Feminist Law Prof Jessica Silbey has an excellent post today on Concurring Opinions about the decision by the Massachusetts Commission Against Discrimination to expand the state Maternity Leave Act to apply to fathers too. This change means that employers in Massachusetts must now offer both mothers and fathers 8 weeks of unpaid leave following the birth or adoption of a child. It appears that much of the decision was prompted by the state having same-sex marriage and the Commission determining how to rectify the problem that a lesbian couple would have, under the statute, two parents eligible for leave but a gay male couple would have no parents eligible. Interpreting the law as sex-neutral solves this problem.
But it also does something more. It shows just how same-sex marriage works to break down gender stereotypes. This is a key argument in the sex discrimination argument in favor of same-sex marriage: not only are laws against same-sex marriage plainly facially discriminatory based on sex (a man can do something — marry a woman — that a woman cannot do), but they also perpetuate sex- and gender-based hierarchy within marriage. Jessica’s post about the change in Massachusetts parental leave law expertly illustrates how the advent of same-sex marriage breaks down such sex- and gender-based hierarchy.
It’s definitely worth reading the entire post, but here’s a key part if you don’t want to follow the link above:
I have long lamented the accommodation of maternity leave â€“ not because I think it unnecessary for mothers but because it creates an expectation that mothers (and not fathers/spouses) will stay home with the baby when born or adopted. In addition to providing time to physical recuperate from labor (which for most women takes between two and four weeks), maternity leave (especially for new moms) is a form of boot-camp, teaching women how to care for an infant by forcing the togetherness. Most women don’t know any better than most men how to calm a fussy baby, how to feed a baby, how to swaddle a baby or put her to sleep. These skills are gender-neutral. When do women become more competent than men at these tasks? When they care for their own newborn during maternity leave (or, admittedly, when they have taken a job caring for children or cared for a sibling or friend’s child prior to having their own child). Maternity leave is a three month (sometimes more)”head start”in the child-care department. And this head-start often sets the parameters for child-care duties in the future. At four months when a mother is back at work, that mother is typically better at soothing and dressing and feeding the baby because she has done it so often the past twelve weeks while her husband/spouse was at work. It makes sense, therefore, at the end of the work day, that when the baby is fussy or hungry that she calms and feeds the baby because she is better at it. This is an efficient division of labor. But it also relegates her to the”second shift,” one that mothers have historically complained about, whereby she works in the office all day and in the house all night. And this gendered child care dynamic is entirely avoidable if fathers/spouses became as competent as mothers in the earliest days of their baby’s life. Three months of total immersion in child care is a long time. Ask any parent: the learning curve is a steep one. And when the baby is crying, you want the most skilled person to calm that baby (i.e., the person who can succeed the fastest at the task). This is often the person who stayed home with the baby, and it is usually the woman.
- David S. Cohen