BY CHRISTINE M. DURHAM
FORMER JUSTICE OF THE UTAH SUPREME COURT
I congratulate this society for its focus on both women in the world and Latter-day Saint women in the world. The work of the twenty-first century—both in the Church and in the wider community that Church members serve in—is changing and is adapting to change demographics, to change understanding, and to change perspectives. I will address this idea both in terms of the work I have done professionally during my career and in terms of the personal experiences in my life that have affected my decisions and my work.
I would like to reference the thoughts, stories, and testimonies we have heard the last few days in general conference. One of the themes I heard was an interesting emphasis on the idea of personal revelation and the idea of the relationship between the individual and the Holy Ghost as a conduit to understanding the will of God, the care of God, and the presence of God in our lives.
That caused me to reflect [on my early marriage years]. Many of the decisions we made in our life together, although completely coherent to us and entirely sensible in our view of the world, were regarded by many others within the Church and within our families as out of the box. When I look back, we accompanied those decisions and their formulation and implementation with a great deal of mutual consultation, with prayer, and while seeking for confirmation through the Holy Ghost that the paths we were identifying and following were the paths that were right for us and our family.
Others have alluded to not always being received well within various communities. When I first moved to Utah, I attended a conference at the University of Utah on women’s issues. In the aftermath of one of the events at the conference, I attended a fairly small group meeting with forty or so young women, most of them students. Gloria Steinem was there. People took it upon themselves to describe to Gloria Steinem the peculiarities of the local culture, of women, and of women’s issues. I left that setting feeling very uncomfortable with the level of disdain and scorn heaped on my church, my institution, and the culture that had nurtured me.
Not long after that, I attended a Relief Society meeting in which someone described what she thought about feminism. I felt equally uncomfortable with the level of disdain and scorn for what I saw as an advocacy movement that had a great deal of merit in terms of its goals and its commitment to equality for women on so many levels. I learned in young adulthood that I would have to navigate the choices I was making and the path I was following in a way that was going to be my life and my path—not predetermined or predisposed.
A Few Statistics on Women
I want to start with a syllogism that sort of took root in the title I gave to these remarks. It goes like this: “Women are human beings. Human beings are multidimensional. Therefore, women are multidimensional.” Any philosophy, any doctrine, any preaching of principles that purports to say to women (or men) that your essence is X and that you must construct all of your behaviors, your ambitions, and your work to that essence is a very risky approach to what it means to be a human being—more importantly, particularly for this audience, what it means to be a child of God.
I will share a couple of statistics. They come from the U.S. because they are all I could find. The first one is that, in 2018, 56 percent of the membership in The Church of Jesus Christ of Latter-day Saints is female. The next statistic is surprising to me—maybe to most of us—and it needs to be a part of our conversations on these issues: 51 percent—more than half—of Latter-day Saint women over the age of eighteen are single. That raises a lot of interesting questions about how we think about families, how we think about kinship groups, and how we might approach the research on global security and global security–related institutions if all the focus is on the home experience. We all have parents or a parent, but in terms of our upbringing, that does not always follow through our lives.
Another set of statistics I would like to share is the percentage of Latter-day Saint women who are in the workforce in terms of paid employment. The national average in the U.S. for women who work full-time is 39 percent. Within the Church it is 25 percent: one in four Latter-day Saint women work full-time outside the home. However, another 23 percent of Latter-day Saint women work part-time. The national average is only 14 percent. It appears that Latter-day Saint women exhibit a preference to working part-time, perhaps because of their strong commitment to spending as much time at home as they can. If you add the 25 percent and the 23 percent together, paid employment outside the home occupies a place in the lives of 48 percent of Latter-day Saint women—nearly half. On a national level it is 52 percent, so there is a measure in which Latter-day Saint women are quite on parity with the rest of women in American culture.
One of the reasons I mention those statistics is that the first set of statistics gives us a different insight into what we mean by family and home work; the second set of statistics offers us a perspective on paid employment outside the home and what that means in the lives of Latter-day Saint women and, of course, their families. Having those baselines in mind should persuade us that we need more flexibility and more openness to different structures, to different decisions, and to different paths that people will follow based on their experiences, opportunities, and choices.
From an early point in my career, I have been concerned with the issues of equality and justice. I went to college in the 1960s. I watched this country struggle with issues around racial equality and significant changes that were occurring and needed to occur in our country. One of the things I identified as an observer in that struggle was the importance of the law to changing society. Now as I look back on a long life, I have the feeling that I have overinvested my confidence in the capacity of law to bring about change. We cannot bring about change until we have the changes in the law, but changes in legal structure are not necessarily accompanied by changes in hearts and minds.
I have noticed a somewhat similar phenomenon operating in many other institutions—even in the Church. I was interested in a story about Chile, where there was no law about women congregating, but people’s hearts and minds were seduced by the notion that somehow there ought to be a rule. As human beings we tend to be very uncomfortable with change.
That is something I wish I had learned a lot younger in my career. I did an enormous amount of advocacy for things like the Equal Rights Amendment; I advocated for changes in the law that would eliminate the forms of discrimination that had been encapsulated in our laws and rules.
Law, Justice, and Equality
I chose my profession of law as a way of acquiring what I thought would be the problem-solving skills to work on the issues of equality and justice that I considered important. Career development is significantly a matter of luck. You know what you like to do, you figure out what you like to do, and then you do it. You do it as well as you can, you wait for opportunities to present themselves, and you seize them. You open the next door that presents itself; if the door is locked, you go out the window. That is how careers are built, and that is the story of my career.
When I graduated from law school in 1971, there was not a law firm in the tri-state area that would interview a woman. The only women practicing private law in that area were women who were with their husband’s or family’s firms. When I came to Utah, it was not a whole lot better—although I did snag a wonderful position with a wonderful mentor. He turned out to be someone whose single mother had worked for an insurance company. She trained insurance executives from ground zero, they got promoted, they made the money, and she stayed as the office manager and the trainer. He had grown up with a sense of the unfairness of that, and he mentored me and encouraged me in my career development.
There were not very many women lawyers in Utah. When I first arrived, I attended a conference at the University of Utah on women in the law, and a female lawyer from Utah gave a talk. Afterward I went up and introduced myself. I told her I was excited to meet her and to find out there were women practicing law in Utah.
She invited me to a party. She said, “We are all getting together at so-an-so’s house after the conference.”
There were twelve women there. I was so excited! I thought, “Twelve women lawyers! Utah is a great place for women lawyers!”
It turned out that it was. Some of those women are still my dear friends, and we remember the days when the twelve of us were all the women lawyers in Utah.
We went on to found an organization in which women could unite their voices and identify issues they wanted to work on. We organized a national group that focused on getting more women on the bench and focused on examining the degree to which gender-related issues and gender-related assumptions were contributing to unequal treatment in the courts and in the law.
The same was true for the National Association of Women Judges, which was organized the first year after I went on Utah’s trial bench. In my introduction, it was mentioned that I was the first woman on the Utah Supreme Court. I was actually the first woman on the general jurisdiction trial bench as well, in 1978. It took almost a hundred years to get a woman on our major trial court and about that long to get a woman on the Utah Supreme Court.
People look to courts to be places of fairness; they expect to be treated honestly and fairly. But our organization’s research suggested that those expectations were not always met in our state and federal court systems for many people, especially for women and people of color. We devoted ourselves to educating, to researching, and to developing materials that judges could use to improve their practices in these arenas.
When the Utah legislature refused to ratify the federal Equal Rights Amendment, they promised one of the female legislators that they would provide some money for a joint task force on eliminating all gender-related statutes in Utah’s code. I worked on the committee that did that. We were one of the first states in the country to eliminate those gender-based statutes. An example of this is in the judicial retirement. When I first became a judge, if I had been a man and had died, my wife would have received a pension, but as a woman judge, if I had died, my husband would have only been entitled to support if he could prove he was dependent on me. Those are the kinds of things the statutes governed.
After that work was done, many of us in that generation thought, “The laws have been changed, we have eliminated formal discrimination, and we have determined the law will be written in a manner that forbids discrimination and encourages equality and accountability.” Guess what? It did not work out as we expected. It helped a great deal in different arenas, but we began to ask ourselves why it is that we can change the institution’s structure and that we can change the rules and the laws that implement it but that we still have instances where we can demonstrate, through data and research, that women and others who are disadvantaged in those systems are not getting a fair shake.
That is when the research began to emerge on what was known as implicit bias—now called implicit assumptions. There is a whole body of research that examines the degree to which all of us carry around expectations and assumptions about the world in our consciousness. This is a very normal human condition. It is not necessarily a bad thing, which is why calling it implicit assumptions is probably more helpful than calling it implicit bias. Of course, all biases are assumptions about someone based on known characteristics. For example, when you first meet someone or watch someone on TV who is wearing glasses, you automatically give that person a ten-point IQ advantage. Did you know that? People who wear glasses are assumed to be smarter than people who do not.
I like to use that example because it is a relatively benign one about the way all of us make assumptions about the people we meet and the people we see, what we expect of them, what we attribute to them, what we anticipate they will do, and what we anticipate they believe. In our culture, we experience the impact of unwarranted, unhelpful, and sometimes totally irrelevant expectations. One of the things that is so distressing about that is we often are unable, unwilling, or simply fail to address the assumptions we make.
Of course, you cannot function in life without making assumptions. Stereotypes exist for a reason because they comport so often with experience and reality. But they are dangerous. We have discovered in the law that these implicit assumptions have a huge impact on the processes of justice and on the issues of who gets arrested, who gets charged, who gets incarcerated, and who does not. They also have an impact on the issues of whom juries believe as witnesses in the courtroom and what kinds of assumptions juries and judges make about individuals whose futures they are considering. We learn that when we are selecting judges for our courts, we make assumptions about them based on what we see and know and often what we think about what we see and know.
You can find implicit attitudinal tests on the Internet. There exists some controversy about how malleable they are and how constant their results are over time. For your own education, google “implicit attitudinal tests from Harvard.” There are tests for race, for gender, for weapons, for appearance (obesity, for example)—there is a whole range of them.
I was planning to give a talk on implicit assumptions one time, and I thought I should take one of the tests. I took the one on gender and paid employment. It was designed to determine what your assumptions are about men and women and work in the home and work outside the home. I have never been squeamish about language. I have called myself a feminist since I was at least eighteen. I figured that since I have been a feminist all these years, I was going to ace this test. I did not ace the test. The results came back suggesting that I was a moderately biased in favor of associating men with paid employment and women with employment in the home, even though I had worked all my life and consider work a central part of my life. It was a bit of a shock; I was scared to take any of the other tests.
This convinced me I needed to slow down in my decision-making. I have hired and supervised many law clerks over the years. I have decisions to make in the course of my work. I needed to be sure I was unpacking my reactions to people I was dealing with and make sure I was not thinking, “He is a _____,” or “She is a _____,” just because of what I knew on the surface. That appears to be the only way we know how to unpack those assumptions.
Having concluded that we could not solve anything solely by changing the law, I came to the conclusion that we had to work very hard to unpack what our mission is. I think it has made a difference in many of the circles in which I have worked and been an advocate for women that people know I am a Latter-day Saint. I can find consistency and coherence in my beliefs and affiliation with the Church and my deep-seated conviction that we have to pay attention to the way women and, by extension, children and families thrive or do no thrive in our larger communities.
Women, Learning, and Work
There are some interesting statistics in Utah about the numbers of women who start degrees at BYU. These that are not matched nationally but we still have some problems nationally as well. More women start degree programs than men, but more men finish. That is a concern.
I would like to quote President Russell M. Nelson from an earlier time, giving the Church’s mainline position on the subject of women in education. He said, “Your mind is precious! It is sacred. . . . [E]ducation is a religious responsibility. . . . In light of this celestial perspective, if you . . . cut short your education, you would not only disregard a divine decree but also abbreviate your own eternal potential” (BYU–Idaho devotional, January 2010). That is a perspective on what women ought to be doing to develop their education, their skills, and their access to learning.
Learning, of course, is not merely instrumental. We do not learn just to do something; we learn because the learning and our relationship with it expands us and becomes a part of the selves we are in the business of growing. Learning is not valuable simply for motherhood. It is not valuable simply for work. It is not valuable simply for Church leadership or community service. If we truly believe we have a divine heritage, then we must value that eternal self that needs to learn and to grow. (See Eva Witesman, “Women and Education: ‘A Future Only God Could See for You,’” BYU devotional address, 27 June 2017.)
Therein comes the multidimensionality. First of all, if 51 percent of the adult women in the Church are single at any given moment, then they must be responsible for their own care and feeding. They need to support themselves, except for the few who have trust funds. They need to prepare themselves.
I used to play a game of life with the young women I was asked to speak to in the Church. Having gathering the statistics on women in the community, I would hand out little colored dots in proportion to what the statistics show. Then I would say, “Everyone with a red dot stand up. You are going to be the women who will never marry.” The young women would blanch, because Latter-day Saint girls do not think that can happen to them. Yet that percentage of them was going to end up in that category. The rest of the young women would then stand up according to their dot color to represent other categories: the percentage of women who will be divorced, who will be widowed, and who will end up married. For some reason, that simple act of standing up with the corresponding colored dot made it more real for young people.
It is very important to understand that more than half of the women in the Church need to support themselves. What are they going to do to support themselves? Will they have menial jobs with long hours and low pay? Or will they have jobs for which they prepared themselves educationally and experientially? Married women are not exempt from this scenario because they may become the divorced women or the widowed women. The notion that Prince Charming will keep you safe economically for the rest of your life is a flawed notion.
President Henry B. Eyring once said, “Part of the tragedy you must avoid is to discover too late that you missed an opportunity to prepare for a future only God could see for you” (“Education for Real Life,” Ensign, October 2002). When I read that, I thought about the importance of work in my life. My family has been incredibly important. My children have taught me so much, and I delight in my association with them when they were small, when they were teenagers, and now that they are adults. At the same time, my work has infused my life with a sense of purpose and meaning that I treasure and that has contributed in so many ways to who I am and what I feel I have contributed to my community.
I believe human beings need work. That does not mean that work in the home does not qualify. That also does not mean that work in the Church does not qualify. But this work has to be something that sustains you and that you do out of choice and not by assignment. I worry a good deal about some of the essentialism I see in the culture we have in the Church that suggests that women, because they are women, have this template and men, because they are men, have that template—that they are different and do not overlap.
Why would that be? Are women and men not both children of God and human beings? Would there not be enormous overlap in their abilities, their needs, and what they could and should do with their lives? In some respects, some of those stereotypes can be as toxic for men as they are for women. I know that from my own experience. My husband, after he was settled in his medical practice, went part-time so I could go full-time to pursue professional opportunities. We switched off the balance for keeping on top of the home and parenting responsibilities. Lots of people criticized him. Lots of people asked him how he could stand to be married to such a bossy woman. His parents were somewhat dismayed, which I always thought was funny because George’s great-grandmother was Susa Young Gates. She was known as the thirteenth apostle. She was not even the Relief Society president at the time, but she had an office in the Church Office Building because she was such good friends with the prophet and they spoke nearly daily. George came from a long line of strong women, but it caused dismay in some members of our family. They thought we were on the wrong path. From this end, it does not look like the wrong path.
Let me share with you a poem that speaks to me. I have been using it a lot the last year or so as I have faced the formal end of my judicial career. It goes with what I said earlier about how you build a career, but this poem is about building a life. It is by Kirsten Dierking and is called “Lucky Star”:
All this time,
the life you were
supposed to live
has been rising around you
like the walls of a house
designed with warm
As if you had actually
planned it that way.
As if you had
stacked up bricks
and built by mistake
a lucky star.
I do not think the choices are all at random. I think the bricks we choose make a difference in how lucky our star is.
Adapted from an address delivered at the International Society Conference on 2 April 2018.