Chapter Two—
Constituting Political Bodies:
Gender and the Basic Law

In the fall of 1948, Elisabeth Selbert was among the sixty-five representatives delegated by state legislatures in the British, French, and American zones of occupation to meet in Bonn for the purpose of formulating the Basic Law (Grundgesetz), a constitution for a new Germany. Like many of her colleagues in Bonn, Selbert was a lawyer, an expert in constitutional affairs in the Social Democratic party. She was a truly exceptional individual, and her path to Bonn was anything but direct; when she was born in Kassel in 1986, the daughter of a low-level prison official, there was little reason to predict that a half century later she would be taking part in defining the shape of the German state. Selbert had overcome the odds against pursuing higher education, completing secondary school and a further year in a commercial vocational school, where she had learned French and the skills that qualified her for whitecollar work in a large export firm. She was politicized by the revolution of 1918 and became active in Social Democratic politics in Kassel, where she met her future husband, a printer who was a leader of the "Workers' and Soldiers' Council." An active advocate of women's equality within the SPD, she served in local government in Kassel. Two small sons and political work did not stop her from continuing her education; at the age of thirty, she completed the Abitur , the secondary-school prerequisite for admission to university study, and in 1929 she fulfilled the requirements for a law degree. The following year, she finished a dissertation that explored the arguments for reforming divorce law.

After a legal apprenticeship, Selbert passed all exams required for admission to full practice in the fall of 1934, a year after her husband, also active in local politics in Weimar, had been labeled an "enemy of the state" and shortly before a decree of January 1935 that blocked women from entering the legal profession from that date on. While her husband remained unemployed, sat in "protective custody," and then survived only under the watchful eye of the Gestapo, she continued to practice both criminal and civil law, living a contradictory existence as a lawyer within a political system that suppressed her political beliefs and discriminated against her sex.

Throughout the Nazi years, Selbert maintained illegal connections to former Social Democratic comrades, and she joined them in rebuilding the party in Kassel immediately after the war's end. She was elected as a Social Democratic representative to the Hessen parliament in late 1946, and it was this body that sent her to the Parliamentary Council.^[1]

The task confronting Selbert and her colleagues in Bonn was formidable. The first steps toward postwar self-government in Germany had already been taken at the state and local levels and in the German administration of the British-American Bi-Zonal economy and government. In these contexts, postwar West Germans eagerly sought to document their move from dictatorship to democracy and their ability to manage their own affairs. It was up to the Parliamentary Council, however, to determine how these local, state, and regional initiatives would fit together in a national whole greater than the sum of its parts.

Immediately after the war, it was not even certain where the borders of a new German nation would lie, whether there would be one Germany or two. By late 1947, this question had been answered. There was little doubt that any constitutional solution drafted by Germans in the western zones of occupation would not incorporate those Germans across the border to the east. Within the larger context of the Cold War, economic division was tantamount to political division. While the future of a unified Germany would remain an open question in theory, West Germans conceded that in practice the de facto union of the French, British, and United States zones of occupation required a de jure foundation.

At first, the Parliamentary Council had claimed that its task was to outline only a provisional framework, lest any appearance of permanence close off the possibilities of a unified Germany in the future. But by the time it completed its work, most participants accepted that the

Basic Law was anything but temporary. Four years after Germany's final military surrender and the end of the war in Europe, the constitutional basis for a new West Germany was in place.

The Basic Law drafted by Selbert and her colleagues articulated an explicit response to the past of National Socialism, to the social dislocation of the immediate postwar period, and to the present of global conflict between east and west. It defined those fundamental civil rights destroyed by the Nazis and, from the perspective of West Germans, still denied the population in the Soviet-occupied zone. The Grundgesetz also sought to invoke the democratic tradition embodied in the Weimar Republic while avoiding the structural weaknesses of the Weimar constitution, which had made it possible for the Nazis to seize power by legal, electoral means.

These forces profoundly shaped the debates of the Parliamentary Council: they influenced discussions of the catalog of civil rights, the structure of political decision-making at the national level, the relationship of West Germans to the western alliance, and the division of fiscal responsibility and administrative authority between state governments and the central administration. An examination of the Basic Law can illuminate the exercise in political introspection through which West Germans confronted their past by assessing their present and defining their future; behind the sometimes abstract and legalistic debates over the Grundgesetz was a process of painful self-evaluation.^[2] Included in this process were lengthy discussions of the status of women and the family. These topics were addressed directly in debates over women's equal rights with men (Article 3, Paragraph 2) and the guarantee of the state's protection of marriage, motherhood, and the family (Article 6).

Anchoring women's equality in the constitution was extremely important to Selbert, though she had come to Bonn not as a spokesperson for women's rights but as an expert on the problem of reconstituting the court system and establishing a national framework for judicial review. She assumed that a new West German state would confront no impediments to reaffirming the equality of women and men prescribed by the Weimar constitution. Reflecting on her experience almost thirty years later, she recalled, "I took it for granted that after two world wars and the experiences that we women had in those decades, equal rights for women would make it through the political process without struggle and with no further ado."^[3] These expectations proved unfounded, and before the Parliamentary Council concluded its deliberations, Selbert would emerge as a forceful, articulate advocate for women's equality.

Her goal would be achieved only after the mobilization of public opinion, political struggle, and lengthy debates that allowed her colleagues to describe in detail their views of women's natural capacities, rights, and obligations.

No less important for revealing postwar Germans' conceptions of where women belonged in a new democratic order were the Parliamentary Council's debates over Article 6, which placed marriage, motherhood, and the family under the "particular protection" of the state. Here the initiative came not from Selbert and Social Democrats but from the Catholic Church and the Christian Democratic Union. Although the CDU and its coalition partner, the Bavarian Christian Social Union, were ultimately willing to accept Selbert's arguments for women's equality, they insisted on specific language guaranteeing the protection of a social institution—the family—where women's rights were also clearly at stake. Women's status in postwar West Germany was defined explicitly along both axes—the axis of women's individual rights and equality with men and the axis of women's role as wife and mother.

Public opinion polls in the late forties reflected the profound ignorance of many Germans about the deliberations of the Parliamentary Council and the form of the Basic Law. West Germans, concluded the Allies and German poll-takers alike, were at best apathetic about politics after the experience of the Thousand Year Reich. For women, who had won the franchise only in 1918, their virtual exclusion from political decision-making under the Nazis compounded the problem. Of West Germans interviewed in March 1949, forty percent claimed that they were "indifferent" to the constitution; among women, the figure was forty-eight percent. Only forty-four percent of women admitted to being "fairly" or "very interested."^[4] A survey conducted by the United States Office of Military Government after the Parliamentary Council concluded its deliberations revealed that "large numbers of Germans were not aware that a Basic Law had been framed for a West German Federal Republic."^[5]

The Parliamentary Council's debates over the status of women and the family's future proved that there were exceptions to this general apathy, ignorance, and nonparticipation. Many Germans may have claimed to care little about politics in the late forties, but they revealed a lively interest in such ostensibly apolitical issues as women's status and the family's relationship to the state. In their final form, both Article 3 and Article 6 were shaped not only by the politicians meeting in Bonn but also by the mobilization of public opinion. Women and the family

attracted widespread attention in ways that questions of federalism did not; here everyone could claim firsthand knowledge, here everyone was involved.

The composition of the Parliamentary Council, selected by state governments, not by popular national elections, reflected the balance of political power in West Germany after the war. The SPD and the CDU/CSU coalition had emerged as the most important postwar political groupings, and each sent twenty-seven voting representatives to Bonn.

At the war's end, Social Democrats unearthed the SPD's Weimar foundations from the rubble, and on this solid institutional and organizational basis quickly built a major political force. The SPD offered itself as the political representative of the working class, but such claims did not deter some workers, particularly Catholics, from aligning themselves more closely with Christian than Social Democracy, nor others from remaining to the left of political socialism in the German Communist party (KPD). In the late forties as in the twenties, German workers spoke with more than one public political voice.

The postwar German working class was split not only along ideological lines; it was also divided between East and West. In the Soviet zone of occupation the fusion of Socialists and Communists into the Socialist Unity Party (Sozialistische Einheitspartei Deutschlands, SED), forced through by the Soviets in 1947, was another indication of the split between the two Germanys. "Unity" was a euphemistic description of the end to any attempt at multiparty democratic rule in the East; the creation of the SED tied German Communism even more closely to Moscow and Stalin. In the western zones of occupation, the Communists remained on the margins, winning a high of 15 percent in the first state elections in North Rhine–Westphalia and more often hovering at or below the 10-percent electoral level. Initiatives aimed at reconciling differences between the KPD and SPD and creating a united front were isolated and largely ineffective.

Postwar developments greatly diminished the challenge of the SPD's principal competitor in Weimar's last years, but they also cut the party off from some of its most important proletarian strongholds; Saxony and Thuringia, bastions of working-class political strength since the late nineteenth century, were now "behind the Iron Curtain." Still, the party's aggressive recruitment of a mass membership through the rapid rejuvenation of pre-1993 structures allowed it to do extremely well, vying

on roughly equal footing with the CDU/CSU in the earliest elections at the state and local level.^[6]

In contrast to the SPD, the Weimar lineages of the CDU/CSU coalition were far less self-evident. Indeed, the emergence of Christian Democratic and Christian Social political parties represented a deliberate attempt to overcome the deep political divide between Catholics and Protestants, a rift that dated back to Bismarck's attempts in the 1870s to win favor with political liberalism by attacking political Catholicism. Self-identification as Christian and Democratic also allowed a clear self-distancing from anti -Christian Nazism on the one hand and allegedly atheistic socialism and communism on the other. In theory, this permitted the CDU/CSU to appeal to a cross-class constituency, and it continued to draw not only on middle- and upper-class voters but also on some Catholic workers.

The CDU/CSU sought to define a position distinct from the antidemocratic German National politics of Weimar, though the Allied refusal to license right-wing parties ensured that conservative voters had little choice but to come to the coalition. Although the CDU/CSU drew on constituencies that had been organized on the anti-democratic right in the twenties, Christian and Democratic were political labels far easier to wear than German and National in the aftermath of the National Socialist regime. Names were important. A Christian party was feasible in the postwar period; a national party was not.^[7]

Although the CDU/CSU took great pains to establish its identity as the interconfessional representative of all German Christians and could claim a strong north German Protestant following, the coalition's close ties to the Catholic church were unmistakable. By absorbing large parts of the Weimar Center party, it became the unquestioned heir apparent to political Catholicism in a new Germany. A revived network of Catholic lay organizations became an important part of the political infrastructure of the conservative coalition. Even more than the Protestant Church, organized Catholicism maintained that it had survived unscathed under National Socialism and thus could claim moral high ground from which it was entitled to shape a postwar political ideology, filling the vacuum left by the destruction of National Socialism. This self-estimation was also accepted by the Allies, who identified the Catholic church as a representative of a Germany that had not succumbed to the National Socialist dictatorship and could more readily be rehabilitated for democracy.

The division of Germany had further strengthened the position of political Catholicism. The eastern regions that made up the Soviet zone were historically strongholds of Protestantism. In the western zones of occupation, Catholics and Protestants were roughly equal in number, ending the minority status of German Catholics that had defined confessional politics since Bismarck's Kulturkampf in the 1870s. Thus, the Catholic bishops believed that they should enjoy a privileged position in defining the bases for a Christian reconstruction within the political ranks of the CDU/CSU coalition.^[8]

In its early history, Christian Democracy espoused no single programmatic vision and still encompassed conceptions of a Christian socialism, first proposed by left-wing intellectuals and some workers in the Weimar years. By the time the Parliamentary Council convened, however, the coalition had backed away from such initiatives; instead it unified behind Konrad Adenauer, the former mayor of Cologne, who had won favor with the Allies by supporting West German integration into a western alliance and unequivocally endorsing the economic vision of Ludwig Erhard. Erhard, a Bavarian who had risen to prominence as a leader in the Bi-Zonal administration and played a key role in defining the basis for currency reform, argued that German recovery should take place on the basis of a "social market economy" (soziale Marktwirtschaft ). The emphasis on social indicated the CDU/CSU's determination not to emulate a heartless brand of competitive capitalism; but of far greater significance, the emphasis on market economy reflected the commitment to an economic order in which state intervention would be kept to a minimum and free markets would reign. Under Adenauer, the CDU/CSU increasingly came to equate socialization with the bureaucratically run, planned economy that Germans had experienced under National Socialism and that Germans to the east experienced under Soviet occupation.^[9]

With its five delegates, the Free Democratic Party could potentially tip the balance between Christian and Social Democrats in the Parliamentary Council. New in name, the FDP was tied by its history, program, and personnel to pre-1914 National Liberalism and the German Democratic party of the Weimar years. Its strong commitment to economic liberalism and its opposition to all proposals for a planned economy made it a logical ally for the CDU/CSU on a broad range of issues; its demand for formal separation of church and state and its aversion to state support for religiously oriented schools ensured that it would sometimes break with the conservative coalition.^[10]

Six other voting seats were divided among the relatively insignificant German Communist party; the Center, a handful of Catholics who remained outside the CDU/CSU after 1945 until their merger into the coalition eight years later; and the German party, a conservative, avowedly Protestant political grouping, regionally concentrated in Lower Saxony. Like the Center, it presented symbolic resistance to CDU/CSU claims to represent all German Christians.^[11]

Whatever the ideological divisions among postwar political parties, they shared one thing in common: their representatives to the Parliamentary Council were almost all men. State legislatures sent only four women to Bonn, slightly more than six percent of all delegates (fig. 11). In contrast, thirty years earlier women had made up ten percent of the delegates to the Weimar National Assembly.^[12] The Frauenüberschuss did not register in an oversupply of women in the corridors of political decision-making. Despite the organizational initiatives among some women at the local level immediately following the war, the creation of a national nonpartisan women's organization by the late forties, and pressure from women for an expanded role in all political parties, when it came to political decision-making at the national level in postwar West Germany, there was apparently no "scarcity of men."^[13] The composition of the Parliamentary Council clearly reflected the sentiments of Germans, recorded by postwar public opinion polls, that women need not concern themselves with the business of politics.^[14] The state legislatures that sent delegates to the Parliamentary Council agreed that the representation of women's concerns did not require the presence of large numbers of women representatives.

Initial guidelines for the Grundgesetz, which emerged from discussions among the heads of state governments in all the Allied-occupied zones in the summer 1948, did not include any direct treatment of women's status. Some postwar state constitutions had guaranteed women civil equality, and in some cases this was extended to equal rights and wages in the workplace as well. But in the drafts handed on to the delegates sent to Bonn, it was thought that women were adequately covered by general language that ensured all citizens equality before the law and banned discrimination of all sorts.^[15]

By the time the Parliamentary Council concluded its deliberations, however, the Basic Law explicitly promised that "men and women have the same rights." This marked a giant step beyond the equal-rights clause of the Weimar constitution and a victory for the SPD, which had

mobilized public opinion in what the SPD's Frieda Nadig called the "battle for equal rights" (fig. 12).^[16]

The first salvos in this battle had been fired in early discussions of the equal rights provisions of the Basic Law. The promise that all Germans were equal before the law applied to women as well as men, but, as the SPD's Ludwig Bergsträsser emphasized, "After the experiences of the Hitler years, it seems necessary to articulate explicitly the fundamental principle of equality." Twelve years of women's exclusion from politics had made essential a clear commitment to women's rights.^[17] Bergsträsser, who along with Selbert was among the principal advocates of women's equality in the Parliamentary Council, expressed a widely shared desire to make a clean break with Nazi misogyny. The Nazis' emphasis on women's role as mothers had relegated them to hearth and home while erasing the distinction between public and private as all mothers became mothers of the nation.^[18] In a new, democratic Germany, it would be essential to guarantee women's complete political rights and full access to all occupations.

Although no delegate to the Parliamentary Council disagreed, consensus extended little beyond this general prescription. Did women's equality with men imply equality in all respects and the denial of the significance of sexual difference as the basis for women's special treatment in some areas? Did the equality of male and female workers follow logically from the equal rights of male and female citizens? Was the private sphere of the home subject to a different set of laws, or did the equality of women and men necessitate legislating the equality of wives and husbands, mothers and fathers? Debates in subcommittee and in the plenary sessions of the Parliamentary Council focused directly on these questions and revealed that there were many possible answers.

The SPD was committed to guaranteeing women full equality in all areas; the equality of citizens must extend to the workplace, to the political order, and to the home. These demands were by no means new for Social Democrats. More than any other political party, they could invoke a long tradition of professed commitment to women's rights, dating back to the 1890s. In practice, the party's support for women's equality had often clashed with working-class men's fears of women as competitors in the labor force and Social Democratic and trade-union support for family wages to be paid to male heads of households. But at least in theory, socialism's answer to the "women question" was that women and men should be equal in every respect.^[19]

No less committed to women's equality in the late 1940s were organized middle-class women activists. Although absent from the meetings of the Parliamentary Council, their voices could be heard lobbying on the periphery, and on the question of equal rights for women they pushed in the same direction as Social Democrats. Along with the SPD, they also linked demands for women's rights with demands for a complete overhaul of those provisions of the Civil Code (Bürgerliches Gesetzbuch) that regulated marriage and family relations. It is worth reviewing the historical background to this reform agenda, because it was a past in which many of the legal experts delegated to the Parliamentary Council had participated. In discussing the legal status of women and the family, they were picking up where they had left off after the violent disruption of the Nazi seizure of power fifteen years earlier.

Drafted in the 1870s and 1880s, passed in 1896, in effect since 1900, the Civil Code had created legal uniformity in a unified German Empire.^[20] According to its provisions governing marital relations, husbands had extensive and explicitly patriarchal rights over their wives. The code's references to parental authority in fact articulated paternal rights—fathers had the final determination of what was in their children's best interest, just as husbands had the final say over their wives and what was in the best interests of their marriage. A married woman could enter into a wage contract as an individual only with her husband's permission, and a husband could go to court to terminate a contract for his wife's employment outside the home, should he deem it an impediment to the performance of her domestic responsibilities. The Bürgerliches Gesetzbuch also severely limited a married woman's control of property. In theory, once a marriage ended a wife could take from it all property she had brought into it. She also had rights over whatever she earned while married, either from her wages or from any business she controlled. But while the marriage lasted, her husband could administer her resources as he saw fit, and unless otherwise regulated by a prenuptial agreement, he could invest returns without consulting her and claim as his property any profits.^[21]

According to the explicit justification for the Bürgerliches Gesetzbuch, these provisions originated in the "natural order of relationships"; they ensured the state's interest in stable marriages as the "foundation of morality and education." This conceptual framework marked a shift from the legal formulations of the late eighteenth century, according to which the family appeared as a collection of individuals with

rights. In contrast, the family described by the Bürgerliches Gesetzbuch had assumed the status of a "moral institution," the "organic basis [Keimzelle ] of state and society." These categories justified the subordination of women's rights as individuals to the good of a larger whole.^[22]

In its regulation of marriage and the family, the Bürgerliches Gesetzbuch made explicit the conflict between the ideal liberal conception of the rights of free individuals operating within a bourgeois "public sphere" and the relations of hierarchy and dependence underlying a patriarchal order that defined married women not as individuals but in terms of their relationships to husbands and children. In her 1907 critical commentary on the Civil Code, the middle-class feminist legal expert Marianne Weber charged that in this sense, the drafters of the Bürgerliches Gesetzbuch had been forced to "throw together fundamental principles that basically must destroy each other, like fire and water."^[23]

Following the German Revolution of 1918, women had been granted the franchise, and in the spring of 1919 the constitutional assembly meeting in Weimar had added that women and men should "in principle" (grundsätzlich ) have the same "rights as citizens" (staatsbürgerliche Rechte ). Some Social Democrats argued forcefully that rights granted "in principle" must in reality extend to all arenas, including the private sphere of the family. Invoking the experience of the French revolutionaries in August 1789, one SPD delegate recalled "that famous evening when the upper estates gave up their privileges."^[24] In a democratic state, German men must likewise be prepared to give up the privileges of an estate defined by gender and grant women full equality. The fall of the authoritarian Imperial German state necessitated the fall of men's authoritarian control over women. But in its final form the Weimar constitution extended equality to women only in the public sphere. The Civil Code remained intact; the privileged position of husbands within their families remained inviolable. Private wives were not assured the same equality and individual rights as women in public.

Socialists, middle-class feminists, and liberal legal experts continued to demand a reform of the Civil Code throughout the twenties and early thirties, tying their claims to a half-century of protest by the middle-class women's movement, the discrepancy between a patriarchal family law and women's growing importance as wage earners in an industrial economy, and the irreconcilability of the constitution's promise of equality and the legal authority of husbands over wives. Feminist reformers also argued that it was essential to ensure that married women who did not go out to work, who were "just housewives" (nur Hausfrauen ), also

were granted equal rights. This was vital because only marriages between equals would be stable, and, as liberal politician and feminist activist Marie-Elisabeth Lüders argued, because "the work that the wife does in the home is comparable [in value] with work for wages." The woman who did not work a double shift still deserved full recognition for the endless day that she did put in at her workplace in the home.^[25] Sustaining the "Herr im Hause" ideology of the Civil Code was at odds with the ideal of marriage as a union "of two comrades, equal in worth and individual responsibility."^[26] At the annual meeting of the professional association of German lawyers (Juristentag) in 1931, where reform proposals took center stage, a male lawyer from Munich condemned a Civil Code that granted husbands not only rights of "rule by emergency decree but also dictatorial powers."^[27]

Throughout the Weimar years, the Center party resolutely rejected all reform initiatives introduced in the parliament by liberal and socialist representatives. Despite its attempts to become a broad-based interconfessional party, the Center remained largely dependent on a Catholic electorate and the support of church and clergy; political Catholicism opposed any progressive reform of the Civil Code. Allied with the rightwing German National People's party on many issues affecting the "cultural order" (Kulturordnung ), the Center condemned all measures that would ease restrictions on divorce or undermine a hierarchical marriage relationship justified by scripture and grounded in a "natural order" deemed "prepolitical."^[28]

Critics also invoked the alleged excesses of the Russian Revolution to justify forceful defense of the status quo. As one German National representative warned, even easing restrictions on divorce, far short of overturning the entire Civil Code, would reduce marriage to "legally recognized concubinage." It followed logically that "if marriage is bolshevized and reduced to concubinage, the family will be destroyed."^[29] The alliance of political Catholicism and the conservative right ensured that in Weimar specific proposals for altering the Civil Code never moved beyond the level of debates among lawyers, feminists, and a handful of parliamentarians.

With the Nazi seizure of power in 1933, emergency decrees were exploited to justify the dictatorial powers of the National Socialist regime; the "rule by emergency decree" and the "dictatorial powers" of private patriarchs also remained in place. Indeed, patriarchy received a fresh coat of ideological justification, because a wife's obedience to her husband was deemed analogous to the nation's obedience to its Führer .^[30]

Ironically, the Nazis introduced some measures to make divorce easier, which had been proposed by liberal and Social Democratic reformers in Weimar. But these were not justified by the desire to increase a wife's rights within marriage. Rather, Nazi initiatives were part of a larger vision in which marriage served a specific function for the racially defined "national community" (Volksgemeinschaft ). As with laws that introduced racial and eugenic criteria for marriage, the good of the state was also primary in the criteria for divorce. In Hitler's formulation, marriage was "no end in itself; rather it must serve a greater goal, that of expanding and sustaining the nation."^[31] The Nazis' racialist, biologistic, pronatalist intention could hardly be stated more clearly; women's bodies, subordinated to men by the Civil Code, were also subordinated to the expansionist needs of the Volk .

Husbands and wives who confronted irreconcilable differences in their relationships or who had lived apart for three years or more should be permitted to divorce; such marriages were not the unions that would provide the Third Reich with its next generation. The Nazi marriage law of 1938 thus aimed not at recognizing the rights of individuals to shape their own lives but rather at the subordination of a married couple's interests to the state and the designation of reproducing the race as a wife's primary responsibility.^[32]

This long prehistory of debates over women's equality and family-law reform before 1933 and the abrupt termination of this discussion in the Thousand Year Reich framed the Parliamentary Council's treatment of women's status in postwar Germany. For Selbert, the stages of the debate also marked important milestones in her biography, and it was perhaps this intersection of personal history with political principle that led her to believe that no one would object to guaranteeing women's complete equality in the Basic Law. She was in for a surprise. Even Frieda Nadig, Selbert's only female comrade in the SPD delegation, at first joined many other Social Democrats in fearing that an unequivocal commitment to equal rights would have drastic, unforeseeable consequences because it would necessitate the immediate reform of the outdated family law; such reforms were ultimately essential, but she feared that moving too fast might create a "legal chaos" of enormous dimensions. Nadig counseled patience; the Parliamentary Council could not expect to do everything at once.^[33]

Selbert ultimately overcame these reservations within her own party and forcefully demanded the unconditional constitutional guarantee of equal rights for women; the Basic Law's guarantee of equality was es-

sential and should provide the foundation for the thoroughgoing reform of the Civil Code. She sought to complete Weimar's unfinished business, but she also focused on the immediate context of the "woman, who during the war years stood atop the rubble and replaced men at the work-place, [and] has a moral right to be valued like a man." All "ifs, ands, and buts" must be eliminated, Selbert emphasized, particularly given the Frauenüberschuss , which, she calculated, left "170 women voters for every 100 men . . . and made the voice of women as voters . . . decisive for the acceptance of the constitution."^[34]

The explicit guarantee of women's equality was also essential because of other lessons from the Thousand Year Reich. Selbert's colleague Bergsträsser explained his "insistence about [mentioning] women, because whenever the bureaucracy confronts a so-called emergency, it always thrusts women into the corner. If there are firings, it is women who get fired. If the universities restrict admissions, it's women who get shut out."^[35] The Basic Law must provide a clear mandate for the elimination of all forms of institutionalized discrimination against women; discriminatory measures had found their clearest expression in the misogynistic policies of the Nazis, but they were also apparent in renewed discussions of "double-earners" in the wake of currency stabilization and a much tighter labor market.^[36]

The SPD's arguments faced opposition from both the CDU/CSU and the FDP. Most troubling to critics of the SPD's demands for explicit guarantees of women's equality were the implications of such guarantees for the reform of the Bürgerliches Gesetzbuch; on this score, Free and Christian Democrats were united. Although within the ranks of the postwar FDP were Marie-Elisabeth Lüders and others who had led the campaign for a reform of the Civil Code during the Weimar years, they were not included in the FDP's small delegation to the Parliamentary Council.^[37] Rather, Thomas Dehler, the leader of the Bavarian FDP and the party's chief legal expert, who would become justice minister after the first national elections in 1949, expressed concern that grounding women's equality in the Basic Law would imply that the Bürgerliches Gesetzbuch was unconstitutional. The FDP did not deny the need for a reformed family law, but Dehler argued that it would be precipitous to endorse constitutional measures that made reform mandatory before all implications of such action had been carefully assessed.^[38]

The CDU/CSU shared Dehler's fears about the legal vacuum potentially created by declaring key parts of the Civil Code unconstitutional and argued for limiting equality to the "rights of citizens," which did

not automatically extend to private affairs. The Parliamentary Council's authority did not include the authority to "jettison and declare null and void regulations affecting marriage and the family" that had been in effect for nearly fifty years.^[39]

The conservative coalition also stressed that a language of unqualified equality would violate the natural boundaries of male-female difference. Complete equality would necessitate such unconscionable acts as conscripting women into the military or labor service in time of war. Behind such visions was an implicit reference to Nazi policies and a rejection of the forced mobilization of women into exclusively male occupations in the Soviet-occupied zone. Legislating guarantees of women's equal rights created the possibility of such abominations.

Equality, according to the CDU/CSU, should not erase "those nuances created by nature, which require a different treatment." Although the coalition never offered any single view of what constituted nature or how these nuances were defined, Hermann von Mangoldt, a Christian Democratic representative from Schleswig-Holstein and an eminent legal theorist, offered one alternative. The examples he chose to illustrate this abstract principle indicated that certain ideological persuasions that had flourished in the Third Reich had survived Allied bomb attacks. "Mentally less well-endowed children" and the "mentally ill," argued Mangoldt, were groups that required special schools and treatment. Other examples included "the gypsy, who wanders around [and] can be subjected to certain, special legal regulations." Or in the case of the United States, Mangoldt uncritically observed, the dominance of the intellectual legacy of the French Revolution prompted public declarations of full equality. "But essentially," he maintained, "suspended above all laws in the United States is the idea that we cannot and will not ever permit ourselves to be flooded by a foreign race [von einer fremden Rasse überfremdet werden ]." Such laws sought not only to block the threat of the "black race," but also to achieve a positive agenda; their purpose was to "preserve the dominance of the nordic race in the USA." Putting such regulations in place confronted lawmakers with practical problems; such objectives could not be admitted openly. Still, Mangoldt maintained, pursuing them was essential.^[40]

Coming little more than three years after the destruction of the out-spokenly racialist regime that had subordinated gypsies to very special regulation indeed and that had broadly defined mental illness to include many whose insanity was to oppose National Socialism, Mangoldt's analogies are jarring.^[41] In the context of the debate over equal rights for

women, moreover, they indicated that for him the natural differences between women and men were to be equated with immutable racial characteristics that required and justified special legal treatment. Sexual difference—like race and ethnicity for Mangoldt—was natural, immutable, and the cause for special legal provisions. The proclamation of complete equality for women would make this impossible and would present an immediate challenge to the special treatment of pregnant women or the necessary prohibition of women from certain jobs not suited to their constitution.

Problematic as well was the question of how far the Basic Law should go in stipulating equality's dimensions in the workplace. This issue created some unexpected alliances. If they could agree on little else, the CDU's Helene Weber and Heinz Renner of the KPD were united in their insistence that equal rights must include equal wages for the same work.^[42] Weber was a veteran of Weimer politics, a former member of the Center party with a history of activism in Catholic social-work organizations. It was perhaps her experience with working-class families in which women sought employment to support themselves or to supplement inadequate male wages that had convinced her that women should be guaranteed equal wages for performing the same tasks as men.

The SPD also advocated securing wage equality in the constitution, arguing that women's increased labor-force participation in the post-war world made this a high priority. Nadig pointed out that such explicit assurances would represent a "fundamental change . . . for the vast majority of women, who do not get their rights within the economic arena." Women's demands for such an explicit commitment to wage equality also represented a response to similar measures proposed by the Socialist Unity party for the East German constitution, where they built on legal prescriptions introduced by the Soviet occupying forces after the war. Although Nadig conceded that assurances of wage equality in the East might well remain paper promises, she emphasized that discussions of women's status in the Soviet zone inevitably stimulated interest in similar questions in the West and intensified demands that the "Basic Law accommodate the present."^[43]

Most of Weber's colleagues in the conservative coalition did not share her enthusiasm for instituting constitutional guarantees of equal wages. Mangoldt feared that such measures would open the door to special pleading "from every corporate estate [Stand ] and every group of people who will ask the same question: Where are [our interests]

considered?"^[44] For him, biology constituted well over half of the German population as an interest group with parochial concerns. Moreover, the extension of the Basic Law to contractual relations in the work-place would mean the Parliamentary Council's intervention into the "social order" (Sozialordnung ), that nebulous arena that all agreed could not be adequately regulated in the Basic Law's language of abstract fundamental rights. Ultimately, the SPD accepted this logic and agreed that an unequivocal language of equal rights would implicitly extend to all facets of women's lives, including their work outside the home.^[45]

Despite agreement on this question, major areas of conflict remained as draft proposals made their way through subcommittee debates. The implications for the Civil Code of prescribing women's equal rights continued to spark particularly intense opposition to the SPD's stance. In the committee assigned to make specific recommendations, the conservative coalition together with the FDP commanded the two-vote margin sufficient to defeat proposals for a language of unqualified equal rights.

The majority rejection of the SPD alternative in early December 1948 prompted a wave of petitions, which dramatically amplified Selbert's voice. Public opinion, which registered relatively little elsewhere in the debates of the Parliamentary Council, weighted in decisively against the CDU/CSU's and FDP's unwillingness to accept the SPD's straightforward formulation that "men and women have the same rights." From bourgeois and socialist women's organizations alike, the message was the same: the constitution should include a specific acknowledgment of women's equality with men in every respect.

While they emphasized that "no paragraph in a constitution alone could guarantee women the equality—economic and political—for which we must struggle in practice," women trade unionists in Hessen responded with anger and disbelief that parliamentarians in Bonn had not endorsed full equal rights for women.^[46] In the name of "40,000 organized female metalworkers" in the British zone of occupation, Margarete Traeder exhorted the Parliamentary Council to create a meaningful basis for the economic and political equality of women.^[47] The women's committee of the German Dunlop Rubber Corporation in Hanau insisted that "it is impossible to conceive of a reconstruction of Germany that will not include a role for women's assistance." They rejected the continuation of the "unworthy status that women have had for centuries" and demanded "that the Parliamentary Council in Bonn give us women the status to which we are entitled on the basis of economic

conditions."^[48] Equally unambiguous was the message from a range of bourgeois women's organizations that had emerged after the war. Their petitions also underscored the need for the thoroughgoing reform of the Civil Code, which would follow necessarily from the constitutional guarantee of equality.^[49]

Even more forcefully than SPD representatives, Dorothea Groener-Geyer, head of an alliance of women's organizations in Stuttgart, linked women's experience in the war and postwar years with demands for equal rights:

After Stalingrad, there is no aspect of life in which the actions of German men have protected German women from want, misery and poverty. After our men fell victim to the obsession of a man and followed him from Berlin via Paris to Stalingrad and then back again, and did not have the energy to contain the delusion of power of that obsessed individual, thus gambling away the sovereignty of our state, leaving our cities in ruins, destroying our homes, and leaving millions homeless and with no basis for their existence, the equality of women has been accomplished de facto. Nothing human or inhuman is foreign to her any longer; she has been spared no terror. This reality places demands on the physical and spiritual power of women, which far exceed anything that women of earlier generations ever experienced, suffered through or accomplished.

The consequence, concluded Groener-Geyer, was obvious: women must be ensured equal rights with men. Arguments that women would have to pay for equality by sacrificing essential protective legislation showed only that the "bourgeois parties" were grasping at straws to deny women their due. Women need not fear this potential loss, argued Groener-Geyer: "Through our legally guaranteed equal participation in the legislature [and] the government . . . we would prefer to learn how to protect ourselves."^[50]

The massive negative response to the Parliamentary Council's preliminary recommendation prompted the CDU/CSU and FDP to retreat hastily when debate over women's equality with men resumed in January 1949. Those speaking for the conservative coalition declared that they had never meant to challenge the principle of equal rights for women and scrambled to clarify their position. Some continued to maintain that those who questioned legislating complete equality were those who "most zealously protect woman's honor . . . [and] seek a Christian foundation for our politics, because in our Christian religion, woman's honor is legitimized in a unique fashion," but the coalition acknowledged that its failure to move in the SPD's direction would leave it vulnerable to attack from the left in upcoming national elections.^[51]

Walter Strauss, a CDU representative from Hessen, now insisted that there could be no doubt that his party supported full equality for women. He conceded that the CDU "committed an error and then we repeated it—and not just the lawyers among us: we saw things too legalistically and not politically enough." With this myopia corrected, Strauss, echoing categories first introduced by Selbert, emphasized that when women had replaced men at the workplace during the war and in the postwar years they had also continued to carry responsibility for children and for the management of the household; after this experience, they had proven their complete equality with men. However, the CDU still proposed appending the prescription of women's "equal responsibility" to unrestricted "equal rights." Rechte —rights—and Pflichten —obligations—went hand in hand; if women were granted one, they must assume the other.^[52]

The FDP's Theodor Heuss, soon to become the new Federal Republic's first president, was no less eager than Strauss to deny that his party had ever opposed equality for women. Free Democrats' hesitancy to endorse complete equality, he insisted, reflected only their fears that an undifferentiated language could be employed to women's disadvantage, by denying women spousal support in cases of divorce, for example. While Heuss still expressed concerns about such matters, his remarks made clear that the FDP understood the public outcry and acknowledged similar protests from women within the party's own ranks, who forcefully reminded the delegation to the Parliamentary Council that "for us women the question of equal rights, one might almost say, is a vital existential question."^[53]

Disclaiming any responsibility for orchestrating extraparliamentary support, an exuberant Selbert credited the "storm outside in the realm of public opinion" with forcing the CDU to revise its position from a "yes, but" to an "unqualified yes." Still, while welcoming this change of heart, Selbert rejected the CDU's proposed alternative of coupling equal rights with responsibilities, because the overwhelming majority of petitions had favored the SPD's unconditional formulation. In addition, the war had provided painful evidence that an insistence on "equal responsibilities" could justify women's mobilization in ways that exceeded her "physical constitution"—"behind the searchlights for anti-aircraft guns, behind the guns, or in the hail of bombs." It could also be used to deny spousal support to divorced women who had not worked outside the home during their marriages and whose ex-

husbands might claim that equal responsibility included immediate economic self-sufficiency.

Selbert vehemently dismissed CDU/CSU charges that her party's conception of equality excluded a recognition of sexual difference and the need for special treatment of women in some situations. Women could be different from men and still be their equals, she explained, because "equality of rights is founded on an equality of worth, which acknowledges difference."^[54] Her position articulated crucial aspects of the postwar SPD's view of the relationship between women's "nature" and women's rights; behind this careful formulation was the intention of Selbert and the party to distance themselves decisively from any association with the theory or practice of the SED. It marked off important ideological ground for the SPD in its response to the "woman question," and it defined a position that would be invoked repeatedly in the political discussion of women's status in the fifties. Properly understood and enforced, equality would not lead to Gleichmacherei , the bogey of an arbitrary leveling of difference conjured up by CDU/CSU critics, who argued that it was this sort of equality that existed in the Soviet zone. There, they charged, the "mechanistic" implementation of equal rights served only to emancipate women to work alongside men in all jobs. As the example of the Soviet Union made clear, this false conception of equality left no room for "the biological basis and the spiritual posture of women."^[55]Gleichmacherei would lead to the destruction of the family, as women were compelled to work in occupations for which they were unsuited, and would deny women the possibility of fulfilling their obligations as wives and mothers. But such fears were totally unfounded, Selbert countered, because the SPD's conception of equality shared nothing in common with communistic leveling.

Rather, in terms of the line consistently advanced by Selbert and other Social Democrats in the late forties and fifties, equality did not mean that women and men should be alike in all respects. For example, women should have the right to pursue wage work, but the many married women who might choose not to work outside the home must not be considered inferior to their husbands, explained Selbert, because "the husband's obligation to support [the family] is the equivalent of the wife's obligation to educate the children and run the household, in short to perform sociologically valuable labor. . . . [T]he work of the housewife is sociologically of the same worth as the work of the woman employed [outside the home]."^[56] To be sure, sociological function did not

draw the same line between women and men as the difference in the blood described by Mangoldt. But for Social Democrats, separate could be equal.

By emphasizing the importance of female difference, Selbert also claimed to distance herself and her party from "women's righters," bourgeois feminists often dismissed with the term of opprobrium, Frauenrechtlerinnen . According to Selbert, the women's righters, unlike the SPD, claimed that women and men should be equal because in no crucial respects were they different.

On this score, Selbert protested far too much; she resolutely rejected a position that was represented by no one at the Bonn deliberations, nor, for that matter, by any part of the German bourgeois women's movement. The brand of Anglo-American feminism that advocated that sexual differences between women and men were of no social or political consequence and that equality should be based on the common humanity of women and men had never found a substantial audience in Germany. In the categories of the German bourgeois women's movement, emancipation had consistently meant emancipation of a particular womanly nature. By allowing women to employ their uniquely feminine capacities, their "spiritual motherhood," equality would permit them to participate in a general process of progressive social transformation. Male virtue and behavior should not become the standard for measuring female worth.^[57]

However, Selbert's misrepresentation of the ideology of the bourgeois women's movement served an important purpose for her party. If the SPD was at pains to distinguish itself from "communist levelers," it also sought to keep the middle-class women's movement at arm's length. Selbert clearly echoed directives from the national Social Democratic leadership that women in the party had no business pursuing cooperation with bourgeois women's righters. This forceful reminder took on particular significance precisely because postwar initiatives for the creation of a broad-based women's coalition "above the political parties" had found some recruits within the SPD. Supporters of these "women's caucuses above parties" argued that "women's will" and "women's opinion" could emerge only in an autonomous women's organization, affiliated with no single party.^[58]

Although it stopped short of forbidding its members from endorsing such steps, the postwar SPD leadership left no doubt that it disapproved of any deviation that resulted in cooperation with a cross-class, nonpartisan women's movement. Memories of the deep division between so-

cialist women and the League of German Women's Associations in Weimar remained vivid. According to the SPD's own figures, more than seventy percent of participants in the party's first postwar women's congress had been politically active before 1933;^[59] many of them had experienced direct or indirect persecution by the Nazis because of their political beliefs, lending a particularly charged emotional import to accusations that bourgeois women's organizations had all too readily and enthusiastically found a common ground with National Socialism. The long-standing conviction that for women in the SPD, bonds of class identity were far stronger than those defined by gender combined to maintain the distance between bourgeois and socialist women's groups after 1945.

In a characteristic attack, Herta Gotthelf, the highest-ranking woman in the SPD's postwar leadership, dismissed those "ambitious people who are afraid of doing the tedious work" within the party and found their "element in these little clubs." Things were no different than before 1933; any appearances to the contrary, explained Gotthelf, reflected only the "lack of clarity and confusion of our times, and it is our task to make sure that clarity comes into [women's] heads, not more confusion."^[60] Clarity was certainly not to be found at the meetings of the "women's caucuses above parties," where, according to one disdainful eyewitness, "the soft voices, the soft satin curtains, and the warmth of the preceding May days that still hung in the air left more and more listeners with their heads nodding. . . . Patience and tolerance, responsibility for life." These were the anodyne messages conveyed by bourgeois feminism, hardly the Social Democratic vision of women shoulder-to-shoulder with working-class men in a common struggle to build a new Germany.^[61]

For women who were socialists, insisted the SPD's female leadership, the struggle for women's rights was a struggle to be waged "together with our comrades." The first postwar issue of the party's newspaper for women made clear that "we are no 'women's righters,' either of the old or new sort." For loyal socialists, there could be no "woman question" distinct from the larger social and political questions confronting the party. Answers lay not in organizations "above the parties" but exclusively in a "democratic, socialist Germany in a democratic, socialist Europe."^[62] Lest there be any doubt where she stood, Selbert reassured her comrades in the Parliamentary Council that "in the thirty years that I have been politically active, I have never been a women's righter, and I will never be one."^[63]

Still, though Selbert and other leading women in the SPD warned of the limits of postwar political initiatives of middle-class feminists in practice, their emphasis on the compatibility of sexual difference with equality left them quite close to bourgeois feminism in theory. In crucial respects, Selbert's insistence that a woman's political participation should be in accord with her "particular nature" and that only the "synthesis of male and female qualities" would bring political progress represented nothing new in the SPD's response to the "woman question"; from the 1880s on, socialist feminists had insisted that a woman's emancipation would not be achieved by forcing her to become like a man or by denying the significance of sexual difference. But missing from the SPD's postwar analysis of gender relations were other mainstays of Social Democratic theory, notably a belief in the relationship between women's status and stages of economic development; the SPD's critique of women's subordination was no longer firmly grounded in historical materialism. Absent as well was any trace of socialist theories that "socially productive labor" outside the home was the key to female emancipation and the basis for establishing working-class marriages between equals.^[64]

Rather, reflecting the position of the postwar party leadership, Selbert maintained that although equality must include a woman's right to work, by no means should the achievement of emancipation and equality be contingent on women's employment. This lay behind her insistence that socially productive work for wages was not superior to women's socially re productive labor in the home. Neither communist nor women's righter, Selbert articulated the party's position when she staked out a terrain where difference—defined by "sociological" function and the "natural obligation [of women] as mothers"—was completely compatible with women's equality. This shift in emphasis was significant; in its view of women's rights, it left the SPD far closer to Marie-Elisabeth Lüders and many other bourgeois feminists than to August Bebel, Friedrich Engels, and Clara Zetkin. Herta Gotthelf might remind women organized in the SPD that "the best woman's book is still Bebel's Woman and Socialism ," and welcome a new postwar edition of the Communist Manifesto , but in the party's official answer to the "woman question," these classics were being deployed selectively if at all.^[65]

An equality in which separate spheres were equal, Selbert argued, still necessitated a thoroughgoing revision of the existing family law. Revision was the unavoidable consequence of Article 3, as feared by Dehler

and Mangoldt, but Selbert assured her colleagues that it should not be a cause for dismay or anxiety. The patriarchal order underwritten by the Bürgerliches Gesetzbuch was inconsistent with a new Germany's commitment to the equality of all its citizens; the Civil Code was long overdue for a complete overhaul. The constitutional guarantee of women's rights provided the legal basis for the claims of unmarried women to equality. However, the existing family law still left married women subordinate to their husbands.

Marriage was, Selbert affirmed, "an association for life that is of a particular nature [in which] . . . [t]he egos [of both partners] have to be subordinated to higher objectives."^[66] Nonetheless, marriage must be based on the equality of husband and wife, and laying the proper foundation required a reform of family law. Completing that project would take time, and the Parliamentary Council stipulated that the Bundestag would have until 1 April 1953 to do the job; this was laid out in the Basic Law's Article 117. Should it fail to meet the deadline, the Basic Law's provisions would automatically go into effect as the law of the land; women and men would have equal rights in all parts of their lives, and existing laws that violated these constitutional provisions would be null and void. While some CDU representatives shared Adolf Süsterhenn's view that falling behind this schedule would lead to "circumstances of complete lawlessness,"^[67] the Parliamentary Council in Bonn accepted Social Democratic arguments that setting a deadline was the only way to ensure that equality in principle would become equality in practice; four years seemed adequate to the task.

In mid-January 1949, the Parliamentary Council adopted a prescriptive formulation of the equality of women and men, which had been totally absent in the initial draft; delegates voted unanimously to incorporate into the Basic Law a pledge that "men and women have the same rights." All could agree that equality would not erase difference; all accepted that a conception of equality "which acknowledges difference" should be law.

As the debates over Article 3 made clear, any discussion of women's rights immediately raised questions about the family. The discussions of the Basic Law's Article 6, specifying parental rights and obligations and the constitutional protection of marriage and motherhood, showed that any discussion of the family automatically raised questions about women's rights. It was not subject matter alone that linked these two issues in the minds of representatives to the Parliamentary Council. Debates

over both provisions involved largely the same party political personnel, and the most extensive discussions of both took place during early December 1948.

Before setting out to define the particulars of the Grundgesetz, the political leaders in the Parliamentary Council agreed that the catalog of basic rights should not touch upon specific social and economic policies or the structure of the "cultural order" (Kulturordnung ). Cultural policy was to remain the preserve of individual state governments. Tabling social and economic concerns until a later date was justified because of the provisional nature of the Basic Law, and it was this agreement that in part had been used to exclude any explicit language on wage equality from Article 3. It also made it easier for the political parties to skirt the particular interests of their organized constituents—in the case of the SPD, of the trade unions, and for the CDU/CSU and Center, of a range of Catholic lay organizations. Finally, it allowed both SPD and CDU/CSU to postpone choosing among competing conceptions of the social order until some future date, by which time each anticipated an electoral advantage over the other.^[68]

When it came to discussions of the family and parental rights, this agreement collapsed under heavy pressure from many church-related associations and the direct intervention of Cardinal Josef Frings, Archbishop of Cologne and spokesman for the Fulda Conference of Bishops, which had successfully mobilized lay organizations within the Catholic Church around this issue. As in debates over Article 3, when women's organizations had become involved, public opinion intervened forcefully in the Article 6 deliberations in Bonn. This time, however, the public opinion of church-based organizations demanded not an expanded notion of women's equality but rather incorporation into the Basic Law of specific guarantees of parental authority and the integrity of the family (see figure 13).^[69]

Championing the Cologne archbishop's position in the Parliamentary Council were Helene Wessel, one of the two Center party delegates, and Adolf Süsterhenn and Helene Weber from the CDU. Wessel, trained as a social worker, had served as a Center delegate to the Prussian state legislature from 1928 to 1933, when she was in her early thirties. Active in the reestablishment of the Center after 1945, she came to Bonn with the singular intent of ensuring that the rights of parents, grounded in a prepolitical religious order, be built into the constitution as basic rights and thereby be removed once and for all from the wrangling of political parties. Although the Center party had only a nominal political pres-

ence in the Parliamentary Council, it is hardly surprising that on this issue—a mainstay of Center politics since the party's origins in the 1860s—Wessel would claim an authoritative position.^[70]

Süsterhenn, like Selbert, had studied law in the twenties, though his academic path had not been circuitous. One of the youngest representatives in Bonn, born in 1905, he was politically initiated in Weimar in a circle of students and intellectuals who advocated a political activism informed by Christian scripture and social theory. His legal career under the Nazis included the defense of some clerics and other religious leaders charged under National Socialist law. With the war's end, he became active in Christian Democratic politics in Rheinland-Pfalz, serving as both justice minister and cultural minister in that state's early governments. He was recognized as one of the leading constitutional experts in the CDU/CSU delegation to Bonn.^[71]

Weber, a former schoolteacher, had received political Catholicism in the cradle; her father, also a teacher, had led the local branch of the Center party in the Ruhr city of Elberfeld in the late nineteenth century. A key figure in the Catholic Women's League before and during the First World War, Weber took over leadership of a church-run school for the instruction of social workers. She entered national politics in Weimar as a member of the Weimar National Assembly, the Prussian state parliament, and beginning in 1924, the Reichstag. Head of the women's caucus within the Center and after 1925 a member of the party's national steering committee, she was among the handful of women who played a direct role in Center politics at the national level in the twenties. She was also a Prussian civil servant, and in 1920 she became the first woman employed at a senior level (Ministerialrat ) in the state's history, serving in the Ministry of Welfare.

Weber had been outspoken in her opposition to the Nazis, whom she perceived to be no less a threat to Christianity than the communists. In the last years of Weimar, she had counseled Catholic women voters to avoid extremes of right and left and to support the Weimar state. In the summer of 1933, the National Socialist regime retaliated, labeling her "politically unreliable" and dismissing her from her position in the Prussian state government. She continued to work as head of a professional association of Catholic women social workers, a position she occupied throughout the Thousand Year Reich. Bombed out of her Berlin apartment in 1944, she spent the last war years in Marburg with her sister.

After resurfacing in the Rhineland at war's end, Weber worked to rebuild the organization of Catholic social work agencies and to found the

CDU. Although not a member of the first state parliament in North Rhine–Westphalia, she was chosen by the CDU faction in that state to serve in the Parliamentary Council, probably at the behest of the faction's leader, Konrad Adenauer. Her close personal ties to Adenauer also extended to his wife, who was among Weber's students before the First World War. Sixty-seven when she came to Bonn and never married, Weber would later earn dubious distinction as "Mother of the CDU Faction" during the Adenauer era.^[72]

Both Weber and Süsterhenn had close ties to Frings and his representative in Bonn, Wilhelm Böhler, who had been active in Catholic school politics in the 1920s. With vocal support from Wessel, Weber and Süsterhenn represented that part of the CDU/CSU that was committed to a vision of Christian politics as the basis for postwar reconstruction. According to their view, any political system must be founded on a "natural law" (Naturrecht ) that stemmed not from the rationalism of the Enlightenment but from a prepolitical order ordained by God and prescribed by scripture. The catastrophe of National Socialism was the consequence of a deviation from these principles, which could be traced back to a process of secularization that began with the French Revolution. In categories that had shaped conservative thought since the nineteenth century, Süsterhenn depicted socialism as the product of the political individualism unleashed by 1789 and the economic liberalism that had spawned an industrial society. Industry created an industrial working class and a materialist socialist political movement. By destroying individualism and glorifying the collective, socialism, in turn, had helped to clear the ground for National Socialism. Both Socialism and National Socialism shared a commitment to a "naturalist-biologistic materialism" that had reached its epitome under the disastrous Nazi dictatorship; both denied the significance of religious belief and suppressed the church; both elevated the interests of the collective above the interests of families.

In the formulation of the CDU's statement of principles adopted in Cologne in 1945, a return to "Christian and occidental human values that once ruled the German people and made it great and respected among the people of Europe" was central to this vision of Christian politics.^[73] The destruction of the Third Reich cleared the ground for rebuilding Germany on a Christian basis and reversing the lengthy secularization process. The other alternative, represented by developments in the Soviet-occupied East, was just as deplorable as National Socialism. The CDU/CSU called for rejecting "dictatorship and collectivism in all shapes and forms"^[74] and guaranteeing survival of the community of be-

lievers, the Church, and, most importantly, the family, society's fundamental building block. These prepolitical institutions were worlds apart from the communities embodied in communist or National Socialist collectives.

"The family," explained one of the CDU's earliest declarations of political principles, "is the fundament of the social organization of life. Its living space (Lebensraum ) is holy." Restoring the sanctity of this Lebensraum after Nazi attempts to invade it was an essential task for the state in a postwar German political order. "A nation is worth only as much as the value it places on the family. . . . National Socialism had much to say about the German family, but in reality, it did everything possible to tear it apart." The Nazis had inverted the natural order; instead of putting the state in the service of families, they had attempted to force families into the service of the state. In a new Germany, everything possible must be done to reverse this deplorable development, to support and promote the family.^[75] Such demands echoed Center party platforms from the Kaiserreich and Weimar, but against the background of the intense debate over "mother-families," "incomplete families," "family ruins," and high rates of divorce and unmarried motherhood, after 1945 they took on an immediate relevance. It was the task of postwar politics to counter these unnatural trends and to restore the proper "order of life" (Lebensordnung ).

These priorities were behind the insistence of Süsterhenn, Weber, and Wessel that the family be explicitly acknowledged in the Basic Law. In Weber's formulation, "The family belongs to the natural forms of association . . . [and] it cannot be compared to economic or social associations. The family is the basis of all associations, of the existence of the nation and the state."^[76] For Wessel, marriage and family constituted the starting point for an ordered society, the foundation on which the "construction of our state and social community can begin."^[77]

The nature invoked by Weber was defined not by biology or social function but by a divinely endowed order, which predated all political institutions and to which the state must accommodate itself. The rights of the family set limits to the authority of the state; it was the responsibility of the state to guarantee the survival of this natural institution, to afford it "particular protection." Like other fundamental rights incorporated into the Basic Law, the family was a product of nature, not society.

For the Center, the German party, and the CDU/CSU, there was no question of what constituted a family. It was in discussion of Article 3, not Article 6, that Weber explicitly identified a natural family as one in

which "the wife is free for the life of the family." Weber feared that an increase in women's labor-force participation in the postwar world threatened to chain mothers to other tasks. While conceding that in the unsettled circumstances of the late forties there might be instances where wives earned more than husbands, she labeled such a situation "an unfortunate [case], if the mother leaves the family and the husband stays home and takes care of the children and the wife as well." This was a "development good neither for the wife nor for the husband nor for the children. These are exceptional circumstances that we would gladly change."^[78] For Weber's colleague, Mangoldt, such a scenario was unimaginable, and he expressed utter astonishment at the prospect of men caring for children.^[79]

Protecting families in the postwar world implied eliminating social threats to nature and reestablishing families on the basis of a male wage sufficient to support a dependent wife and children. As one of the CDU's earliest postwar programmatic statements put it, "The husband must be the head of the family in a complete fashion." In order to achieve this, it was the state's responsibility to ensure him the opportunity "to provide for his family with honor. . . . Only then will the wife as the heart of the family be able with inner freedom to carry responsibility along with the man and to become the responsible wife for his children."^[80] In postwar Germany, the conditions that prevailed did not allow this; it was the Parliamentary Council's responsibility to restore an order in which this was possible.

In the categories proposed by the conservative coalition, "Marriage is the legal form of the lasting association for life between husband and wife and the family that comes out of [that union]." Marriage , not cohabitation (Konkubinat ), should be protected by the law. Although the CDU/CSU was ultimately willing to accept that parents with adopted children might also constitute a family and that some married couples might be a family while choosing to have no children at all, it was self-evident that for Christian Democrats, nature intended other things. Because a specific family form was preordained, children born outside such a union could not be on the same legal footing as those who benefited from it. The differentiation between legitimate and illegitimate children implied a differentiation between the legal status of those children's mothers, and between legal marriages and the unnatural unions that produced illegitimate children. All children and all mothers deserved the state's protection, but only the "family association" conformed to the natural order. "Even if we wanted to," explained Wessel, "we could not

place the illegitimate child on the same footing because we . . . start from a different concept of order." Because illegitimate children "are not born into families," Weber added, they could not claim equal status.^[81]

The SPD's Frieda Nadig, a regional secretary of Arbeiterwohlfahrt , the working-class welfare organization established by the party in 1919, and a member of the North Rhine–Westphalian state parliament, was quick to point out that this view of the family amounted to a denial of social reality in postwar West Germany. Drawing different conclusions than Weber and Wessel from her social-work experience, she emphasized that in many families, children were not growing up in "association[s] for life between husband and wife." Nadig reminded her colleagues that in debates over Article 3, they had acknowledged "the surplus of seven million women, which we now have. If we consider that it is primarily women between 22 and 45 who constitute this surplus of women, then we know that an extraordinarily altered form of living together (Lebensgemeinschaft ) will emerge. We must take into account that in the future we will have a mother-family." The consequences included a far broader definition of what constituted families, the need to ensure the legal equality of legitimate and illegitimate children, and a condemnation of the "theological preconception [and] Christian world-view" that relegated unmarried motherhood to a second-class status. The existence of large numbers of single women who would pursue their "natural calling as mothers" outside of marriage made clearer than ever that traditional views of the family belonged to the past.^[82]

Selbert asked rhetorically, "Is bourgeois [bürgerliche ] marriage the only form of living together toward which we should aspire?" Like Nadig, she insisted on recognizing "the new forms of organizing existence demanded by . . . the consequences of the war and economic necessity." While Selbert called for the "protection and maintenance of the bourgeois family," she argued that the " 'mother-family' take its place next to bourgeois marriage." Along with married women, mothers who did not marry deserved full legal rights over their children and the "full protection of the state." In fact, it was precisely unmarried motherhood that was founded on a "high sense of responsibility and qualities of moral character."^[83]

This critique was given a theoretical framework by Carlo Schmid, one of the SPD's leading constitutional experts. Schmid contended that the family was a product not of nature but rather of the legal order. Responding to CDU/CSU conceptions of natural law, he maintained "that generally, everyone typically proclaims that [to be] natural law which

appears best to suit his hopes for life."^[84] As for the definition of a family, Schmid argued that depending on the legal order, "the family is something totally different in each epoch and in every region; different legal consequences can be associated with the same biological and sociological facts."^[85] The law created families, and laws were historical, not natural, constructions. The structure and objectives of the state ultimately determined the structure and function of the family.

Evidence for Schmid's position, argued his colleague, Walter Menzel, could be found in the Soviet Union, an "imperialist nation," which "probably views marriage from the perspective of population policy, military preparedness and imperialism."^[86] Of course, another imperialist nation that had viewed marriage as a breeding ground was Nazi Germany; implicitly, Menzel's example invoked both a communist threat in the present and the National Socialist example in the past. Both represented the horrifying inversion of a proper family policy, and both made clear that families were not natural but rather were the creations of a particular social order.

The CDU/CSU coalition rejected these criticisms. While admitting that postwar Germany was a society in which many legitimate children also might be denied a father, Süsterhenn maintained that "this is not the normal state of affairs."^[87] Putting legitimate and illegitimate children on the same legal footing threatened to do nothing less than "revolutionize completely the existing social and bourgeois law and introduce absolute legal uncertainty in all these questions."^[88] It was not the job of lawmakers to determine "what the natural legal order should be in the foreseeable future. . . . As lawmakers, we do not determine the natural legal order; rather the order, naturally given to us and growing out of nature, is prescribed for us lawmakers as well." Süsterhenn conceded that "in human history and in this and that cultural order, it is possible to identify different conceptions of family," but the natural family invoked by Center, CDU, and CSU was that which existed "within the framework of a Christian-occidental [christlich-abendländische ] or western cultural order [Kulturordnung ], and in this order the family is always conceived of as a self-contained unit."^[89]

As Süsterhenn indicated, for the CDU/CSU the natural family, this "self-contained unit," was a crucial part of a social order that was structuring itself in terms of a larger strategy of containment. Defining the proper sort of family was essential to West Germany's identification with a western order on political and economic as well as cultural levels.^[90] Demarcating the border around the "Christian-occidental"

family was part of the task of fixing boundaries between west and east. According to the conservative coalition, the SPD's proposals for recognizing the rights of illegitimate children came dangerously close to legal provisions in the Soviet zone, and it was absolutely essential that lawmakers in Bonn "consciously distance themselves from the east."^[91]

Behind the CDU/CSU and Center pressure to ground a particular conception of the family in the Basic Law was yet another agenda—the extension of parental rights to include the determination of the religious orientation of schools and the appropriate training for public-school teachers. Like the emphasis on the fundamental natural rights of parents over their children, these demands had been set pieces of Center-party politics since the emergence of political Catholicism in the nineteenth century. However, the necessity of guaranteeing parental rights, explained Weber, was more self-evident than ever after the experience of the Third Reich, "which has increased our sense of responsibility in all such questions."^[92] It was, Wessel reminded her colleagues, "National Socialism that, according to the words of Hitler, wanted to steal children from their parents for the good of the state."^[93] Returning children to their proper place and preventing any similar state intervention in the future meant allowing parents to determine the denominational nature of the schools their children attended. On this issue, moreover, the conservative coalition claimed to bow to overwhelming pressure from church-based lay organizations.

The deadlock between the SPD and CDU/CSU over questions of how best to protect the family and ensure parental rights was ultimately broken by the FDP. Avoiding the question of what exactly constituted a family, Heuss agreed that this form of social organization deserved the state's guarantee of its integrity and inviolability. He also seconded SPD arguments that the Frauenüberschuss would create a situation in which women without husbands might nonetheless want to have children, and that those illegitimate children deserved the full protection of the law. The Basic Law must "realistically acknowledge this." Although initially concerned that a discussion of the family would involve the state in questions of "morality or tradition and biology," Heuss ultimately accepted bolstering the family as part of the "psychological" response of a generation that had experienced the "violation of family life under National Socialism."^[94] Beyond this, guaranteeing the constitutional protection of the family was for Heuss a declaration with no specific content; it was a principle the FDP could support, but its significance was largely symbolic.

Heuss was outspoken, however, in his rejection of extending parental rights to the determination of a school's religious character; here, more than symbols were at stake. While he sympathized with the defensive reaction against the Nazi past "when children were forced into organizations," confessional schools violated the authority of individual state governments to set educational policy. Extending parental rights over schooling had origins not in nature but in the nineteenth-century struggle of political Catholicism to establish state-funded Catholic schools.^[95] To no avail was Wessel's eleventh-hour plea that "no believing Christian, nor a true democrat" would understand rejection of this measure.^[96]

Combined, the forces of the FDP and SPD could defeat the attempt to create the national basis for the introduction of confessional schools. Adenauer, president of the Parliamentary Council and head of the CDU/CSU delegation, counseled abandoning this lost cause lest the conservative coalition create an unbridgeable gap between itself and political liberals in other issues of "cultural politics" (Kulturpolitik ).^[97] Still, a handful of "believing Christians" and "true Democrats" of the CSU and the German party withheld their support from the ultimate ratification of the Basic Law on grounds that it failed adequately to underscore parental rights.^[98]

Heuss and the FDP also favored strengthening the rights of illegitimate children. The forceful opposition of the CDU/CSU to such proposals led to a compromise, which promised all children the "same conditions for their bodily and spiritual development and their status in society" but left it to future lawmakers to determine precisely how this should be realized. While no one disputed that "every mother has a claim to the protection and care of the community," the Basic Law did not specify whether, together with their children, mothers who were not legally married were included among those families guaranteed the state's protection. The Parliamentary Council's venture into the definition of the cultural and social order thus set clear limits to attempts by political Catholicism to reopen the issue of confessional schools, but it also blocked Social Democratic attempts to expand definitions of the family.^[99]

In its final form, the Basic Law prescribed where women belonged in a new Germany. On the one hand, they should be guaranteed full equal rights with men; on the other, they should be parts of families that would constitute the Lebensraum where a new political order would

have its foundations. Much of the Parliamentary Council's discussion of women's status was rooted in Germany's past. Paragraph 2 of Article 3 represented a victory in a historical struggle of the bourgeois and Social Democratic women's movements dating back to the late nineteenth century, carried into the Weimar Republic, and derailed by the Nazis. Article 6 incorporated the Center party's long-standing emphasis on the family as society's most important building block, an ideological theme that also was not new in the postwar period.

However, discussions of equal rights and the protection of families did not simply represent the attempt to pick up where Germans had left off in 1933; in both instances the formulations of the Basic Law also represented reactions to Germany's most recent past, the legacy of war and National Socialism. The promise of equality marked an explicit acknowledgment of women's contribution to sustaining Germany during the war and postwar years. And Article 6 represented a response to the perceived threats to the family's stability presented by the Nazis, the Frauenüberschuss , and the uncertainty of the postwar world.

The family and women's status also clearly emerged as symbols of the distance between the two Germanys. Equality was not to be equated with a "mechanistic" leveling of difference, any more than the community of the family was to be confused with the collective of the East. Equality, properly understood, and families, properly constituted, explicitly set off some Germans from others. To be sure, West German perceptions had little to do with East German realities. The constitution of the German Democratic Republic, adopted in the same year as the Basic Law, emphasized women's full equality with men, and the Law for the Protection of Mothers and Children, passed a year later, cleared the ground for establishing a range of social services for working mothers, dramatically expanded the opportunities for married women's employment outside the home, mandated equal wages for women and men in the same jobs, and outlined affirmative-action programs to increase women's employment in jobs traditionally restricted to men. The policy of the Socialist Unity party, the ruling party in the East, was motivated by labor scarcities that necessitated mobilizing all available workers, but the party was also ideologically committed to the belief that women's entry into productive labor was essential for female emancipation. High rates of women's labor-force participation in the East, however, did not eliminate nuclear families or level sexual difference.^[100] Families were still proclaimed as the fundamental building block of socialist society, and as long as there was no political pressure or explicit legal initiative

to alter the sexual division of labor within the home, it was clear that raising the next generation would remain primarily women's work. Indeed, rather than attempting to reformulate the family, the earliest legislative initiatives in East Germany aimed at stabilizing it and underscored the state's responsibility to achieve this objective. No less than in the west, the family was to constitute a vital Lebensraum , though of a socialist, not a "Christian-occidental," variety.^[101] But for West German politicians, glimpses of East German practice were filtered through the gathering clouds of the Cold War; in this context, it was impossible to see anything in the Soviet zone but the horrifying excesses of totalitarianism.

The debates over the Basic Law reflected that beyond this anticommunist consensus there was agreement across a broad political spectrum that restoring families would create the essential basis for establishing a stable social order. However, there was more than one vision of the form that families might take. The Parliamentary Council stopped short of establishing the Christian natural law foundation for a new Germany sought by Weber, Süsterhenn, Wessel and other representatives in the CDU/CSU and Center party. Early in 1950 the German bishops registered their displeasure that even within the CDU, "a true return to God has not taken place." No less than in the East, postwar West Germans indulged in a "practical materialism" that established economic progress as the only goal and that "seduced the contemporary mass of humanity simply to live it up and enjoy life to the limit."^[102] Erhard's "social market economy" was in this world and of it. Reflecting more specifically on the work of the Parliamentary Council, Hermann von Mangoldt also regretted that the CDU/CSU had failed to establish marriage as the only "legally recognized form in which women and men live together," and he was troubled by a "certain reluctance to decisively reject extramarital [forms]."^[103]

Both Mangoldt and the bishops could take heart, however, in the fact that by elevating marriage and the family to the status of prepolitical institutions the Parliamentary Council had resisted pressures to "get rid of monogamous marriage" and had ensured the moral alignment of West Germany with the "occidental [abendländische ] world."^[104] This was a clear victory for advocates of one view of a natural order, where families stood beyond history and politics, where women and men had unambiguous roles.

This Christian conception of the family prevailed over the alternative vision of the SPD, according to which nature changed over time, and

laws and politics shaped families, not families the law and the political system. In the debates of the Parliamentary Council, Nadig, Selbert, Schmid, and others within the SPD had maintained that there was no timeless family nor prepolitical natural law. But demands from within the SPD for recognizing "mother-families," "an extraordinarily altered form of living together," and the rights of women to bear and raise children outside of marriage did not register in the Basic Law. For the majority, these aspects of social reality were symbols of disorder and disruption; they violated the natural order rather than restoring it.

In this losing battle, the SPD did not invoke those within its own tradition who had contributed significantly to the theoretical discussion of the family. When August Bebel's Woman and Socialism was cited in the debates of the Parliamentary Council, it was by one of the two KPD delegates, Heinz Renner, not by Social Democrats.^[105] The SPD's general retreat from an analysis of the "woman question" grounded in Marxist classics and historical materialism had commenced during Weimar,^[106] but the division of East and West accelerated the process. Marx, Engels, and Bebel were now East Germans; Social Democrats offered little challenge to SED claims to direct and exclusive lineage from the founders of German socialism.

Distanced from any variant of a Marxist alternative by Marxism's immediate association with the east, Social Democrats had difficulty answering the "woman question" in terms substantially different from those employed by bourgeois feminists. For Selbert, it was not wage work alone that would end women's subordinate status and dependence within families. Equality could also be achieved by recognizing that the unpaid labor of wives and mothers in the home was equivalent in value to the wage work of fathers and husbands. Women and men were different, difference was defined by social function, and acknowledging this difference need not impede the achievement of women's rights.

To be sure, the tension between notions of female equality and female difference, defined in terms of women's relationships to husbands, children, home, and hearth, was not new in postwar West Germany; at least since the late eighteenth century, it has fundamentally shaped all discussions of women's social and political status in Europe and North America.^[107] However, the extensive treatment of women and the family in the debates over the Basic Law made explicit how much these themes were on the minds of postwar West Germans. In its final form, the Grundgesetz captured the conflicting images of women in the postwar period—of women's strength and achievements, on the one hand, and

their vulnerability and need for protection within families, on the other. The Basic Law did not reconcile these visions; rather, it locked them into place. In 1949, it was not immediately apparent how these general prescriptions would translate into specific policies, but debates over the Basic Law indicated that descriptions of women's equality were inextricably tied to concerns about a mother's responsibilities and the family's future.

A comparison with the debate over equal rights for women in the post–World War II United States effectively illuminates the framework within which postwar West Germans attempted to reconcile the concept of equality with the concept of a distinct female nature. Immediately after the war, the United States Congress took up a proposed constitutional amendment that stated: "Equality of rights under the law shall not be denied or abridged by the United States, or by any State, on account of sex." In this context, feminist proponents of the amendment confronted a strong feminist opposition led by the Women's Bureau, a federal agency housed in the Department of Labor, which was solidly backed by trade unionists, the League of Women Voters, church groups, and the American Association of University Women. These opponents feared that equal rights would eliminate the protective legislation for women workers won by trade unionists. Demands for special treatment were linked to the acknowledgment that women were different because of their role as mothers; protection for women was linked to a commitment to protection for families.

Composed largely of well-educated middle- and upper-class women, the National Women's party had argued since the 1920s that all labor laws should apply equally to women and men or should be eliminated altogether. Every public activity open to men should also be open to women. Legislating special treatment created an image of women not only as different but also as vulnerable, needy, and dependent. After the war, advocates of equal rights could add that women's contribution to defeating fascism revealed how able women were to take on any task.

Although yeas outnumbered nays when the measure came to a vote, the Equal Rights Amendment did not win the two-thirds majority required for the Senate to approve a potential amendment to the United States constitution. In an uncomfortable alliance with probusiness Republicans and antilabor southern Democrats, some well-organized feminist activists succeeded in defeating a language of equal rights for women proposed by other well-organized feminist activists. The United States Congress was not ready to "amend motherhood,"

to repudiate a definition of sexual difference according to which women's equality with men would always be modified by their reproductive capacity.^[108]

Three years later, an even stronger language of equal rights became part of the West German Basic Law, but not at the cost of amending motherhood. The feminist position that downplayed gender difference and emphasized the common humanity of women and men as the basis for women's equal rights did not exist in German feminism and did not emerge in the debates over the Basic Law. Transplanted into the politics of the postwar United States, Elisabeth Selbert doubtless would have joined the Women's Bureau and opponents of the ERA; the National Women's party represented precisely that brand of Anglo-American feminism from which Selbert relentlessly distanced herself. In a German context, she could champion an unequivocal language of women's rights while insisting that equality "acknowledge difference."

The Basic Law proclaimed that "men and women have the same rights," but it did not question that a woman's principal identity was as wife and mother. Rather, the Parliamentary Council's debates indicated that in the categories of West German politics, it was entirely possible, indeed essential, to protect motherhood while recognizing women's equality. The constitutional basis for a new political order identified the family and women's status as central concerns of the postwar era and structured the framework for the political discussion of those issues in the Federal Republic's first decade.