
employment decisions, or if these organizations promote doctrines that are

234discriminatory towards women.
People's preferences and expectations are shaped to a large extent

by the existing situation and the legal rules supporting it.235 As a result, the
support given by a government through legislation or financial aid to
religious and cultural norms that discriminate against women exacerbates
this discrimination and creates a vicious circle in which breaking free from
the discrimination becomes harder as state support for it continues. For
example, the initiation of segregation between the sexes in public
transportation in Israel has in itself significantly strengthened a preference,
which Orthodox Jews may not have held previously, for the creation of
segregation between women and men in public transportation. In this way
an allegedly innocuous and tolerant act of the state towards a religious
minority has considerably exacerbated discrimination against women and
has paved the way to further exacerbation through repeated demands for the
expansion of segregated public services.

C. Familial Ideology--State Intervention as a Means for Achieving
Equality in the Private Sphere

1. Intervention in the Family

It has become a truism that the familial realm is one of the most
important sites of oppression for women, if not the most important. The
main argument used to legitimate and continue oppression of women in the
family is the argument for non-intervention based on the perception of the
family as a private sphere outside the state's reach.236 The use of the
argument of non-intervention is particularly conducive to the entrenchment
of sex discrimination based on religious and cultural practices, as many of

234 For an analysis of the chances of anti-discrimination suits for discriminatory

hiring by federally-funded faith-based organizations, see Elbert Lin et. al., Faith in the
Courts? The Legal and Political Future of Federally-Funded Faith-Based Initiatives, 20 Yale
L. & Pol'y Rev. 183, 214-21 (2002).

235 Nussbaum, Women and Human Development, supra note 21, at 142-43; Cass
Sunstein, Preferences and Politics, 20 Phil. & Pub. Aff. 3, 8-9 (1991).

236 See, e.g., Okin, Justice, supra note 19; Nussbaum, Women and Human

Development, supra note 21, at ch. 4; Pateman, The Sexual Contract, supra note 22.

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these practices are seen as occurring in the private sphere and therefore
exempt from legal scrutiny.237

However, as feminist scholars have repeatedly pointed out, the
notion of non-intervention in the family is nothing more than a myth. The
family is created and the power structures in it are maintained by constant
intervention of the state through laws that determine the structure of the
family and what rights and duties family members have toward each
other.238 People who support the notion of non-intervention in the family
and object to state intervention do not perceive the existing laws that
structure the family as state intervention, but see them as a reflection of the
natural state of affairs. Far from being neutral, however, these laws
represent a profoundly ideological intervention by the state, which is aimed
at preserving and strengthening male dominance in the family. 239 Perhaps
the best example of such intervention is state treatment of marital rape. A
majority of states in the United States still retain some form of marital rape
exemption.24 ° Some states, such as Minnesota and South Carolina, do not
even recognize marital rape as an offense unless the couple is living
apart.2 4 ' Thus, if the notion of state non-intervention in the family is only a
myth that obscures clearly ideological intervention, there is no reason why
the state should not intervene in the family in order to protect and promote
the rights of women and girls inside the family. Not only that, but it is the
state's duty to intervene in the family and change existing laws and customs
as a way of countering the damage to women that has been caused by state
perpetuation of male dominance in the family.

Consequently, I would argue that all claims rejecting state
intervention in religious and cultural practices that concern the family and
discriminate against women should be rejected, and that the state should see
it as its duty to interfere in the family to ensure equality for women. Thus,
for example, many of the Oriya Hindu practices discussed at length in this
article should be forbidden by the state, including practices such as
preventing girls from receiving education, performing arranged marriages
without the woman's consent, secluding women, and denying women
inheritance rights.

237 Charlesworth & Chinkin, supra note 7, at 225.

238 See, e.g., Nussbaum, Women and Human Development, supra note 21, at 261-

64; Frances Olsen, The Myth of State Intervention in the Family, 18 J.L. Reform 835 (1985).
239 Olsen, supra note 238, at 845-55.

240 Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88

Cal. L. Rev. 1373, 1375 (2000). According to Hasday, "A majority of states still retain some
form of the common law regime: They criminalize a narrower range of offenses if
committed within marriage, subject the marital rape they do recognize to less serious
sanctions, and/or create special procedural hurdles for marital rape prosecutions." Id.

241 Id

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2. Mandatory Education for Equality

One of the major obstacles in abolishing religious and cultural
practices that discriminate against women is that the women who are
subjugated by these practices are taught to believe that they are in fact not
subjugated and that their situation is divinely ordained. Nowadays most, if
not all, states do practically nothing to change this situation through
education. The emphasis placed on the parental right to determine the
child's education creates a situation in which women are educated from
birth to believe in their own inferiority. Unlike the restrictions on parents
that prevent them from causing their child bodily harm or from refusing to
administer necessary medical care, there is no restriction on parents from
educating their child to believe that she is an inherently inferior being suited
only to fulfill certain specific inferior functions.

For example, as a consequence of the decision of the United States
Supreme Court in the case of Wisconsin v. Yoder,242 the Amish community
is free to educate its girls that they are second-class human beings, while at
the same time shutting them off from the outside world in which they might
be exposed to competing visions of life.243 I would argue that serious
consideration should be given to the need to expose all children of both
sexes to the notion of equality between the sexes. Similar to the manner in
which the state dictates minimum standards of education in private
schooling, it should also dictate a minimum standard of education for
equality between the sexes in private schooling that would ensure that
female children are at least allowed to consider the notion that they are not
the inferior beings their communities and families are trying to persuade
them that they are.244 The consequences of educating young girls in
religious and traditional communities to perceive themselves as equal can
be far-reaching, since such an education can help girls resist their
oppression later in life and struggle for change from within, which would
completely transform the communities in which they are living.

3. State-Subsidized Care

As discussed earlier in the article, liberalism, capitalism,
nationalism, and traditional cultures and religions share a common interest
in keeping women at home. Alongside the shared ideological interest, there

242 406 U.S. 205 (1972).

243 Macedo, supra note 163, at 488-89.

244 1 would argue that this minimum standard should encompass all notions of

equality and not just equality between the sexes, though as I have argued in this article the
situation of women is unique in that they are taught by their own families and communities
to believe in their own inferiority and not in the inferiority of others.

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exists also an economic interest in using women's unpaid labor to take care
of the young, the old, and the infirm. The liberal and capitalist dread of
increased government spending in daycare for children and in welfare for
the old and the infirm fits nicely with the religious paradigm that sees it as
woman's divinely ordained mission to take care of her family. In addition,
the lack of state-subsidized care forces women to remain at home and
provide that care as a practical necessity and not just as a religious duty.

Thus, it is imperative to create state-subsidized care that would take
responsibility for taking care of the young, the old, and the infirm. The
existence of state-subsidized care would sever the unholy pact between the
state and religion designed to keep women at home. If compelled to provide
subsidized care, the state would have a considerably-increased interest in
women going out of the home to do paid work, helping the economy cover
the costs of state care. Due to this interest, the state would be much more
reluctant to support religious and cultural practices that discriminate against
women and prevent them from realizing their full capabilities.
Simultaneously, by going out to work, women in general would gain more
economic independence and involvement in the public sphere, while
women from religious and traditional communities would also gain
exposure to different ways of life. These gains would help women to
struggle for changes both on the state level and inside their communities.

D. Free Choice-The Need for Closer Scrutiny of Practices that
Disadvantage Women

A major obstacle in recognizing the insidiousness of sex
discrimination due to religious and cultural norms is the prevalence of the
belief that women who are part of the group with the discriminatory
practice, or demanding support for it, consent to the discrimination and do
so out of their own free will. As I tried to show in this article, however, the
process by which women's free choice and their consent are analyzed and
assumed is flawed, so these conclusions are misguided. Furthermore, if
women's choices and preferences are shaped by the existing situation, then
justifying the existing situation on the basis of these same preferences
becomes highly questionable.245

I would therefore like to suggest that when examining cases in
which the conflict between women's rights and religious and cultural
practices arises, we should not concentrate on the question of choice, but on
the question of disadvantage, and ask ourselves whether the practice in
question disadvantages women.246 If the answer to this question is

245 Nussbaum, Women and Human Development, supra note 21, at 142-43;

Sunstein, supra note 235, at 8-9.
246 This approach is similar to Martha Nussbaum's approach in her book Women

and Human Development. Nussbaum suggests that instead of focusing on women's free

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affirmative, then the disadvantageous practice should not be allowed unless
overwhelming evidence proves that the practice is consented to by all the
women involved, out of their own, genuine free choice. I would argue that
consciously or subconsciously, we apply a similar strategy when dealing
with discrimination on the basis of race, ethnicity, or religion. Thus, if we
are faced with a discriminatory practice that disadvantages people on the
basis of their racial, ethnic, or religious affiliation, and we are told by the
people benefiting from the practice (or even by some of those
disadvantaged by it) that the disadvantaged group supports the practice, we
dismiss this information as incredible or irrelevant and condemn the
practice. A similar attitude should be employed toward arguments justifying
religious and cultural practices that discriminate against women.

The Canadian Supreme Court has adopted the disadvantage
approach in order to determine whether or not discrimination exists.24

1

According to this approach, if it can be shown that a distinction or a
practice targeted at the disadvantaged group worsens their disadvantage,
then the distinction or practice is discriminatory, even when there is no
intent to discriminate.248 Disadvantage is determined contextually by
examining the plaintiffs social, political, and legal reality "[T]he test of
'disadvantage' requires judges to look at women ... in their place in the real
world and to confront the reality that the systematic abuse and deprivation
of power women experience is because of their place in the sexual
hierarchy. ,,249

My contention is that other courts, as well as anybody else trying to
formulate an opinion regarding a religious or cultural practice that
discriminates against women, should adopt a similar approach, and should
refuse to allow the questionable argument of free choice to take undue
precedence over the very real facts of discrimination and disadvantage.

Under the disadvantage approach, a decision such as that of a
federal district court in EEOC v. Sears, Roebuck and Co., later affirmed by
the Seventh Circuit, would be erroneous.250 In this case the EEOC filed an
employment discrimination suit against Sears claiming that the company
discriminated against its female employees in hiring and promotion by
reserving commission sales jobs mostly to its male employees and relegating

choice we should focus on their capabilities, a list of which she develops in her book, and
refuse to endorse a religious or cultural practice if it hinders women's capabilities. See
Nussbaum, Women and Human Development supra note 21, at 165.

247 Kathleen E. Mahoney, Canadian Approaches to Equality Rights and Gender

Equity in the Courts, in Human Rights of Women, supra note 66, at 437, 445.

248 Id.

249 Id.

250 EEOC v. Sears, Roebuck and Co., 628 F.Supp. 1264 (N.D. Ill. 1986), aff'd, 839

F.2d 302 (7th Cir. 1988).

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female employees to much lower-paying non-commission sales jobs. The
EEOC relied on statistical evidence, which reflected substantial under-
representation of women in commission sales jobs. The court refused to find
against Sears, accepting its claim that the statistical patterns reflected
women's preferences rather than Sears' own discriminatory practices. The
court found that women were reluctant to work irregular hours and felt
uncomfortable with unfamiliar products and competitive compensation
structures and as a result were much less likely than men to choose a
commission sales job regardless of its higher pay.2 5 ' Letting its own cultural
biases regarding woman's nature as feminine, nurturing, and unsuited for the
vicious competition in the male-dominated world of commission selling
dictate the result, the court preferred to attribute women's concentration in
the lower-paying non-commission sales jobs to their own free choice.252 Had
the court given the proper weight to the disadvantages women suffer as a
result of their exclusion from commission sales jobs, and had it insisted that
the plaintiffs submit overwhelming evidence that women choose to
concentrate in the low-paying non-commission sales jobs, instead of relying
on biased assumptions, it would in all likelihood have reached a very
different result. Furthermore, it seems likely that had the case revolved
around job segregation along racial lines and blacks were relegated to lower-
paying non-commission sales jobs while whites were given most of the
higher-paying commission sales jobs the court would have found the choice
argument much less compelling and would have decided for the plaintiffs. 253

IX. CONCLUSION

In comparing the continued acceptance of sex discrimination due to
religious and cultural norms with the rejection of racial, ethnic, and
religious discrimination due to religious and cultural norms, I do not mean
to suggest that these forms of oppression are identical. I do, however, argue
that contrary to popular belief, discrimination on the basis of sex is as
insidious as discrimination on the basis of race, ethnicity, and religion. I
also argue that in order to understand the severity of discrimination on the
basis of sex, it is imperative that an analysis of discrimination against
women should take into account the unique structural, political,
sociological, and psychological circumstances that surround the oppression
of women, and the way in which these circumstances differ markedly from

251 Deborah L. Rhode, The "No-Problem" Problem: Feminist Challenges and

Cultural Change, 100 Yale L.J. 1731, 1768 (1991).
252 Vicki Schulz, Telling Stories About Women And Work: Judicial Interpretations

of Sex Segregation In The Workplace In Title VII Cases Raising The Lack of Interest
Argument, 103 Harv. L. Rev. 1750, 1753 (1990).

253 Id. at 1770-71.

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the circumstances surrounding discrimination on the basis of race, ethnicity,
and religion.

I believe that there are three lessons to be learned from my analysis.
First, the inclination to perceive situations of oppression in women's lives
that stem from religious and cultural practices as acceptable and inevitable
is misguided. Reflecting on similar situations in the context of the
oppression of racial, ethnic, and religious groups makes it clear that the
benign explanations for women's inferior status are not as benign as they
may seem at first glance, that women's alleged acceptance of oppressive
religious and cultural practices is not necessarily a genuine acceptance nor
should it be determinative of a third party's acceptance of such practices,
and that many decisions that are made and actions that are sanctioned in the
name of religious and cultural tolerance should be examined much more
closely and critically.

Second, the tendency to overlook the special difficulties women
face in combating their oppression due to religious and cultural norms has
skewed the understanding of this oppression to the detriment of women.
Because women are raised as part of the group that oppresses them, because
many times they do not have the space to form an awareness of their
oppression, because instead of being educated to resist their oppression they
are educated to believe that it does not exist, and because of the other
reasons discussed in this Article, women's reactions to their oppression are
often quite different from the reactions of racial, ethnic, and religious
groups to their oppression. This difference has been wrongly interpreted to
mean that unlike racial, ethnic, and religious oppressed groups, women are
content in their oppression. As a result, the oppression of women due to
cultural and religious norms is perceived as legitimate and is allowed to
continue unhindered with total disregard to the true plight of many women.

Third, I hope that this Article has helped to expose the falsity of the
contemporary liberal stand on the conflict between religious and cultural
practices and women's rights. By allowing groups to oppress women in the
name of religion and culture, liberals in general and liberal states in
particular are neither protecting human rights, nor are they most often truly
concerned with protecting women. The rhetoric of human rights is used to
disguise misogyny, the serving of political interests, and misconceptions
about religion, culture, and women's allegedly willing participation in their
own oppression. Eager to appear tolerant towards other cultures and
religions, while at the same time happy to avoid conflict, liberals too readily
embrace cultural and religious practices that blatantly discriminate against
women. Keeping in mind that it was not so long ago that religion and
culture played a major role in justifying racial, ethnic, and religious
oppression that has now become unacceptable, it is high time that liberals
start to question what has now become the inseparable link between
respecting religious and cultural practices and countenancing the oppression
of women.

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