*As a result of converting these pages into html from Word processing formats, some formatting items, including footnote references, have been lost and are in the process of being corrected. All papers are works in progress.

Abstract:
In an earlier comparison of  welfare state developments in Germany and the United States, I highlighted two areas that warrant much greater feminist attention then they have drawn to date: namely, the constraining or supportive nature of  constitutional rights  as a foundation for gender-friendly welfare reforms, on the one hand,  and emerging  patterns of  burden-shifting qua “burden-sharing” under the rubric of New Federalism and states’ rights, on the other. My paper here seeks to compare and contrast the nexus between constitutional rights, High Court rulings and welfare reform measures in the Federal Republic. 

The paper begins by spelling out fundamental differences in the Rechtsphilosophie embraced by each state, and by summarizing the constitutional priorities dictated by these differences.  My primary argument is that a legal philosophy qua Staatsraeson grounded in a concept of positive rights is a necessary but not sufficient condition for bringing about welfare reforms more consistent with the real needs of women.  Next I describe differences in the nature of  women’s dependency on Vaterstaat, as well as in the types of  the “welfare choices” women face as a function of the reforms dating back to 1990.  I contend that in Germany the trend is one of according public recognition to reproductive/care work , albeit under rather arcane (and thus counterproductive) conditions.   I then describe a limited number of High Court rulings that have proved crucial in redefining the parameters of welfare reform and women’s claims on the state.

A multiplicity of verdicts in the FRG pertaining to the inclusion of child-rearing  in one’s “pensionable” work record, tax relief for families with children, etc. appear, in theory, to chip away at the traditional "breadwinner model”; in practice, they fall far short of ensuring individual entitlements at levels high enough to redress fundamental imbalances in the life-long earnings capacities of women and men.   The concluding section reflects on the extent to which the courts may/may not be viewed as an effective channel for redressing gender inequality as pertains to larger “social security” issues.
 

Wenn drei Eier unter drei Tischgenossen zu teilen sind, kann man jedem eins geben. 
Man kann aber auch dem einen die Dotter, dem anderen das Weisse, dem dritten die 
Schalen geben. Dieser Art der Teilung ist sogar die Uebliche.

--  Ernst Juenger

Much has been written in recent years about the path-dependent nature of welfare state development across a wide array of national systems.  For the most part, this approach has emphasized a country’s unique historical experiences, its specific level of economic development, its particular conceptualization of the State, as well as the strength of labor movements, organized religion, and other interest groups in promoting or inhibiting the establishment of a comprehensive welfare regime.  Feminist scholarship has taken the idea of path-dependency one step further, illustrating the ways in which historical, structural and ideological factors not only constrain whole systems but also relegate women to specific roles -- and usually to higher levels of social insecurity -- under very diverse welfare regimes.  Overriding concern with the cut-cut-cut mentality of most national policy-makers in recent years has nonetheless displaced our focus on the “clues” institutional studies provide as to the strategies women can use in redressing persisting inequalities.  Few comparativists have attended to the increasing power of one set of  institutional actors with a unique capacity for blocking off old paths and charting new ones across many welfare-state types: namely, the national courts. 

 In an earlier study I set out to examine common forces for welfare “change” in both the US and the FRG, despite the very different models (maternalist vs. breadwinner) that underlie their respective norms of entitlement and modes of benefit-allocation.{1} My research revealed that policy-makers in both countries had moreover set out to achieve surprisingly common goals, major  systemic differences notwithstanding.  Their stated aims included bringing about substantial cost-containment (in view of long-term demographic trends); achieving a stabilization of individual contributions to insurance programs as a percentage of wage-income  (although both governments, in fact, increased such burdens as they applied to “average workers” during the early 1990s); and  realizing reductions in labor costs to employers while simultaneously increasing the latter’s “flexibility” vis-a-vis the labor market.   Last but not least, both governments allegedly set out to foster greater “choice” while promoting individual  responsibility.  The German and American national paths have diverged significantly on this point -- not so much as regards the degree of gender dependency both countries have promoted historically but rather with respect to the impact their reformulated Achoices” hold for the future quality of women’s lives.
 

 The final part of that study highlighted two areas which seemed to warrant greater feminist attention then they have drawn to date: namely, the constraining or supportive nature of  constitutional rights as a foundation for gender-friendly welfare reforms, on the one hand, and emerging patterns of burden-shifting qua “burden-sharing” under the guise of  New Federalism/ states’ rights, on the other.  In a very rare effort to practice what I preach, I now attempt to describe and analyze the nexus between constitutional rights, High Court rulings and welfare reform measures in Federal Republic, particularly as it has developed over the last ten years  -- an exercise which has made me very glad that I decided not to go to law school, especially in Germany.

   The paper begins by examining the prevailing Rechtsphilosophie embraced by Germany, relative to the United States, highlighting a few critical constitutional priorities dictated by differences between the two.  My primary argument here is that a legal philosophy qua Staatsräson grounded in a concept of positive rights is a necessary but not sufficient condition for bringing about welfare reforms consistent with the day-to-day needs of women in each system.  Next I describe the nature of women’s dependency on Vaterstaat -- or, alternatively, on a theoretical male breadwinner -- as as a function of the reforms initiated in the early 1990s.  My argument here is that German women are increasingly being accorded public recognition for their reproductive/care work, albeit under rather arcane (and thus counter-productive) conditions.  In the USA, by contrast, the new stress on individual responsibility has resulted in a virtual denial of the societal function of reproductive/care work. I then present a select number of High Court rulings that have reconfigured the parameters of  welfare reform in the FRG since 1987.  The concluding section offers reflections on the extent to which the courts may -- or may not -- be viewed as an effective channel for redressing gender inequality as pertains to larger “social security” issues.

CONSTITUTIONAL RIGHTS MATTER  [BUT IT ALSO MATTERS WHICH CONSTITUTIONAL RIGHTS ONE HAS] 

Catherine MacKinnon has argued at great length that US-style liberal democracy remains deeply embedded in a concept of negative rights, in stark contrast to the positivist legal philosophy long embraced by conservative-corporatist Germany.{2}.  The liberal framework implies that the state exercises an extraordinary degree of self-restraint; its main purpose is to avoid undue interference in the conduct of social and economic affairs, meaning that it usually intervenes only in order to prevent or remedy  a violation of individual rights by a third party.  In short, once formal legal barriers to equal opportunity have been eliminated, the state is construed as little more than a neutral arbitrator among diverse and randomly conflicting interests.  Governmental officials work to prevent the violation of rights already possessed and enjoyed by “average” members of society but not to shape actively the conditions under which substantive rights or opportunities might be realized by others.  The German framework, by comparison, conceives of the relationship between citizens and the state in more organic terms.  The nation is viewed as a holistic community (mirrored in the FRG's arcane, blood-based concept of citizenship, for example) in which political officials not only uphold the “sanctity” of certain societal actors -- such as the family -- but also strive to maintain a conscious balance among potentially conflicting parties and their group-defined rights. 
 

These negative and positive conceptions of the state are directly reflected in the contrasting legal philosophies adopted and consolidated by each country over a period of some three hundred years. Initially rooted in the premises of “common law,” the Anglo-Saxon system of jurisprudence relies heavily on precedence, incrementalism and individualism.  Sweeping societal changes do occur but usually on a case-by-case basis, the operationalization of which is spread over many years or even decades [e.g., Brown v. The Board of Education of Topeka, Kansas (1954)].  Changes depend heavily on the specifics of whatever given case has successfully worked its way up a “ladder” of  unspecialized, territorially situated court proceedings.  Only such questions as can be measured against the larger constitutional picture are eligible for deliberation by the national courts, once the state-constitutional courts have rendered their own judgments on many points of law, given the primacy accorded non-interference and states’ rights throughout US history. The judiciary’s historical reluctance to render binding normative judgments or to dictate policy requirements is shaped, in part, by a respect for the fundamental differences found among the fifty states (despite the permissibility of “class action” suits in certain domains).   States have traditionally dominated the fields of education and social policy, though the federal government became much more actively involved in matters of educational and work-place opportunity following the onset of the Civil Rights Movement. The United States Congress first began introducing “equality legislation” in 1963, expanded dramatically by the 1964 Civil Rights Act.  An overwhelming number of Supreme Court verdicts involving gender (and race) have centered on access to and conditions of employment, and have thus indirectly upheld the “free market” as the primary channel for achieving equal opportunity, though not equality per se.

Neither the basic trial structure nor the lengthy appeals process in the United States can begin to match the complexity of the various judicial organs [Instanzen] and appellate cycles [Revisionen] witnessed in Germany.  The US legal proceedings themselves must involve a real person and a concrete-material (or a potentially real) violation of rights, rendering law suits both highly adversarial and extremely expensive; private lawyers at all levels are usually paid on a percentage basis, raising the stakes for both “winners” and “losers.”  Given the dramatic budget cuts imposed on publically funded legal-aid offices since the Reagan years, the poor have become particularly vulnerable to the money-driven nature of justice in America; these locally based legal aid offices were introduced during the 1960s in order to provide the indigent with free counsel and access to lawyers, thus it is ironic that they were eliminated during times when the poor needed them the most.{3}

Consequently, the findings of  the US high courts are  essentially inductive -- going from a very specific case to a universally binding verdict -- resting as they often do on cases exceptional or sensational enough that lawyers are willing to pursue them “come hell or high water.”  High Court justices enjoy a fair amount of discretion in deciding which contextual factors count, what mitigating circumstances might apply, and which earlier precedents “take precedence” in the formulation of majority and minority opinions.  Majorities themselves are thus often cobbled together from very different and/or penumbral modes of legal reasoning (explaining, for example, the tenuous status of Roe v. Wade).  In most cases, federal justices are themselves under no obligation to seek the truth, the whole truth and nothing but the truth; instead they remain quite dependent on the nature of the evidence which the lawyers from both sides choose to present.  Many welfare rights battles have been lost on the basis of having been decided “on the wrong case.”{4}  Formal justice in America thus mirrors the broader culture, stressing survival of the fittest.

The US Constitution contains no specific passages guaranteeing the formal equality of women and men. In fact, the one effort to introduce such a clause, the 1972 Equal Rights Amendment, failed miserably after a protacted 10-year ratification battle, falling three states short of the required two-thirds majority.  Though it pays no explicit or direct homage to capitalism as the national economic system (the most direct reference to economic matters being the Inter-State Commerce Clause, which is more about states’ rights than about the market creed), neither does the Constitution oblige the state in any way to provide for a basic quality of life.  The strongest defenses of  “welfare rights” to date have drawn on penumbral rights, like privacy, or procedural rights rooted in the Fourteenth Amendment  (equal protection and due process).  The Supreme Court has yet to apply the same strict scrutiny standard to sex in reference to the 14th Amendment as it does to the variables of race, religion and national origin.  This is the legacy of a three-hundred year old common law notion that women’s reproductive capacities render them subject to the “special” -- and thus not equal -- protection of the Courts (as affirmed in Muller vs. Oregon  in 1908, limiting women’s paid work-hours). In short, women’s equality rights in the United States are “derivative” rather than explicit. 

Just as importantly, the fact that women’s struggle for equality rights is ultimately embedded in adversarial proceedings more often than not results in judicial reliance on “false dichotomies,” pitting sameness against difference in ways that ignore the cumulative impact of gender + race + class.  As Deborah Rhode observes, the dilemma with regard to women’s efforts to use the courts to achieve equality in the United States is that the latter constantly “seek bright lines,” avoiding “interference in market processes” without weighing the cost of non-interference as it defines the real  opportunity structure for women and minorities.  By  ignoring connections between the public sphere (defined in terms of political, commercial, financial activities) and the allegedly private realm of family, household or care-work (and the loss of earning potential implicit in such), judicial actors make poor use of the discretion at their disposal for recognizing larger questions of cumulative disadvantage.{5}

Like several other European states, the German courts abide by the precepts of Roman law which, simply put, posits that there is a “correct legal answer” for virtually every “legal question” one can pose, based on an excruciatingly gründlich (profoundly thorough) and detailed reading of the constitution or the law. This system allows for the abstract control of norms (a practice also implicit in the European Court of Justice’s preliminary ruling); this infers that cases need not be tied to “real” human beings, as FRG judicial rulings on abortion, in particular, have demonstrated. Each Bundesverfassungsgericht (hereafter BverfG) verdict thus amounts to a quasi-permanent, binding interpretation unlikely to be overturned as a consequence of changes in societal consciousness or socio-political conditions per se.{6}  The judges themselves are expected to engage in “truth-finding,” and are free to commission experts on specific points.  This means that German verdicts are sooner deductive -- moving from general conditions to a specific finding.  They are thus more closely tied to the “rule rather than the exception,” even if most pronouncements assume the form of an impenetrable web of cross-cutting legislative, administrative and specialized-court imperatives incomprehensible to normal mortals. Insofar as court fees tend to be pre-set and administrative/state actors are frequent parties to such suits -- coupled with the overwhelming number of Germans who actually purchase legal-liability insurance -- cases which make it to the top of the judicial pyramid here are not inevitably subject to the same measure of Klassenjustiz witnessed in the US.

The Grundgesetz offers explicit categories of socio-economic rights, spelled out in Article 3 (equality of women and men), Article  6 (special protection for mothers and children), Article 14 (protection of property), and Article 20 (a democratic and “social” state).  Conflicts emerging out of efforts to balance these rights against each other are further moderated by explicit judicial reliance on the norms of  proportionality [Verhältnismäßigkeit], formal equality [Gleichheit], merit qua contribution [Leistung], and need [Bedürfnis], coupled with a heavy dose of what I can only label strict proceduralism  [Zulässigkeit der Beschwerde].  FRG justices will often recognize the righteousness of group claims in theory (for example, recognizing social entitlements, like pensions, as a form of “property” not to be violated) but grant legislators, at times, wide latitude in the pursuit of other explicit societal obligations, e.g., ensuring economic stability for the whole. In other contexts, justices may maximize their influence by dictating specific amounts and/or implementation deadlines, as has been the case with its January 1999 Family-Taxation Resolution.  In short, an effort to secure group rights (e.g., for “mothers” or “families”) seems to take priority over protecting individual freedom at all costs in the Bundesrepublik. 

Perhaps the simplest way to illustrate core differences between the individual/adversarial nature of the American system and the group/abstract-norm orientation of the German judiciary is to describe the way in which significant cases themselves become part of the public record.  Welfare and women’s rights advocates in the US study the “ins” and “outs” of “Roe” or Roe v. Wade (1973), Frontiero (v. Richardson, 1973), Geduldig (v. Aiello, 1974), (Califano v.) Goldfarb (1977), Los Angeles Department of Water and Power v. Manhart (1978), and  Harris v. McRae (1980).  In the Federal Republic, cases are sooner cited along the lines of Entscheidung zum Schutz des Existenzminimums im Einkommensteuerrecht of 1990 [BverfG 82,60 (104); 87, 153 (170f); 91, 93 (108ff, 111)], or alternatively, as Nr. 178 BverfG -GG Art 6 I, 6 II; EstG PP33c, 32 III, 32 IV, 32 VII, 2. Senats, Beschluss v. 10. 11. 1998 - 2BvR 1057/91, 2BvR 1226/91 and 2BvR 980/91!!!!! 

More often then not, individual plaintiffs remain anonymous even at the point the verdict is issued (die Beklagte, die Klägerin).  It is only after these verdicts have filtered down through a chain of primary and secondary law journals that they acquire a moniker more suitable für den Volksmund, e.g., das Trümmerfrauenurteil.  Interestingly, the European Court of Justice is more inclined to adopt the names of specific parties involved in a given suit, e.g., Defrenne, Kalanke, Nolte, to name a few.  What has nonetheless been empirically demonstrated across many a  national context is the fact that poverty spells experienced by women are shorter in corporatist “regimes” relying on positive law than in liberal ones relying on a framework of negative rights.{7}

DEMOGRAPHICS:    WHY  VATERSTAAT  STILL  NEEDS  HIS  MOTHERS
Given their direct ties to women’s reproductive roles, as well to historical notions of women’s worthiness with regard to state support, it is useful to review the demographic forces stressed by neo-liberal forces to justify “privatization” efforts and benefit-cuts in both countries.  As of 1996, one American (statistically speaking), is turning 50 every 7 seconds, a trend continuing through 2014.  The  aging US Baby Boom (born 1946-1964) has produced its own “boomlet,” however: 1997 saw the highest number of school matriculations in the nation's history, topped again in 1999.  The US population is expected to increase 50% by 2050, implying that Social Security contributions will not dry up, as long as future generations of workers make a “living wage.”  Average fertility among American women stands at 2.05 children; as of 1990; 25.7% of the US residents were under 25, 12.5% were 65 or older.  The Census Bureau estimates that the share of persons over 65 will reach 10.8% by 2040, when those over 85 will account for 19%.{8}

Ethnic newcomers continue to produce children at a higher rate than established white/non-Anglo groups. In the US, the “white” share of the population, which declined from 87% in 1950 to 76% in 1990, may fall to 62% by 2050.{9}  As long as the USA remains not only “a land of immigration” but also a country which believes in turning legal aliens into citizen-taxpayers as quickly as possible, in contrast to Germany, we should be able to master the crisis. 

By 2030 half of the German voters will be over 55, implying a crisis of a different magnitude.  The proportion of citizens over 65 rose from 21.6% in 1987 to 24.1% by 1995; projections for the years 2010 and 2020 stand at 31.3% and 35%, respectively [see Figure 1].  The number of live births per West German woman fell from 2.37 in 1960 to 1.37 in 1987, though it has risen slightly since unification (the biological clock among Baby-Boom women has reached “5 minutes before 12”).   While GDR women evinced higher fertility rates prior to unity (90% vs. 60%), Eastern births plummeted nearly 60% after 1991 (despite recriminalization of abortion in 1993).  The immediate decline owed  to mass unemployment among females, and to the elimination of GDR maternal support services; my perusal of statistical data indicates that the Eastern decline also marks  the end of a natural 20-year fertility cycle, however. 
 

***********************     Figure 1 Demographics about here  *********************

It is quite clear that both countries will continue to need their “mothers” -- albeit to different degrees -- as long as they  refuse to replace their earnings-proportionate/ payroll-witholding/ pay-as-you go welfare structures with tax-based/minimum income/individual entitlement systems.  In the FRG the “elderly dependency ratio” (% over 65 relative to the population aged 15-64) will increase from 37% to 67.8%, with the steepest rise occurring 2020-2030.  Neither privatization nor capitalization schemes will “fix” the system for women who have already sacrificed years of  (potential) earnings, no matter how much lawmakers have begun chipping away at other “breadwinner” or “dependency” premises.  As Bulmahn reports, 33% of the German women and 46% of German men held a private life-insurance policy as of 1998; but men are twice as likely (16%) as women (8%) to secure a policy valued at DM 50,000 or more.{10} 

Yet  spending and “saving” patterns in both countries increasingly pit the old against the young.  The feminization of poverty, which found elderly women sinking more rapidly into poverty than most men as of the 1960s and early 1970s, has been superseded by the infantilization of poverty, which spread well beyond US and FRG borders in the 1980s and intensified through the early 1990s.{11}  All told, policy changes in both countries are giving rise to a serious break in the generational contract; but whatever the age-group, the losers still seem to be women. 

THE GERMAN SOZIALSTAAT: SYSTEMIC COMPONENTS AND EVOLUTIONARY DYNAMICS
There exist almost as many classifications of welfare-state “types” as there are competing theories regarding the effectiveness of modern state activism in the field of social policy.  Though perhaps the most frequently cited, Gosta Esping Andersen's “three worlds” have also been widely criticized for considering only those welfare programs directly tied to the paid labor market -- thus excluding the overall impact of formal state policies on the socio-economic status of women.  One of the first to emerge in Europe, the German welfare system has been alternately characterized as a Social Security State (Furniss and Tilton), as a Conservative Welfare Regime (Esping-Andersen), as a Social State in a Social Market Economy (Ginsberg), and last but not least, as the Bismarck Model (Schmid).{12}  Time and space constraints preclude me from offering more than a telegraphic history of the German welfare state here.  Major legislative turning-points in the evolution of the social security system are summarized in Figure 2.  The German tradition of state involvement in the areas of health, pension, disability and unemployment insurance dates back to the 1880s.  These early rights to social protection were initially limited to citizens directly involved in the paid labor force, but they were later expanded to include family dependents, as well as new categories of “risk” linked to industrialization. 
 

   ****************      Figure 2,  Legislative Stages  about here     ******************

In 1949 the fledgling Republic resumed an earlier effort, quickly thwarted by the National Socialists, to associate the concept of social provision with democratic political rights.  One rather unique aspect of the German Sozialstaat is that it acquired a constitutionally imperative character at a fairly early stage, embedded first in Articles 161-167 of the Weimar Constitution and reformulated under Articles 20 and 28 of the Basic Law (one trait shared with the GDR).  Two forces drove the re-creation of the welfare system as of 1949.  The first centered on the mass-unemployment and hyper-inflation experiences of the 1920s/1930s which had culminated in Hitler's ascension to power in 1933.{13}  The second was the need to reinstitute a German-specific culture of solidarity, used to legitimize a fledgling democracy otherwise deprived of its former “national identity.”  Its core values remained the same, however -- security, stability, and subsidiarity -- as opposed to the more egalitarian, universalistic thrust of the Scandinavian model born of the 1960s. 

A first step towards postwar consolidation, the Social Reform Debate of 1953, took place under conservative auspices, affirming the “breadwinner/dependent family” model of the prewar period.   The Große Rentenreform of 1957 brought a dynamic, redistributive quality to the pension system by pegging retirement benefits to overall increases in wages; in so doing, it raised some 6 million pensioners out of poverty and dependence on social aid, recognizing retirement benefits as a form of wage-substitution.  1961 saw the creation of a separate Sozialhilfe system which took “special life conditions” into account and wedded them to the precept of legal entitlement, e.g., physical/mental disability.  Benefit levels were standardized, based on “the shopping basket” concept, to ensure a minimal quality of life to disadvantaged citizens at the onset of a major economic miracle.{14} 

As elsewhere throughout Europe, the great leap forward in welfare-state development commenced in the 1960s and continued through the mid-1970s.  Generational change, pressures from the New Left and the SPD/FDP Machtwechsel, following three years of Grand Coalition government, brought a major expansion and the addition of several new programs 1969-74.  The Social-Liberal era produced improvements in the Bundessozialhilfegesetz (BSHG), the Wohngeldgesetz and the Ausbildungsf`örderungsgesetz, inter alia.  Following a bitter strike among metal-workers in 1969, the Bundestag adopted the hotly contested principle of Lohnfortzahlung for industrial laborers (100% wage replacement for days lost due to illnesses under six weeks), a privilege already enjoyed by civil servants and white collar workers.  The low end of the pension scale was tied to a minimum income in the mid-70s, in an effort to address the marginalized status of the non-employed, i.e., women.

The early to mid 1980s saw few direct efforts on the part of a reinstated CDU/CSU-FDP government to reverse social-democratic commitments; a number of  new programs were introduced, albeit with largely pronatalist intentions, such as regular payments for an “educational year” following the birth of a child, pension supplements for each child reared, and some attempt to help mothers re-enter the paid labor force.  The late 1980s, a period of mounting structural unemployment (e.g., in the coal and steel industries) brought the concept of the Two-Thirds Society [more accurately, the 70-20-10 Society], bringing cuts in programs largely affecting the unemployed and social-aid recipients but not the middle class.  The discourse of the 1990s embraced three new themes: the cost of unification, the perils of the Risikogesellschaft, and the need for “global competitiveness.” 

Given the FRG's penchant for juridicalization, it would take a panel of ministerial veterans, each equipped with her own horde of lawyers and statisticians, to provide a comprehensive picture of the changes made in the social insurance over the last six years alone.  And that, in many respects, is the same peril citizens face with regard to dramatic changes now underway in US-American welfare policy -- by the time normal mortals can begin to comprehend what the changes might mean for them personally, the process has already assumed an irreversible quality, propelling politicians along a trajectory of still more negative changes to come.{15} 

The overall system has two main components, the dominant one being the  social insurance pillar [Figure 3], which encompasses old age {GRV}, sickness {GKV}, accident and disability policies, unemployment compensation, as well as survivor benefits (mostly widows).  It is structured according to the tenet of status maintenance: except for dependents, contribution levels and pay-outs are tied to wages; each premium is a proportional, earnings-related withholding tax.  The stress on status-maintenance leads to increasing vulnerability for certain groups throughout the life-cycle, e.g., for women, since the impact is cumulative; restricted earning periods, added to low wages throughout one's paid working life, inevitably result in low retirement benefits and few personal savings. Benefits for WWII refugees, veterans, child- and housing-subsidies draw from the larger tax pool.  The second pillar consists of Sozialhilfe, various forms of means-tested social assistance (now including the financing of abortions for indigent women) which relies on taxation but which remains largely the responsibility of state and local/communal governments. 
 

*****************      Figure 3, Social Net,  about here   ***************** 

There are a few universally redistributive elements and transfers-downward, through the health insurance system, for instance, but there is also a good deal of “trickling up” by way of generous, non-contributory civil service benefits and free health benefits for dependents of the well-to-do.  While the Western GDP increased by factor of 2.5 between 1970-1990, health expenditures alone grew by a factor of 6.5 during the same period.  Since 1980, state has attempted to re-regulate the system every three to five years; its intervention has intensified since unification.{16}  The 1993 reform brought a profit of DM 9 bil to the funds {Kassen}; doctors and pharmaceutical companies quickly discovered the loopholes, however, leading to new deficits within a year (DM 7 bil in 1995, over DM 9 bil in 1996).{17} 

Insurance programs are administered through a multitude of quasi-private “carriers,” representing a mix of functional, occupational, confessional and territorial insurance funds.  Eight organizations comprising the Bundesarbeitsgemeinschaft der Freien Wohlfahrtspflege tend to dominate the process: the Deutscher Paritätischer Wohlfahrsverband, the Deutsches Rotes Kreuz, the Catholic Caritasverband, the Diakonisches Werk der Evangelische Kirche, the Arbeiterwohlfahrt, the Zentralwohlfahrtsstelle der Juden und the DGB.  The latest to join is the Volkssolidarität, one GDR association which has taken root in united Germany.{18}  The large number of delivery systems inevitably means higher administrative costs than one would find in a single-payer system.

Many of the problems afflicting the welfare system, and thus precipitating the crisis of the 1990s, owe to factors exogenous to the Sozialstaat itself.  Two of the most important ones are the phenomemon of structural unemployment and the misdirected financing [so-called Fremdfinanzierung] of the unification process.{19} The chief arguments used by the Kohl Government throughout the “savings-package” debates of 1992-97 focused on the “distortions of economic development” engendered by mounting social expenditures and overbearing regulatory efforts -- though the “explosion” of social expenditures was not directly supported by the Government's own statistics.{20}  Outlays at the Federal Ministry for Labor and Social Order, comprising the largest single component of federal budget, amounted to DM 118.8 billion in 1996, down from 128.8 billion in 1995.  The overall Social Budget totaled some DM 1,200 billion in 1996, compared to DM 894 billion in 1991, but this increase stems largely from the Government's lack of activity on the labor market front.{21}  The national debt, meanwhile, rose from DM 929 billion in 1989 to over DM 2,135 billion in 1996; for the federal level alone the figures are DM 491 billion and DM 840 billion, respectively.{22}

The Sozialleistungsquota [SLQ] -- that is, social expenditures measured as a percentage of the Gross Domestic Product -- has grown over the last two decades (1980: 32.0%, 1990: 29.4%, 1993: 34%), but the rate does not come close to increases measured between 1950 and 1975 (rising from 17.1% to 33.7%).  Indeed, the SLQ for 1993 was equivalent to that of 1975, despite a real explosion in national unemployment figures.  Total social expenditures for 1993 amounted to roughly DM 13,000 per capita.{23}  Long-term unemployment, exceeding the eligibility period for drawing Arbeitslosegeld/-hilfe, has led to a rise in Sozialhilfe  [SH] outlays.  That figure stood at DM 48.9 bil for 1993, or DM 43 bil West (DM 552 per cap.) added to DM 5.8 bil East (DM 257 per cap); in 1994 11.1% of the West residents and 11.5% of the Eastern dwellers fell below the official poverty line.  Since the main SH-burden falls to communal governments, however, these increases cannot be used directly to explain budgetary problems at the federal level.  The real reason behind the mounting deficit is that the Finance Ministry has regularly underestimated the tax-shortfall likely to ensue each year due to rising unemployment.  The Bundesanstalt fhr Arbeit spent DM 93.5 billion in 1992, but only took in DM 79.7 billion; its funds were cut by an additional DM 6.5 billion in 1996 when most of the special Job-Creation programs {ABM-Stellen} for the eastern states officially ran out.{24} 

Since 1992, a cascade of reform laws has begun to effect a shifting of the boundaries of the German Sozialstaat, but their real impact will not be measurable before the year 2010. The list of legislative changes adopted since unification -- only by virtue of “the Chancellor's majority” in many cases, as opposed to the überparteiliche support of earlier decades{25} -- includes the Law on Securing and Improving the Structure of the National Health Insurance (GSG) of 1992, the 1992 Pension Reform, the 1994 Law on Long-Term Care Insurance (Pflegeversicherung), the Law Revising Parental Allowances of 1996, the First and Second Health System Restructuring Laws (1. and 2. NOG) of 1996/1997, the Reform Law on Unemployment Assistance of 1996, the First Law on Changing Services and Benefits for Asylum Applicants of 1996, the Law Reforming Rights to Social Assistance of 1996, and the 1997 Reform Law on Statutory Pensions.  The main thrust of the 1992 and 1997 pension reforms was to slow increases in retirement payments by tying them to net rather than gross wages.  As of 1997 benefits will decrease from 70% to 64% of former gross income for most workers; civil servant pensions will not drop to an equivalent level until the year 2030. 

WOMEN’S  WORK  AND  WELFARE  DEPENDENCY:   HISTORICAL  DIMENSIONS 
Since the 1880s, the Germans have relied on a social security system built on the breadwinner model, and thus on the “normal-biographies” of men.  Tightly coupled with the Catholic social teaching of subsidiarity, the system promotes care by the smallest societal unit over provision by the wider public community.  Family members or relatives are obliged to ensure care for persons in need; the state intervenes, temporarily, only when the family is unable to meet its obligations.  Although it was not introduced until the 1920s under the influence of the Catholic Center Party, subsidiarity is now treated “as an irreversible principle guiding social service provision” -- despite the extraordinary degree of secularization witnessed in the FRG, and the once Agodless-communist” East, since 1949.{26} 

   A pro-family system in the traditional sense turns out to be not as family-friendly as the FRG constitution posits: The Basic Law mandates sexual equality (Art. 3) as well as special protection to mothers and children (Art 6) within the framework of a regulated social-market economy (Art. 20).  Kirsten Scheiwe stresses the extent to which the Constitutional Court (not created until 1951) had to force reluctant lawmakers into a simultaneous recognition of the Basic Law’s equality provisions with regard to family law per se.  Art. 3 GG notwithstanding, the 1957 Equalization of Rights Law specified the importance of a man’s responsibilities as “preserver and provider,” complemented by a woman’s duties as Athe female heart of the family.  It thus subordinated a woman’s ability to engage in paid labor to the interests of “the family” narrowly defined.  Between 1953 and 1980, the High Court read Art. 3 to mean “equality of the sexes despite objective biological and functional differences;” this phrasing was not explicitly rejected until 1991.{27} The “equal value” of women’s and men’s respective contibutions to family maintenance nonetheless found expression in regulations regarding support after divorce. 

The requirement that women adhere primarily to Kinder, Küche und Kirche roles remained on the books until after the First Marriage Reform Act of 1976, even if virtually no  working women were pursued for dereliction of duty by the time it was finally abolished.  Grounded in an increasingly obsolete family model (father, mother, two or more children), this insurance system supports marriage an und für sich, often excluding mothers who do not fall under the cover of holy matrimony.  It provides full health, long term-care and pension coverage to dependents at no extra cost to “the breadwinner,” profiting high earners with children and childless couples the most.  Efforts to operationalize either “the household” or “indivdual entitlement” as more appropriate units of analysis were put on hold by the 1996 “Savings Package” which privileges high earners even further.{28}

 The breadwinner model institutionalized discrimination against women as paid workers in West Germany well into the 1970s.  It upheld a system of low-wage labor and mandated a shorter “working” life for many women; wives needed husbands' permission to seek paid-work and had to document access to child care as a condition of employment until the mid-1970s.  By 1987, 52% of the FRG women had joined the paid labor force, 30% part-time, despite the “double burden” this implied; 90% of the GDR women engaged in paid employment prior to unity, backed by a wide array of “social rights.”  The old FRG's first compensation for years invested in child-rearing came in 1986 with the so-called Baby-Year Pension.  Initially Chancellor Kohl (born 1930), CDU-Chief Geissler (born 1930) and Labor Minister Blum (born 1935) sought to exclude the generation which would have benefited most: their own mothers, born prior to 31. December 1920!{29}  This group included countless Trümmerfrauen (a majority of the retirees by 1986), who had not only dug the shattered republic out of its own rubble but also bore the 11.2 million children who produced the Economic Miracle. 

A comparison with GDR women who enjoyed individual rights to social-security, along with many maternal (as opposed to wifely) support services prior to 1990, demonstrates the negative impact of a shorter paid-work life.  As of 1991, over 70% of the Eastern women had registered 31 or more years of active employment (and a commensurate level of full insurance contributions); 46.9% had completed over 40 years.  By contrast, 76.5% of the Western women had accrued fewer than 30 years of benefit-time, 10% had worked less than one decade, only 10% more than 40 years.  Among blue collar workers, the average pension paid out to West-women was DM 572 in 1992, DM 819 to East women.  Benefits for surviving spouses of white collar workers (a category which hardly existed in the GDR) were substantially higher: West-widows could count on DM 1,147, their Eastern counterparts only DM 472 per month, testifying to privileged status of marriage-dependency in the FRG.{30}

Average salaries in the eastern Länder still fall 15-20% short of their Western equivalents.  Yet a closer look reveals that the FRG’s growing income gap has little to do with the disruptions of unification.  The number of western households with a monthly net income exceeding DM 8,000 ($4,500) doubled between 1980-88; the proportion of Sozialhilfe-recipients meanwhile rose from 3.5% in 1980 to 5.9% in 1990.{31}  Though Hamburg boasted the greatest number of millionaires per capita in 1992 (1:360), its other residents were second only to Bremen in per capita welfare dependency (9%); the highest rates nation-wide are found in the Western city-states.  The segment of West Germans dependent on Sozialhilfe grew from 1.3% to 4.7% between 1963-1992 (809,000 persons in 1972, 1,769,000 in 1984, 2.8 million in 1990); one-third of all West Germans were classified as “poor” at least for short periods, 1984--1992.{32}

Two-thirds of all single parents in the old FRG fell beneath the poverty line in 1989; by 1992, 11.7% of all one parent/one child households, and 24.% of the one-parent homes with two or more children were drawing social assistance in the West alone.{33}  In 1994, 42% of the FRG's 1.5 million single parents had monthly incomes of less than DM 1,400 (not enough to be taxed); 23% of all SH recipients are single mothers.{34}  The number of children in Berlin dependent on state assistance rose to 75,500 in 1998, an increase of 3,000 over the previous year; up to 60% of Berlin’s eastern residents are allegedly too ashamed to apply for aid, even though they are eligible.{35}  Mass unemployment in the Eastern states is clearly not the predominant cause of poverty in Germany. 

The  proportion of  social policy expenditures financed through payroll-withholdings rose from 61.8% to 63.9% 1980-1993, while the share of benefit programs financed through direct taxation fell from 36.1% to 33.9%.{36}  Health insurance premiums alone rose from 12.2% in 1960, to 16.2% in 1980, to 19.65% in 1995.  Had unification been financed through tax increases (as oposed to sending jobless Easterners over 50 into “early retirement”), the contributory rate could have been reduced by 8%.{37}  Ever fewer wage-earners are required to carry an ever-expanding welfare burden, since whole professions are exempt from contributions to unemployment and pension funds (e.g., civil servants and the self-employed).  As noted earlier, the 1992 and 1997 pension reforms in united Germany slow the growth in retirement payments by tying them to net rather than gross wages (from 70% to 67% of former net income for most workers) but preserve the higher rates for civil servants until 2030. 

Constraints on choice and stress on “personal responsibility” in Germany thus far appear to be limited to the state's most costly program, national health insurance.  Prior to 1997, only persons above certain income levels could select private over public insurance funds; privatization initiatives of the 1980s were not very successful, since those who dropped out could not re-enter the public system (the GKV) in the event of a significant loss of earnings.  As of January 1997, all GKV members may choose their own insurance-fund, in an attempt to push the major providers into greater competition; yet all insurers are required to offer a minimum package of benefits, limiting their cost-cutting options.  Co-payments for some services, like prescriptions, increased for all users in July 1997, though they cannot exceed 2% of gross income (1% for chronically ill).  A corresponding 20% reduction in the wages paid during short term illnesses has been coupled with a 10% cut in sick-pay [Krankengeld] for long-term or chronic illnesses.{38}  Since health care in Germany, like Medicare in the USA, is the only welfare program which distributes benefits based on need, more equitable funding could easily be achieved through tax-based financing 

As to the perennial problem of women’s unpaid labor, Germany now “honors” care-work by way of  payments for home-care and credit towards retirement.  By 1992, over 1,123,000 citizens residing in private households required regular care; by 1995, 70% of those needing assistance were over 65; 73% received that care from daughters or wives, as illustrated in Figures 4 and 5.{39}  The 1995 implementation of long-term care insurance [Pflegeversicherung] ads a new “fly in the ointment” to the state's reliance on women's private care work, however.  Compensation under Care Insurance ranges from DM 750-2,800 per month for persons receiving professional in-home care, while care-taking relatives will receive payments of DM 400-1,300 for providing personal care, clearly a case of unequal pay for equal work.  Care-takers are insured incases of accident or injury. 
 

***************  Figures 4 and 5, Pflege-activity  about here  *********************
 

But as Anne Breuer notes, “the devil is in the detail” as regards the additional security women might expect to find under this recognition of unpaid care work.  As of 1996, time spent attending other family members was not calculated into the obligatory Anwartschaft [minimum period of contribution] for pensions.  It was treated, at best, as Berücksichtigungszeit -- but only if the care-taker was already in “entitled to contribute” to the insurance system [based on a set level of earnings], spent  at least 14 hours per week in home-based care activities and did not engage in paid work more than 30 hours per week.  According to Breuer’ calculations, care-based pension enhancements work out to average entitlements of  DM 160-603 per month, or less than DM 7,200 per year, in contrast to a yearly pension of  DM 24,500 for men earning an average DM 4000, per month gross, or DM 35,470 yearly for men earning DM 6,300 per month.  The law has created “more bureaucracy, but only a false sense of enhanced security” for women.{40}  Moreover, insurance agencies and “carriers” who “purchase” such services “are also forced to generate competition and bargain for low prices,” which not only compromises the quality of care but also tends to compress care-wages further.

There is another gender angle to Long-Term Care insurance, however, which could offer an intriguing, if indirect channel for further court regulation.  The “maximum subsidies” provided by the law fall below the actual average cost of this labor, especially as pertains to the use of professional services; pay rates for professionals engaged in institutional care are substantially higher.   In this sense Pflegeversicherung COULD provide the proverbial “thin edge of the wedge” needed to trigger binding EU jurisprudence in this area of social policy.  Art 119 TR, initially interpreted by the Court of Justice in such a way as to prohibit only “direct discrimination” against women has been expanded over time to incorporate forms of “indirect discrimination” as well -- but only insofar as it is tied to PAID labor.  If women are henceforth to receive payment for their work under the terms of LTCI, it certainly stands to reason that this care-work qualifies as Apaid work,” which would thus place it under the purview of the EU’s Equal Pay and Equal Treatment Directives {hmmmmm.... I had better contact a few people in Brussels about this thought).

Expecting “jobless” women to pick up the slack may lower unemployment statistics in the short run, but it will not mitigate the looming costs of long-term care and demographic deficits. The Federal Republic already lacks sufficient care-personnel for the elderly, having long relied on service-obligated Conscientious Objectors to fill the gap.  The demographic tidal wave which threatens to engulf Germany over the next two decades has already precipitated a cost explosion in the area of institutional care, as reported anecdotally to me by various childless friends during the summer of 1999 who are suddenly finding themselves financially accountable for their parents to a degree they had not anticipated (much less saved for) under the subsidiarity principle.  The main question is: who will be caring for/paying the way for childless individuals in another 20 to 30 years?

   Despite the many gender biases inherent in these programs,  German women are not forced to make the (literally) existential choices their American counterparts have traditionally faced.  Nor has postwar Germany subjected its women to determinations of “worthiness” based on race that have enabled US policy-makers to pit one group against another.  While the German social net is not without its holes, any attempt by legislators to deny citizens a basic quality of life would soon lead to a direct challenge before the Constitutional Court.  It may be a very uncomfortable net for some, and German society is still very patriarchal -- but the state provides a real net nevertheless.  Having lived in Germany East and West for some ten years since 1971, I have never encountered pockets of poverty there that begin to compare with the urban nightmare known as East St. Louis. 

Globalization and the Erosion of the Breadwinner Model
“Flexibility” for employers, allegedly der Königsweg to “competitiveness,” is radically redefining the nature of paid work, and thus raising new questions as to the value of women's unpaid work.  Germany and the United States have both seen phenomenal growth in the part-time/temporary employment domains, though much of this has by-passed sectors critical to a decommodification of women's unpaid labor, like child-care and elderly/disabled services. The share of part-timers among all gainfully employed laborers in Germany rose from 11.6% in 1984, to 12.9% in 1989, to 16.6 % by 1993, albeit without the proportionate benefits-package found in the Netherlands; 89% of those slots were filled by women.{41}  Half of all jobs allocated by state employment offices in 1996 were of a temporary nature: 54.3% of those in the young states, 46.4% in the old ones; 36.4% of the Eastern positions were limited to six months, 8.2% in the West.{42}  FRG citizens “temporarily” unable to engage in paid employment (due to maternity, for instance) lose their place on the career-track on a permanent basis.

One reason NOT to “slim down” the welfare-state in an age of shrinking and “temporary” labor markets is that it has also served as a direct utilizer of women's work -- well paid work at that.  By 1990, 58% of all Germans holding jobs in the fields of health, education and welfare (pink collar domains) were state employees, compared to 93% in Sweden and 38% in the Netherlands.{43}  Program cuts impel cuts in the number of  persons paid to deliver social services; new limits on health “cures” may result in the loss of 18,000 positions in rehabilitation services.  GDR women were driven out of the banking, insurance and social-service sectors after 1990; the first two were “remasculinized” thanks to privatization.

The US-American  maternalist model is fraught with its own perils, yet the breadwinner model is also one whose “logical consistency” can no longer be sustained, irrespective of  its violation of a woman's right to occupational choice under Art. 12 GG.  The 1990s have added three new twists to the unequal protection which flows from women's dependency on a male breadwinner.  First, marital union can no longer be construed as a permanent condition, thus eligibility requirements for many programs are sorely out of synch with the real needs of womenandchildren [see Figure 6].  Secondly, women find themselves increasingly out-in-the-cold with the spread of long-term or structural unemployment, since the adequacy of contributory retirement benefits (direct for men, derived for women) is premised on an unbroken span (35-40 years) of male work activity.  Thirdly, even women who choose to take refuge in the breadwinner-model will quickly learn that it only works as long as employers are compelled to provide job security and to pay their male workers a real “family wage,” two pre-conditions they are no longer intent on meeting.{44} 

************    Figure 6, Real-Existing Family Structures about here.   ******************
 

Cutback politics in the United States -- initiated by the so-called Angry White Men who dominated the Republican take-over of 1994 but subsequently embraced by New Democrats under Bill Clinton -- have effected a much more substantial paradigm shift as regards women's “place” in society than can be said of recent changes in the Federal Republic.  Under the terms of the 1996 Personal Responsibility and Work Opportunity Act, American “reformers” have made a very critical break with the past, insofar as they have redefined the image of deserving women along strict commodification lines: US welfare recipients are to be viewed henceforth as paid laborers first, and as mothers secondarily.  The 1996 legislation, in short, has deliberately done away with the pillars of the maternalist model, as formerly institutionalized in the (long highly stigmatized) Aid to Families with Dependent Children (AFDC) program. 
By contrast, changes in the German Sozialstaat, especially those precipitated by the 1992 pension reforms, the 1996 Sparpaket and the pending reforms of 1999 (mandated in part by Constitutional Court rulings) have tended to reinforce women's worthiness as mothers or homemakers, first, and as members of an economic reserve army, second.  Even a woman rendered involuntarily jobless finds her (means-tested) benefits subject to limits based on her partner’s income  (BVerfG, 18. November 1992), minus a fictive tax-free (unemployment) sum of  DM 1,007.90 per month -- which falls below the Sozialhilfe minimum also postulated by BvfG.{45}  A partial commodification of women's care-work in Germany (which Scheiwe labels a Acertain upgrading of family work within marriage”) does not substantially challenge their traditionally pre-commodified status within the welfare state, despite widespread evidence that this is not “the place” women themselves want to be.  Changes witnessed in Germany do amount to a “chipping away” of the breadwinner model, en route to a one-and-a-half-breadwinner model.  Yet the effects of this erosion are not in and of themselves salutory for women -- because the parts which have been “chipped away,” for the most part, have not been consciously and deliberately replaced with a gender-equitable individual-entitlement model. 

THE COURT AS POLICY-MAKER:   MOTHER-VERDICTS  AND  FATHER-STATE 
Alleged “feminist triumphs” in US courts have come with heavy price-tags as far as the development of a “positive category” of rights goes.  Victories under the German legal system have, by comparison, been far from feminist in nature but they are carving out new zones of welfare entitlement for women.  There is little direct overlap in the kinds of welfare claims brought before the national courts in the US and Germany.  The American examples demonstrate all too clearly the perils of judicial pronouncements which fail to take into account the complex, cumulative nature of structural disadvantages to women, in a system which claims to protect “individuals” but rarely examines their private circumstances, thus treating every one as “the same.”{46}  German jurisprudence recognizes the collectively experienced nature of gender “disadvantage,” but it does so by insisting that women either retain their difference OR become the same as male wage earners, leaving out millions who are trying to do both.  What follows is a very preliminary treatment of only a few of the judicial verdicts central to women’s place in the German welfare regime. 

The  constitutionally embedded nature of the Sozialstaat simultaneously opens new doors and imposes new limits on German welfare reform, as a number of allegedly women-friendly judgments issued by Karlsruhe have demonstrated over the last two decades.  Soon after an early attempt to tighten the welfare belt in 1975, the Constitutional Court decreed on 28. February 1980 that social insurance benefits do enjoy Art. 14GG protection [BVerfG 53, 257 zum Versorgungsausgleich in der Rentenversicherung - 2. Senat] which are nonetheless constrained by the proportionality or “equivalency principle” (that is, how much each party has actually “contributed,” measured monetarily].  Karl-Jürgen Bieback contends that social-assistance benefits perform the same function that physical property did for “the possessing class” in 19th century;  comprising a form of personal asset-accumulation, they provide a guarantee of material freedom and independence.  The national judiciary has done little, however, to concretize this abstract right, having struck down few of the dramatic cuts or restructuring measures of the last two decades based on Art. 14 claims. In only four instances (out of thirty cases) has the Court declared changes unconstitutional; two of those cases involved equal treatment within the system pertaining to pension-splitting and hardship conditions in divorce cases, already  covered under Art 3, Abs.1.  It utilized two further cases only to strengthen confidentiality qua privacy rights and to ensure adequate “transitional coverage” prior to the implementation new legislation (also applicable to the eastern states).

There have been a limited number of FRG cases in which men have claimed an infringement of basic “equality” rights as regards their exclusion from certain “privileges” accorded women, such as a monthly day off for household maintenance (BVerfG 1979, vol. 52, 369), from custody rights for unmarried fathers (BverfG 1981, vol. 56, 363), and the option of retiring at 60 with full benefits (BVerfG 1986, vol. 74, 163).  Germany’s High Court has not embraced a purely formal reading of the sexual equality postulate, however, with the result that few men have been successful.{47}  This contrasts starkly with jurisprudence in the United States where men’s claims, e.g. to spousal Survivor benefits (e.g., in Frontiero) have ultimately been used to establish women’s equal rights to provide for family dependents -- albeit posthumously!

Given the extraordinary state expenditures involved, it is not surprising that many German cases have focused on the equality/equivalency dilemmas of pension law.  The 1986 Baby-Year Pensions granted one year of  “work credit” per child to women born after 1921; their “fictional” pay was originally calculated at 75% of the average wage (0,75 PEP).  Since the mid-1980s, women who stay at home with their children (up to three years) receive an “educational” stipend of DM 600 per month, compared to average male earnings of DM 4,000 per month (which explains why so few men take advantage of their “equal rights” to parental leave).  Thus the 0.75 PEP was originally seen as an “upgrade,” given women’s usually sparse earnings.  Public protest forced lawmakers to phase-in supplementary pension benefits for mothers born prior to the cut-off year, beginning with the younger cohorts. 

The last group to be incorporated, born between 1917 and 1920, filed suit, charging sex and age discrimination, since their own entitlements would not take effect until October 1990! They also claimed “unequal treatment” insofar as women giving birth after 1992 became eligible for three years of credits.  A multi-case judgment process, beginning with the Mothers’ Verdict of July 1992  ultimately led the BVerfG not only to side with the older mothers but also to require lawmakers to find more effective ways of  rewarding time spent in child-rearing in every subsequent pension reform.

In its decision of July 7, 1992 [1 BvL 51/86, 1 BvL 50/87, 1 BvR 873/90, 1BvR 761/91], the Justices held that lawmakers were entitled to “recognize” years spent in child-raising under Art. 74, 12 GG, and that the terms of the Survivors’ Pensions and Educational-Periods Law of 1986 (Hinterbliebenengesetz, HEZG) did not violate the equality clause.{48}  Though the Court affirmed the importance of  “the generational contract,” it deemed the exclusion of mothers born prior to 1921 “justifiable” on the basis of  “objective considerations.”  The Court did not decide at the time whether women who had engaged in paid labor were entitled to claim maternal benefits in addition to other self-earned payments.{49}  It expressly mentioned the disadvantages faced by families with multiple children vis-a-vis childless couples encountering fewer “out of pocket” expenses.

The Constitutional Court had already ruled in 1987 that a woman's ability to retire at age 60 (with at least 15 contribution-years) and still receive full pension benefits was justified in view of the double [actually triple] burden of the worker-wife-mother.  Although it was willing to set clear “constitutional priorities” with regard to abortion [in ways likely to turn more women into mothers], Karlsruhe did not see fit to uphold the “special protection of mothers” of Art. 6 in the pension reforms of 1989, 1996 and 1997.  Legislators raised mothers’ “fictive contributions” to the GRV to three educational-years per child in 1995, resulting in an ascribed benefit of DM 543 per month.  Following further BverfG rulings in 1996 [Beschluß vom 12. March 1996 --1 BvR 609/90 u. 692/90], parliamentarians added child-rearing supplements to the pensions of wage-earning women as well, and increased their fictive contributions to 100% of the average wage, to be phased in by 2000. {Note: the credits that can be countered toward pensions under Pflegeversicherung are still pegged at 75% of the average wage, even though the number of years that may be spent caring for a disabled child or parent certainly extends well beyond three years and would thus prove even more detrimental to labor-market re-entry.}

 Some 380,000 women had taken advantage of the retirement-at-60 rule in 1995; yet the 1996 Savings Packet overrode (alternatively, “violated”) the 1992 Mothers' Verdict by raising the female age for retiring with full benefits to 65 (though public outrage led the Kohl Government to postpone implementation by four years).  The average pension for all women stood at DM 773 per month in 1996, DM 1,847 for men.{50}  Women who retire early under the new stipulations will have 3.6% subtracted from their net benefits for one year, 10.8% for three years, and 18% for retiring five years early, beginning in 2001.  Amounting to a “breach of faith” vis-a-vis women over 50 who had structured their work lives around the age-60 option [Vertrauensschutz being another principle the justices supposedly use to “balance” conflicting rights], these changes chip away at the generational contract and reinforce a redistribution from bottom to top: Women who assume a double burden secure the pensions of childless persons and the non-earning wives of high earners privy to “tax-splitting.”  Given that 1.8 million females were involuntarily unemployed in 1996, extending the worklife of older women comes at the expense of younger ones.  Some retire early to care for older, already retired and/or disabled spouses, and will thus be penalized in a double sense, given that lower paid “personal care” subsidies will further reduce their disposable incomes.

On a different but related plane, the Courts have also sought to reconfigure Germany's dual child-subsidy system, comprised of direct payments [Kindergeld] and dependent tax-credits [Kinderfreibetrag] over the last three years.  As of 1997, the pro-natalist Kohl Government provided a direct subsidy of DM 200 monthly for the first and second child, DM 300 for third, DM 350 for four or more; the “family-oriented” CDU initially attempted to postpone this long-planned increase in light of the deficit -- along with a guaranteed right to day-care places, commensurate with the 1993 abortion law -- invoking the wrath of even Kohl’s hand-picked anti-choice Frauenministerin, Claudia Nolte.  Parents whose taxes fall into the 26-53% brackets can utilize a tax-credit of DM 149-305 per month, up to DM 6,264 per year, an option most beneficial for those earning DM 77,000-120,000 per year.{51} These changes were mandated by the Family Taxation Verdict {Familienbesteuerungsurteil} of  25. September 1992.  The High Court insisted that an “existential minimum” for each child must remain tax-free, calculating that the amount necessary to maintain a child is DM 600 per month (to keep parents from being forced onto welfare).  The cost of raising a child until the age of 18 -- estimated to fall between DM 800,000-900,000 -- is money which parents cannot invest in private pensions or in other assets.{52}  The 1997 “increases” clearly fell short of the Court's requirements, leading the BVerfG to reaffirm its stand in a January 19, 1999, requiring parliamentarians to amend the law  in ways that do not “disadvantage” married couples with children relative to single parents.

The financial parameters specified by the Karlsruhe in 1999 could cost the new SPD-Green government up to DM 20 billion, out of a total social-welfare budget of DM 1,200 billion.  As of January 1, 1999, child benefits will rise to DM 220 for the first, DM 250 for the second, DM 300 for the third and DM 350 for each additional child.  Families will now enjoy a tax-free deduction of DM 5,616 for “educational” purposes, as well as a DM 4,000 write-off for the first child and DM 2,000 deductions for all further children beyond the DM 6,912 “existential minimum.”{53} 

The BVerfG has slowly established the positive duty of the state to protect individuals against certain kinds of need, as expressed in its Decision over the Protection of an Existential Minimum with reference to Income Tax Law [BverfG 82,60 (104)]; 87, 153 (170f); 91, 93 (108ff, 111) and operationalized in the Kindergeldrecht of 1994 [BverfG 94,93 (108,ff III)].  It has done so one group at a time, however.  Most verdicts “testing the limits” of social rights rest on Art. 3, Abs. 1GG (equal treatment), not on Art 1, Abs. 1 GG (inviolability of human life).  Though it usually calls for a stricter measurement standard on part of lawmakers when “equality rights” involved, the judiciary has accepted a tightening of requirements for contributory periods with regard to occupational/disability pensions, despite its recognition that women would be disproportionately affected.  It has subsequently improved the status of wage-earning mothers relative to that of non-earning mothers, although the protection afforded by Art. 6, Abs 4 is not contingent upon one’s standing in the labor-market. 

Calculating women’s care activities into pension entitlements is not an attempt to close the earnings gap per se but only an effort to “honor”child-rearing services (since Art. 6 does not allow educational contributions to be “completely ignored”); but it still accords greater “merit” to those who contribute financially to the system [BVerfG 64, 229 (238ff); 65, 194 (122ff) BVerfG 12. 3. 1996 ‘ BVG 94, 241].  The social insurance system is obligated to guarantee benefits for “the average contributor” at a level which exceeds the bare minimum foreseen by means-tested programs.  The problem here is that 53% of the population finds itself excluded, by definition, from the category deemed “average” in a male-normed system.  Constitutional amendments adopted in 1994 have strengthened the wording of Art. 3 slightly, inferring a postive duty on the part of the state to bring about  equality, but this tendency runs counter to post-unity discourse stressing  the free-market economy, as opposed to the post-war social-market economy -- the 1998 election of  former JUSO/SDS/’68 activists to national office notwithstanding. 

In some respects, Constitutional Court judgments add up to a case of  “winning multiple battles but still losing the war.”  Women are still compelled EITHER to opt for higher levels of real pension-protection embedded in the existing Auslaufmodel, OR they can aspire to potentially higher pensions under a modern Euro-model for which the infrastructure has yet to be created.{54}  The dilemma is that pension supplements have been added in the name of  protecting marriage and family, not as a way of equalizing women’s status by paying them more specifically for what they do.{55}  As such these “reforms” pit mothers against childless women much the way American judges were inclined to do in the 1970s.  Women who raise children, I might add, sooner deserve 16-18 years’ worth of pension supplements,  since the constraints on one’s ability to work a 50-70 hour week and thus advance professionally certainly do not end with the diapers! 

Obliged to weigh social against macro-economic concerns (solvency of the public household, Standortkonkurrenz, the equivalency-principle, and rights of long-term premium-payers), the Court can apply many different criteria “in adapting long-term >contributions’ to pensions, and lawmakers have been known to change them again and again.”{53}  German courts do set minimal protection thresholds and prevent a denial of protection, but individual claims are relativized by the group nature of Art. 3 and Art. 6 rights.  The question here reads: Why does the Constitutional Court, which has proved quite capable of dictating the specific content of laws which clearly constrain women’s “choices,” exercise such great self-restraint when it comes to mandating broader, positive choices in areas even more explicitly protected by the Grundgesetz? In its 1993 abortion ruling, for example, the justices specifically declared that the Art. 1 rights of the foetus supersede the self-actualization/inviolability rights of women warranted by Art. 1 GG and even temporarily suspend her Art 4 GG rights (freedom of conscience and religion).

LEGAL CLARITY VS.  LIFE’S COMPLEXITY
The US welfare system was grounded in the historical premise that only women left without “supporting men” were worthy of public assistance, forcing many to abandon marital and other relationships in order to qualify for aid.  In addition to having been declared officially “equal” (despite tons of empirical evidence to the contrary), “assertive” women are now blamed for the “fatherless” families the system has fostered, even becoming targets of crude assault by youth-music (rap, hip-hop) scenes.  Welfare policies build on the identity of the poor as “undeserving” because that identity helps to preserve the “deserving” nature of other societal institutions, such as marriage -- albeit only certain kinds of marriages since both Germany and the United States uphold tax-penalties for dual earning couples receiving equivalent incomes.  To render women “undeserving” or “flawed” in the neo-liberal [“we are all equal now”] 1990s requires that lawmakers essentially deny the value of their reproductive work and posit it as a totally private affair.  Stereotyping of the poor has become so crucial to the context/content of welfare policy-making in the US that only the embrace of a new concept of citizenship enumerating concrete soci-economic rights can break the “path dependency” of the poor.  The “welfare fate” of indigent men, meanwhile, is also tied to the courts, but at a very different level: “We have a policy for young men, and it is called prison... Almost a third of African American men between the ages of 18 and 34 [author’s note: about 1.5 million] are either locked up, on probation or parole, or awaiting trial.”{57}  Prison at least provides food, clothing, shelter, and health care, in contrast to the fate of increasing numbers homeless women and children, and many other “working poor” families. 

  Outright stigmatization was never a salient feature of the German Sozialstaat, due to the leveling effects of two World Wars, and owing to the “blood-based” nature of German citizenship and organic notions of “national community.”  Still, increasing strains on state and communal governments brought on by the increasingly “permanent” nature of Sozial-Hilfe payments to solo-parents and refugees (a system never intended to serve as a long-term replacement for waged work) has begun to chip away at the FRG’s older culture of solidarity.  As is true of the U.S.,  persons who find themselves at the bottom of the welfare ladder have not only been hit disporportionately by recent cuts (e.g., as pertains to Arbeitslosenhilfe); they simultaneously testify to the ever more deleterious character of the breadwinner model per se, given significant changes in life-style and family structure.

Traute Meyer suggests that the erosion of the breadwinner model has probably not been intentional; legislators have been forced to adopt a more modern stance by the BVerfG {58} -- and indirectly by unification, since Bonn could not treat Eastern women used to a individual entitlement worse than the old regime had!  While it may be true that politicians no longer insist on a model premised on female rights derived from an association with men, this does not mean that cumulative care-work benefits  or even future improvements dictated by courts will secure a “birth-strong”  generation of women against poverty in old age, trapped as they are between a system which still denies them equal access to high paid, secure jobs, on the one hand, and growing pressures to “earn their own keep,” on the other.  The fact that the chipping away of the breadwinner model has not been part of a conscious plan to re-structure the welfare state in gender-equitable terms is what should make us all suspicious about what it to come!  The intention was and remains retrenchment plus privatization; and emphasizing the “private nature” of anything has always had negative consequences for women.  The assumption of power by a new generation of Red-Green [SPD-Die Grhnen] policy-makers has not stopped the “leaner and meaner” globalization forces from becoming a salient feature of current FRG-”reform” discourse, (even if Bundesminister Riester’s “mandatory private-pension” proposal turned out to be DOA). 

  The end of the GDR as a competing welfare model coincided with full SEA implementation in 1992.  Like the 1990 Treaty on an inter-German Currency Union, the move towards a European Monetary Union paid little heed to social protection issues. Efforts to regulate conditions beyond the immediate workplace require the unanimous consent of the Member-States, as does any infringement on “employer rights.”{59} But the EU has also generated countervailing forces: The Court of Justice has decreed a few social rights “inalienable,” e.g., equal pay, equal treatment, and the transfer of earned pension benefits.{60}  Germany has tried to structure its Pflegeversicherung in such a way (allowing for direct payments to care-givers) to preclude benefits from leaking across its borders,  thoug h Member-States can no longer restrict the payment of benefits only to “native citizens” within their own boundaries.{61}  EU pension policy is Aextremely complex and constantly changing,” having shifted from an equal treatment approach {Bilka-Kaufhaus; Nolte v. Landesversicherung-sanstalt Hannover] to a compensatory, positive action approach, to a yet-to-be-implemented   mainstreaming approach.{62}  As winding and incomplete as this path may be, the Court of Justice has embraced a theory of positve law that will begin creating spaces for women-friendly welfare rights.  The equal treatment principle has been regularly applied to European case law with regard to both statutory and occupational pension schemes since the mid-1970s (starting with Defrenne).{63}  Still resticted by way of the “workplace” requirement imposed by Art. 119 TR, the CoJ will eventually find new grounds for solidifying welfare rights by way of gender provisions incorporated into the Amsterdam Treaty of 1995: anti-discrimination, positive action, comparable worth and mainstreaming are just a few of the tenets that now acquired quasi-constitutional status.{64}  The potential for “social dumping” within the national borders of the United States is greater than the prospect of “welfare-cases” migrating across EU-boundaries, since Member-States are being driven toward common regulation.

CONCLUSION:   “PFADFINDERINNEN”  IN  AN  AGE  OF  WELFARE  EROSION 
Disproportionately dependent upon various types of public assistance, women are disparately affected by short-term and long-term asymmetries inherent in welfare systems,  by obsolete definitions of “the family unit,” and by changing presumptions that a decision to bear children should be contingent upon (US) or traded against (FRG) long-term economic activity.  Motherhood remains  a noble profession, but it continues to rank among the worst paid ones.  Maternal responsibilities impede women’s opportunities to accrue the wages, work-hours and savings they  need to secure their own well-being in later years.  Group-based treatment  “poses a special risk when the group itself lacks power in the processes by which its concerns are evaluated.”{65}

The good news in the United States is that both legislative and judicial decision-makers have openly abandoned the cult of true womanhood. The bad news is that they have jettisoned the idea that maternal roles are intrinsically valuable to society.  Motherhood becomes a question of personal responsibility, paid labor becomes the precondition for state assistance.  Individual states may provide the means necessary to reconcile these two roles, but they are not obliged to do so.  For economic purposes, women are to be treated “the same as men,” expected to take on “breadwinner” roles for themselves and their children; but they still lack the one magic ingredient which made it all possible for men: A WIFE!

Under the federal “five years and you're out forever” rule, US policy-makers have rendered the liberal male creed a universally applicable one: no dependency is a good dependency.{66}  The “natural roles” presumption and the “doctrine of separate spheres” which gave rise to dependent-benefit systems for US women are now being pitted against the image of a “thoroughly modern Milly.” Whereas American welfare reforms shift women from a state of  separate-and-unequal dependency to a uniform-but-unreal state of independence, alterations in the German social-state offer women restored dependency based on difference at low- benefit levels.  The Court’s adherence to the “equivalency” principle means that individual women have to decide whether they prefer “equal rights by way of the Scylla of childlessness or the Charybdis of an extreme double burden of family and  paid work.”{67}  Cutting women loose from old dependency models does not automatically ensure new sources of market-based independence.

The best way to secure women against poverty and dependence is to start out with AN ACCURATE DEFINITION OF THE PROBLEM, which means jettisoning “abstractly normed” models in favor of  responses to  place-based, “real-women” needs.  Neither lawmakers nor the courts have addressed the true sources of welfare policy failure in both the United States and Germany: namely, the fact that poverty is a structurally embedded condition for clearly defined segments of the population, not the result of  “failure” or laziness on part of any one individual or group. 

Rarely perceived as social policy-making bodies par excellence, national courts do exercise a substantial influence over the definition of  policy means and ends. We thus have two fundamental options here: we can either CHANGE OUR RESPECTIVE CONSTITUTIONS -- an unlikely prospect at this point -- OR WE CAN CHANGE THE JUDGES INTERPRETING THOSE CONSTITUTIONS!!!  It is  quite striking that the very bodies charged with the ultimate power to interpret “the law of the land” are the ones that have proved most impervious to gender change in  their  own composition.  Women’s long march through the institutions has led them to the steps of the courthouse, literally as well as figuratively, though the broader effects will first be seen in another decade or so, given the slow pace with which precedent-setting verdicts take root in public policy. 

Addressing the European Parliament’s Committee on Women’s Rights in 1995, EU Social Commissioner Pedraig Flyn (hardly an avowed feminist!) promised to back a proposal to select future CoJ justices by way of a parliamentary committee instead of through the traditional system of national appointment.{68}  Following the Court’s own Kalanke Urteil, the entire Commission held in March 1996 that, except for absolute quotas, positive action with regard to such appointments is acceptable, and it amended its own Equality Directives of the 1970s accordingly.  A potential trail-blazer in the field of welfare rights, the European Court of Justice, has,  paradoxically, never counted a female justice among its ranks, though women have been appointed to the second-tier Court of Auditors created in the 1980s. 

 Do women in High Court settings really make a difference ?  A growing body of evidence on both sides of the Atlantic suggests that they do, although I focus here only on the future prospects of attaining greater gender-justice in the FRG.  Obviously Germany has “come a long way, baby,” since 1921 when 99% of the eligible voters at the Fourth Congress of German Judges rejected a proposal to allow women to become professional judges.  As reported by Renate Jaeger, women accounted for 4% of all FRG justices in 1965, and about 20% today.  One completely frauenfreies Gericht, the Oberlandesgericht (OLG) Nuremberg notwithstanding, women hold up to 40% of the judgeships in some Lander, though 86% of all OLG justices are male. The Bundesverfassungsgericht included three women justices -- Erna Scheffler, Wiltraut Rupp-v. Brhnneck, Gisela Niemeyer, all belonging to the First Senate -- out of a total of 58, between 1951 and 1994.  The Second Senate was completely devoid of women 1951-86, added one, then another over the next eight years and has had three female justices at once as of 1995.{69}

The  proportion of female law students in the FRG rose from 12% in 1965 to 45% by 1988; their share of successfully completed “second state examinations” stood at 27% in 1985, and 33% in 1989, acounting for 40% of the ReferendarInnen by 1991.  In 1989 women comprised 6% of all federal judges, 8% in hoeherem Dienst. As of 1995, 26.3% of all German judges were female, and nearly 48% of those “on probation.”  The fact that 37% of all justices are over 50, and mostly male, suggests that the next wave of retirements will see a significant shift in the gender composition of  the German judiciary; women comprised only 7% of the justices and state prosecutors over 55.  Within Germany’s highly specialized division of legal labor, women held 13% of the constitutional judgeships, 26-28% of those in the civil, labor and social courts, 23.8% of the administrative court positions, but only 10% of the slots in the finance courts.  A 1993 German survey of 4,522 female justices, prosecutors, and lawyers revealed that two-thirds of those polled still bore main responsibility for housework.{70} 

More important than their numerical presence  per se, however, is the extent to which individual female judges over time gradually recognize the need to define  -- or redefine- critical legal postulates upon which existing gender inequalities are based. The first three women to grace the bences of the Constitutional Court did, in Jaeger's assessment, make quite a difference albeit in different ways. Erna Scheffler, a justice of the “first hour,” served as a member of the High Court from 1951 to 1963, joining at the age of  58 and retiring at 70. She pleaded early on for the realization of sexual equality with regard to citizenship/naturalization rights, for the application of the equality postulate to civil service law (e.g., elimination of the celibacy clause) and tax laws, as well as for women’s freedom to choose/keep their own names upon marriage (not granted until 1991, under BVerfGE 84,9 [20])!). She secured critical majorities regarding equality in marriage law (BVerfG 3,25, 1953), changes in tax law (BVerfG 6, 56) elimination of all-male inheritance rights (BVerfG 15, 337) and mothers’ rights regarding orphan and widow’s pensions (BVerfG 17, 1; BvVerfG 17, 2).  She was retroactively labeled the Advocate for Women’s Rights and the Mother of Equal Rights (a title which should have accrued to Selbert). 
Less outspoken in her advocacy of women’s rights, Wiltraut Rupp-v. Brhnneck is perhaps best remembered for her role as one of the Court’s first dissidents; dissenting opoinions were first permitted in 1971. Her interests focused on Family Law, according equal stauts to children born out of wedlock (BVerfG 25, 167), and ending marriage bans for women receiving orphans’ benefits (BVerfG28, 324; 29, 167).  Her dissenting opinion regarding Paragraph 218 on abortion (BVerfGE 39, 1 [68ff])carried great weight, all the way through the most recent decision of 1993 (BverfGE 88, 203), maintaining that the state was not obliged to impose criminal punishment in its efforts to uphold the inviolability of human life. Gisela Niemeyer, by contrast, also made use of the dissenting opinion but those votes were hardly even mentioned in what it judged to be one of Germany’s “classical” treatments of “special votes.” In Jaeger’s final analysis, all three of these women left a distinctive imprint on the Germany’s fledgling independent  judiciary {71} -- none of which would have been possible, had Elisabeth Selbert (born in 1896) not  beaten the odds of becoming a lawyer before the Nazis banned all women from the practice, or if she had not  fought tenaciously for the inclusion of Art. 3 at the time the Basic Law was ratified. Ironically the Verfassungsmutter who gave birth to the Gleichheitsgebot  (Art. 3GG) was never granted her dream-job as a Constitutional Court Justice, even though she did not retire from her own practice until she reached the ripe old age of 85; she was 90 at the time of her death in 1986.

The country’s first female Chief Justice,  Jutta Limbach (born in 1934), was elected to the post of BVerfG President in 1994.  In contrast to the indirect “conversions” of her predecessors, Limbach established her reputation as an equal-rights advocate in a number of professional domains, first as a Law Professor at the Free University of Berlin, as a co-publisher of the Schriftenreihe zur Gleichstellung der Frau, and later during her tenure as (SPD) Justice Minister in Berlin.  The mother of two children, Limbach makes no secret of the fact that she would have voted quite differently on the 1993 abortion question, in particular.{72}  She understands the Court’s role as mediating between “law and politics,” implicitly challenging the “once and forever correct” nature of decisions excluding the life experiences of the country’s demographic qua democratic majority.{73}

 Binding verdicts issued in both the United States and the Federal Republic testify to the importance of constitutionally explicit rights, embedded in an understanding of the state as a positive actor.  Though still not in a position to redefine the legal  work-culture, behavioral models for advancement (das sogenannte “drittes Staatsexam”) or prevailing constitutional norms per se, German women can anticipate a growing capacity for re-interpreting those norms over the next decade.  American welfare advocates will have a much harder time securing gender-justice in the United States, both in light of the Supreme Court’s ongoing reluctance  to adopt a “strict scrutiny standard” as pertains to sex and “equal protection,” and due to its meditated refusal to strike a balance between equality, economic and social rights.  The case of Sandra Day O’Conner does show, however, that even solidly conservative women can be swayed by changing currents of discrimination.{74}  On the other side of the Atlantic, equality, economic and social rights are all  explicitly, if paradoxically, embedded in the German Grundgesetz.  There it is sooner the nature of “the balance” among these rights that is sorely in need of redefinition.

 Looking back on fifty years of gender and welfare rights in Germany, it is clear that “equality” is not achieved by simply “tacking on” women’s concerns to the existing mix of welfare programs.  As Ruspini observes, Awomen’s deprivation cannot be understood and tackled using the traditional instruments of policy based upon the view that poverty is a static and gender-neutral phenomenon.{75}  The continuing reliance on subsidiarity in the shaping of Germany’s Long Term Care Insurance, for instance,  demonstrates the extent to which the formula “add poorly paid care-work and stir” will merely compound the demographic problem once the Baby Boom generation itself requires intensive long-term assistance. 

At this particular historical/demographic juncture, the exercise of a new kind of “judicial discretion” could really make a difference, compelling lawmakers to balance conflicting rights claims in new ways.  Extending Jaeger’s conclusions about the need for new kinds of “justice” to the welfare rights domain, I conclude with this thought: We will know that we have achieved gender-equal economic qua social security when ”wir aufhören, uns über den Frauenanteil zu vergewissern und über den Fraueneinfluß zu spekulieren.”{76}  Real  liberty and justice for all will have been attained when feminist analysts,  policy wonks, welfare advocates,  lawyers, and judges -- male and female -- recognize that the quality of democracy is most accurately assessed in terms of the rights a nation accords its weakest, not its strongest members.