Rationalizing Misogynist Religious Rules
by Sherry F. Colb
I grew up religious, though my religion was not that of a majority of the U.S. Supreme Court--the religion that regards a zygote as a person. The religion of my youth rejects the personhood of a zygote and indeed finds no "person" present until some point during labor. But like the religion that the Supreme Court now consults to legitimize abortion prohibitions--among the most extreme deprivations of liberty that a person can experience--my religion found ways to rationalize rules that might on their face appear misogynistic.
In my religion, devout families observe the purity of the family, whereby a woman must not engage in any sexual touching with any man (including her spouse) while she is menstruating. Justice Alito's (SA's) religion and that of his fellow theocrats on the Supreme Court does not, as far as I know, make any menstruation-related demands of its parishioners, though Christians and Jews alike have their share of nasty words to describe a normal part of most women's lives--the curse, for example.
In my religion, a woman must submerge in a ritual bath once a month after her period plus seven days, cleansing herself before returning to her husband's sexual embrace. I learned about these things during sex education in middle school. One of my teachers told us that the sexual break each month creates excitement and anticipation and prevents a couple's sexual relationship from growing stale. As a ten-year-old, I did not quite understand what the teacher was talking about, but I dutifully encoded what she said in my long-term memory for convenient retrieval now.
My teacher engaged in a practice that has become quite familiar to me. She took a religious prohibition that bound women alone and that treated a menstruating woman as someone to be kept apart from her spouse and turned it into something positive. Thus the lemon: religious rules treat a woman as impure and literally untouchable for nearly half of every month and in need of a ritual cleansing to remove the impurity of menstruation even after the process itself is over. And the lemonade: religious rules are full of wisdom and help couples maintain the sexual magic that so many other people lose after they have been together for an extended period of time.
It is so easy to forget that the rules of "Niddah"--which literally means separation and that calls for a kind of shunning of those who menstruate--subordinate women and treat them as housing a disgusting process. Men, of course, produce a similar (and similarly disgusting, if this is how one thinks about genital discharge) mix of reproductive cells and other materials, but men do not spend a week or more keeping their own company. At most, they go to a ritual bath after experiencing a night-time emission, but they need not separate for weeks. Why not? Well, obviously, because men came up with the rules and therefore considered their own discharges acceptable while treating their wives' discharges as revolting and untouchable. The further back we go in time, in fact, the more misogynistic were garden-variety rules because people did not yet understand a woman's cycles as perfectly clean and pure and fine.
As a child learning religion, I also encountered the concept of female "modesty." I put the word in quotes because wearing clothing that covers legs, arms, and breasts does not really have anything to do with what normal people would consider modesty. To be modest, to my mind, is to show humility and to avoid arrogance, particularly the kind of gender-based arrogance that places men and their needs above women and theirs. Wearing a sweater is not really modest in any meaningful sense.
I remember asking a teacher why girls must wear long sleeves and long skirts and loose tops that fully cover breasts while boys can wear shorts when it is 90 degrees in the building with no air conditioning. It seemed sexist to me, I said. My teacher considered herself a feminist despite her religiosity, so she wanted me to "understand" that modesty is for women's safety and not at all a badge of inferiority (which is in fact what it is--sorry Mrs. P.). She told me that men have very strong sexual desires and that dressing modestly helps men to avoid committing sins of the flesh with the women they desire. If a girl wears shorts and low-cut blouses, etc., then she might wind up sexually assaulted by a man who cannot help himself.
I did not know much at that time, but I could smell bullshit for what it was. The first problem with the modesty-is-for-women account is that it treats male sexual assailants as having no control over their own behavior. A sexily dressed woman can cause a man to force himself on her, by this logic. Another way of describing this thinking is "rape culture." Rape culture places the job of protecting women from being raped by men squarely on the shoulders of the women. They must dress modestly and make it easier for men to resist the ever-present temptation to force themselves on women. Such thinking is offensive and exonerates men for sexual crimes. Interestingly, sexual assault is not a sin in my religion, though consensual fornication (without aid of the ritual bath) is. Every society recognizes sexual assault as a threat to women's safety, but religion--because it dates back so far--is typically unapologetic about the rape culture it embraces.
I remember learning that a former colleague of mine, one who practices the religion of my childhood, thought that Jewish modesty rules protect women from sexual assault much more effectively than other kinds of rules do. What I found especially depressing about this claim is that it completely ignores the role of rape within religious marriage. I do not mean to say that my religion requires rape; it does not. What I mean is that for young girls and women to dress modestly and guard their virginity until they are married serves to protect them from sexual assault only until they are married. Most men do not take advantage of their presumed prerogative to force themselves on their wives. But many do, and those that do find safe quarter in my religion, just as they found safe quarter in American law well into the 1980's. Until the early 1990's in fact, there were still states that provided an exception to the law of rape for the man who rapes his wife. It is no accident that my religion and early American traditions overlap, as both come from the so-called "Judeo-Christian" ethic. While men essentially owned their wives (including their bodies) for most of this country's history, the rules governing sexual assault were correspondingly reactionary and ugly.
You have probably guessed where all this is going. SA's Dobbs draft quotes Sir Matthew Hale for the proposition that abortion is a great crime. Some people criticized SA for quoting Hale because of some of the other things that Hale said and did in his time, among them the promotion of a man's prerogative to force sex upon his wife at will. Hale thus viewed a wife as a thing owned by a husband and properly available to that husband for his draining his testicles whenever it pleased him. SA's decision to quote him says two things to me. First, SA does not find Hale's revolting attitude toward women's bodily integrity disturbing or offensive. Second, SA might even like Hale's revolting attitude toward women's bodily integrity. The latter proposition strikes me as likely because SA thinks that the fact that some people believe a zygote is an innocent unborn human being entitles those people to force women to remain pregnant and give birth against their will. The marital rape exemption, in other words, is very much like the authority to force people to remain pregnant. The fact that rape takes places inside a victim's body and the fact that the holy zygote imposes extreme burdens on the inside of a victim's body do not matter. So long as a woman's body is a thing to be used, men and others can use her for unwanted sex and for unwanted pregnancy, and SA seemingly lacks the capacity to judge these assaults on women's bodies as remotely intrusive or violative of liberty.
Perhaps my teacher would have defended the marital rape exemption and forced pregnancy and birth too. She might have said that giving a man sovereignty over his wife's vagina and ovaries and uterus gives the man a stake in her life so that he will protect her from people trying to rape her and thereby planting unwanted seeds inside her. But I don't buy it, just as I didn't buy it at ten years old. With rules that plainly subordinate women to men and allow force in matters of sex and pregnancy, we have a species of gender apartheid. SA and at least four of his buddies are comfortable with that gender apartheid, quoting a man who would justify both types. Perhaps in the final draft, SA might say something about how his religion, when forced upon the rest of us, will make women happier and more equal than they would otherwise be. That joy in service can help justify (i.e., rationalize) the rational basis scrutiny that SA applies. But then he probably doesn't even understand the need for justification. That may ultimately be what distinguishes my middle school teacher from SA: being SA means not having to persuade anyone of the justice of one's views.