Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional motherhood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have had complex relationships with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions.
Many thanks to Mathilde Cohen, Rosalind Dixon, David Fontana, Jamal Greene, Stéphanie Hennette-Vauchez, Vicki Jackson, David Law, Serena Mayeri, Douglas NeJaime, Ruth Rubio Marín, Bernhard Schlink, Reva Siegel, Mila Versteeg, Katharine Young, Emily Zackin, and the participants in panels at ICON-S in Berlin in 2016, the Equality Roundtable at Cardozo in 2016, and the Comparative Constitutional Law Roundtable at James Madison’s Montpelier in 2017, for helpful conversations and comments on previous drafts and related research. Special thanks are due to Gila Stopler for her extensive feedback, which greatly improved this piece, and to the participants in the Global Constitutionalism Roundtable at Boston College Law School in December 2016.
© 2018 Walter de Gruyter GmbH, Berlin/Boston