I skipped a lot of posts, sorry, guys, I’m trying to catch up, Monk-like (and that is not working), to say that I’m not a man or anything, but I have masculine personality traits. I’m lazy, I’m not sentimental, I’m plain spoken and will get in peoples faces. My husband is a busy little homemaker, he’s the most sentimental man I know, he CRIED big tears when Bobby Simone died on NYPD Blue, and he sits silent in church.

I think everyone is like that. So I think it all comes down to sex. Plus I just read Brokeback Mountain (now I might as well see the movie, don’t you think) and the only thing different in that is the way they had sex. Well, different because they did stuff to each other. Although there wasn’t all the lovey-dovey stuff. So I guess I come down as saying it’s all about sex. And who you desire. Because all the other is relative.

Take, for example, the tender years doctrine, which many states have repudiated as sexist, and have thus substituted in its place the rule stating the best interests of the child decide custody disputes. Even with the law mandating equality between mothers and fathers, custody is generally awarded to mothers. If you read some of the studies done on why this is the case, you’ll find many judges still decide custody disputes based on their opinions that women are born better nurturers than men because of their sex/gender. So, whether or not you or I think gender essentialism is “especially important”, it continues to inform the decision-making process of the people who enforce the law.

That’s a weird non-answer. Decidedly weird. Have you lost track of what’s going on? Here’s a brief recap.

Elisabeth: Much of family law is based on essentialst ideas. [Evidence evidence evidence]
Nate: Yes, but some law makes distinctions that aren’t essentialist. After all, the UCC does.
Elisabeth: Here’s some further evidence on family law.
Kaimi: Nate, just pointing out that the UCC exists — and that it’s possible for law to make distinctions — doesn’t answer your question. Law is also capable of drawing distinctions based on invidious reasons.
Dave: Kaimi, some laws were made for other reasons.

Um, dude, you’re just restating Nate’s point, which I already pointed out doesn’t do the work he seems to think it does.

Are you saying that it’s not possible for laws to be in place due to invidious ideas about gender (or race, or other things)? Of course you’re not. That would be idiotic.

So one the one hand, it’s possible that legal distinctions are based on invidious categorizations. And on the other hand, it’s possible that they’re entirely innocuous. This is a starting point, not an end point.

The next question is how to determine which category a distinction in fact falls into — invidious or innocuous. And how do we determine this? It can only be done by examining the particular law in question.

Which brings us back to the fact that Elisabeth has (in 71, and again in 77) provided actual evidence for her claim, while Nate and Dave have done nothing of the sort. Until and unless someone takes on her evidence or provide contrary evidence, all of the hot air in the world (“yes, but it’s theoretically possible for non-invidious distinctions to exist”) won’t mean anything.

So right now, she’s mopping the floor with you guys. And given the fact that any challenge will necessarily come on her turf — the actual structure of the law in question — I don’t really expect that to change any time soon. Perhaps you’ve realized this too, which is why you’re throwing out side arguments to distract.

Clark, you raise an interesting question about the content of Waters’ lyrics (the gaping black hole in my brief reviews). I do find many of them to be objectionable. You don’t mention the extreme pacifist (extreme enough that Waters seems to think that allied aggression in WWII was bad) and his complete contempt for capitalism. I tend to look past this. I don’t tend to be bothered by otherwise objectionable content in songs, movies, books, or plays. (Or the scriptures or proclamations, evidently :) )

chronicler, thanks for the kind words about my brief reviews. I hope that people find them enlightening. If nothing else, they should help answer Kaimi’s concerns about whether I have a double standard with regard to threadjacks.

Nate, thanks for the comments. As far as the proclamation, you’ve said nicely what I was trying to get at by saying, “I don’t think that the Proclamation on the Family works well as a definitive, positive statement of doctrine, because it is not especially definite.”

In fact, one major theme of this post is that the gospel is a lot less determinative on gender issues than people give it credit for. For example, the Aaronic priesthood manuals contain a lesson entitled “Respecting Womanhood.” This kind of thing may set off all kinds of flags among those that are especially sensitive to the notion that there is a Platonic quality (or Aristotelian essence) that we can call “Womanhood.” But feminists are bound to be disappointed when they actually read the lesson and see that it’s mostly about manners.

Part of the my gripe (and part of what leads me to talk about utter nonsense and trivialities) stems from the sense that I get that feminists are somehow disappointed that a lesson such as “Respecting Womanhood” doesn’t actually make good grist for their mill. One might expect them to be relieved–I would be. I think that we see the same type of thing when Elisabeth insists that there’s got to be something harmful about the proclamation because people might use it discriminate (as though such people wouldn’t find other excuses anyway).

The rule is ultimately based on the percieved regularities, not their metaphysics.

Nate – If by the above statement you are saying that the presumptions in favor of giving mothers custody of small children were based primarily on practicalities and convenience, then I don’t agree with you. The tender years doctrine was a reflection of the perceived competence of women to be better nurturers because of their sex. Sure, there are other forces at play, which you point out, and these attitudes are definitely changing, but judges, even now, still freely admit that there are biological differences between men and women, and that these biological differences predestine women to be better nurturers than men.

Even though the tender years doctrine and other maternal presumptions have been repudiated by the courts, and a best interest of the child standard adopted in their stead, a great majority of disputed custody cases are resolved with custody going to the mother.

If you’re interested, this article includes interviews from practicing judges explaining their decision-making process in custody disputes.

Judging the Best Interests of the Child: Judges’ Accounts of the Tender Years Doctrine
by Julie E. Artis, Law & Society Review, December 2004