Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, March 28, 2017

Books: The Public Law of Gender--From the Local to the Global

Kim Rubenstein & Katharine G. Young, eds. The Public Law of Gender: From the Local to the Global (Cambridge Univ. Press 2016)

With the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, it is timely to document the raft of legal reform and to critically analyse its effectiveness. In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame. Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.

The Table of Contents is here.

March 28, 2017 in Books, Constitutional, International | Permalink | Comments (0)

Friday, March 24, 2017

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

March 24, 2017 in Constitutional, Judges, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

New Books: Sex and the Constitution

Geoffrey Stone, Sex & the Constitution (2017)

From the publisher:

 

Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.

 

Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.

 

The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.

 

The twentieth century gradually saw the emergence of bitter divisions over issues of sexual “morality” and sexual freedom. Fiercely determined organizations and individuals on both the right and the left wrestled in the domains of politics, religion, public opinion, and the courts to win over the soul of the nation. With its stirring portrayals of Supreme Court justices, Sex and the Constitution reads like a dramatic gazette of the critical cases they decided, ranging from Griswold v. Connecticut (contraception), to Roe v. Wade (abortion), to Obergefell v. Hodges (gay marriage), with Stone providing vivid historical context to the decisions that have come to define who we are as a nation.

Also of related interest might be Leigh Ann Wheeler, How Sex Became a Civil Liberty (Oxford 2012).

March 24, 2017 in Books, Constitutional, Reproductive Rights | Permalink | Comments (0)

Tuesday, March 21, 2017

Following the Changes in the Supreme Court's Abortion Law

Mary Ziegler,  The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

 

March 21, 2017 in Abortion, Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Monday, March 20, 2017

EEOC Enforcement Guidance on Employer Questioning about Pregnancy

In light of the article Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch, here's a summary by the Equal Employment Opportunity Commission on what the existing state of the law is (and which a future SCOTUS could change) regarding employer treatment based on existing or intended pregnancy.

Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues

These Questions and Answers address the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) originally released on July 14, 2014, and recently updated in light of the Supreme Court's decision in Young v. United Parcel Serv., Inc., --- U.S. ---, 135 S. Ct. 1338 (2015). The updated Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.***

1. What workplace actions are prohibited under the PDA?

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).***

3. May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?

Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.

March 20, 2017 in Constitutional, Pregnancy, SCOTUS | Permalink | Comments (0)

Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech

Petition for Certiorari, National Institute of Family & Life Advocates v. Becerra

QUESTION PRESENTED

The State of California enacted a law called the “Reproductive FACT Act.” The State admits its purpose is targeting “crisis pregnancy centers” based on their viewpoint that “discourag[es]” abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low cost abortions. The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a “circuit split” with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit.

 

The question presented is: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

The Ninth Circuit's decision below is here.

March 20, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Friday, March 17, 2017

Thinking through the Impact and Application of the Supreme Court's Decision in Whole Woman's Health

Mary Ziegler, The New Negative Rights: Abortion Funding and Constitutional Law after Whole Woman's Health:

Abstract

The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.

In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.

The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.

Mary Ziegler, Liberty and the Politics of Balance: The Undue Burden Test after Casey/Hellerstedt:

Abstract
The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.

Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.

March 17, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Thursday, March 16, 2017

Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography

Katharine Gelber & Adrienne Stone, Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family.

A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas.

In this chapter, we examine this debate through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

March 16, 2017 in Constitutional, International | Permalink | Comments (0)

Tuesday, March 7, 2017

NV Prepares to Ratify ERA

Nevada is About to be the First State in More Than Three Decades to Ratify the Equal Rights Amendment

Nevada is about to do something no state has done in three-and-a-half decades: Ratify the Equal Rights Amendment.

Dusting off a decades-old debate about whether to enshrine women's rights in the Constitution is of questionable value to the amendment's prospects, say analysts. But that doesn't mean it's a meaningless gesture, and its revival certainly says a lot about the women's rights movement in 2017.

Even if Nevada becomes the 36th state to ratify the amendment, its entry into the Constitution is a loooong shot. The deadline to ratify the amendment ended long ago — in 1982 to be exact. And even if Congress reopened it, it's not clear any other state is seriously interested in playing along.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.***

A quick history/civics recap: Changing the Constitution is one of the most difficult things in all of governing, but Equal Rights Amendment supporters have come tantalizing close. In 1972, after a decade or so of debate, Congress passed it and sent it to the states for ratification. (Under one process to change or add a constitutional amendment,  38 states -- or three-quarters -- must ratify it, whether via their legislatures or a state convention.)

Congress gave the states an entire decade for 38 states to get that done. In the end, 35 did.

The amendment has been introduced in Congress off and on ever since, but its fell flat. States haven't bothered to touch it.

Until now. The Democratic-controlled Nevada State Senate passed it mostly along party lines on Wednesday. The Democratic-controlled State Assembly will pick it up from there, where it's expected to sail through on party lines.

"It's like a no-brainer. Equal Rights Amendment," said state Nevada Sen. Pat Spearmen (D), the author of the bill. "Equal rights. That's what it is. It's just equal rights."

Nevada's governor is a Republican, and he hasn't commented on the amendment. But Democrats in Nevada say the parliamentary logistics of this mean the legislation doesn't need Gov. Brian Sandoval's signature.

Most Republicans in the state legislature aren't impressed. Their objections to the amendment in 2017 are similar to objections in the '70s and '80s: It could require women to enlist in the draft. It's not necessary. It's symbolic.

"An equal rights amendment that doesn’t have exclusions to protect families is something I can’t support," state Sen. Beck Harris, a Republican and the sole woman to vote against the amendment, told the Reno Gazette-Journal.

March 7, 2017 in Constitutional, Gender, Legislation | Permalink | Comments (0)

Monday, March 6, 2017

President Obama's Executive Orders on Women's Rights Issues

Mary Pat Treuthart, Feminist-in-Chief? Examining President Obama's Executive Orders on Women's Rights Issues, 91 Chicago-Kent LRev 171 (2016)

"I didn't run for President so that the dreams of our daughters could be deferred or denied. I didn't run for President to see inequality and injustice persist in our time. I ran for President to put the same rights, the same opportunities, [and] the same dreams within the reach for our daughters and our sons alike. I ran for President to put the American Dream within the reach of all of our people, no matter what their gender, or race, or faith, or station." President Barack Obama, Remarks by the President and the First Lady at International Women's Day Reception (Mar. 8, 2010) * * * 

 
Initially  . . .  a report card of sorts on President Obama's first 100 days in office concluded “[t]he Obama Administration has taken giant strides for women in terms of employment, reproductive health[,] and elevation of women's rights domestically and globally.” Particular early achievements noted by the editors included (1) overturning the global gag rule; (2) appointing seven women to cabinet-level positions; (3) creating the position of ambassador-at-large for women's global issues; (4) establishing the White House Council on Women and Girls (CWG); and (5) restarting the contributions by the United States to the United Nations Population Fund (UNFPA). All of this seemed like a propitious start, but the question posed by some observers was: Would the momentum continue?
 
 A year later, the reaction from prominent women leaders to President Obama's progress on gender equality was decidedly more mixed. Terry O'Neil, president of the National Organization for Women (NOW) opined that “[t]he administration is not taking enough of an initiative to change the reality for women.”***

 

What are women's rights issues? Certain topics may be more readily associated with the concept of women's rights in the policy arena, but there is no single unassailable definition of the term “women's rights issues.” A common description is a “set of policies that concern women as women.” Another approach is to characterize women's rights issues as those “where policy consequences are likely to have a more immediate and direct impact on significantly larger numbers of women than of men.” At least one scholar proposes that a degree of intentionality is a prerequisite and that women should be the “intended beneficiary, constituency, or object” of a particular action. Mere heightened interest by women in a specific topic would not necessarily categorize it as a women's rights concern; rather, the promotion of greater equality and opportunity for women while recognizing their differences from men is an essential part of the equation. Here, being mindful of the aforementioned explanation, this examination will concentrate primarily on executive orders that involve the empowerment of women, gender-based violence, reproductive rights, and employment.

March 6, 2017 in Constitutional, Gender | Permalink | Comments (0)

Tuesday, February 14, 2017

Gender and the Structural Constitution

Paula Monopoli, Gender and the Structural Constitution, 76 Maryland L.Rev. Endnotes 17 (2016)

Abstract:      

This paper is based on remarks delivered by the author for the Constitution Day Lectures at the University of Maryland Carey School of Law. The paper draws on the author’s prior scholarship on gender and constitutional design to explore why more than eighty-five countries have already had female prime ministers or presidents while the United States has not. The paper’s thesis is that this puzzle may be explained, in part, by what some have called the “structural constitution.” Two design choices by the Founders made it less likely that a woman would ascend to the presidency. The first of these structural features is the choice of a singular or unitary executive that combines the head of state, head of government and commander-in-chief function in one person. The impact of that choice can be amplified by executive activism and the power of the courts via judicial review to define the scope of the executive as more or less expansive. The second structural feature is the choice of direct presidential selection, filtered through the Electoral College. With Hillary Clinton as the first viable female nominee of a major American party, this paper considers these structural constitutional choices, how they construct our politics and their impact on the likelihood that Clinton will be elected.

 

February 14, 2017 in Constitutional, Gender | Permalink | Comments (0)

Tuesday, February 7, 2017

A New Equal Rights Amendment Based on Social Reproduction: Lessons from Global Constitutionalism

Julie Suk, An Equal Rights Amendment for the Twenty-first Century: Bringing Global Constitutionalism Home, Yale J. Law & Fem. (forthcoming)

From the Abstract:     

[T]his Article proposes a new vision of the ERA’s legal function, drawing on the experience of global constitutionalism. Focusing on countries that adopted constitutional amendments on sex equality after the ERA’s failure, this Article shows how the constitutional right to sex equality can promote gender balance in positions of political and economic power, combat practices that disadvantage mothers in the workplace, and shift family care policies to increase fathers’ participation in childcare. In Europe, constitutional sex equality amendments since the 1990s go beyond outlawing sex discrimination; these new amendments engender and legitimize legislative efforts to disrupt the traditional gendered division of roles in the family and public spheres. Constitutional courts in Germany and France have construed these amendments as articulating actual equality between women and men as a principle by which the constitutional order’s legitimacy is measured, rather than as an individually enforced right. In the United States, there are some synergies between European constitutional innovations in gender equality and public policies that are emerging piecemeal at the state and local level.
 
States are leading the way in legislating pregnant worker fairness, paid parental leave, and childcare. A motherhood movement and a wide range of actors from across the political spectrum are driving these new laws. These developments can shape an updated vision of constitutional sex equality for the United States. Taking inspiration from global constitutionalism, and recognizing the potential of state constitutionalism, this Article identifies the emerging new infrastructure of social reproduction — rather than antidiscrimination — as the normative core for the twenty-first-century ERA.
For the 100-year backstory of the ERA, see Tracy Thomas, The Long History of the ERA, discussing a forthcoming chapter in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism edited by Lee Ann Banaszak & Holly McCammon (Oxford University Press 2016).

February 7, 2017 in Constitutional, International | Permalink | Comments (0)

Thursday, February 2, 2017

Greenhouse & Siegel on Whole Woman's Health and the Future of Judicial Regulation of Abortion

Linda Greenhouse & Reva Siegel, The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman's Health, 126 Yale L. Forum (2016)

Abstract:      1

In this essay we consider the implications of Whole Woman’s Health v. Hellerstedt for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the Supreme Court’s decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.

In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health. The Court required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.

A crucial aspect of the Court’s decision in Whole Woman’s Health is the guidance it provides judges in determining the burdens and benefits to balance in the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s experience of exercising their constitutional rights. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health. In these and other ways, Whole Woman’s Health robustly reaffirms judicial protection for the abortion right.

 

February 2, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

The Gendered History of Citizenship by Marriage

Helen Irving, What is a Citizen?, the concluding chapter of the book, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016).

Explains the history of citizenship-stripping (“marital denaturalisation”) from women who married foreign men (and the parallel conferral, by many countries, of the husband’s citizenship: “marital naturalisation”), a legal practice that was followed in virtually every country in the world between the early-to-mid nineteenth and the mid-twentieth century (and ultimately repudiated in the 1957 UN Convention on the Nationality of Married Women). The book locates this practice in the formation of modern citizenship laws and explains it as an aspect of the emergence of modern international relations. Its concluding chapter is a reflection on what this history reveals about the nature of citizenship. It challenges theories of citizenship as rights and citizenship as participation, and offers an ‘existential’ defence of citizenship that prioritises protection of the citizen on the part of the state.

February 2, 2017 in Books, Constitutional, International, Legal History | Permalink | Comments (0)

Monday, January 23, 2017

Elizabeth Cady Stanton on Law, Constitutional Intent, and Human Rights

Elizabeth Cady Stanton testifying before the House Judiciary Committee in 1872 on women's right to vote:

Some object that it was not the "intention" of the framers of the original Constitution, nor of the amendments, to enfranchise woman. When ordinary men, in their ordinary condition, talk of the "intentions" of great men specially inspired to utter great political truths, they talk of what they can not know or understand. When by some moral revolution men are cut loose from all their old moorings, and get beyond the public sentiment that once bound them, with no immediate selfish interest to subserve as, for instance, our fathers in leaving England, or the French Communes in the late war in hardship and suffering they dig down to the hard-pan of universal principles, and in their highest inspirational moments proclaim justice, liberty, equality for all.

Visiting Chicago not long since, I saw great pieces of rock of the most wonderful mineral combination gold, silver, glass, iron, layer after layer, all welded beautifully together, and that done in the conflagration of a single night which would have taken ages of growth to accomplish in the ordinary rocky formations. Just so revolutions in the moral world suddenly mould ideas, clear, strong, grand, that centuries might have slumbered over in silence; ideas that strike minds ready for them with the quickness and vividness of the lightning's flash. It is in such ways and under such conditions that constitutions and great principles of jurisprudence are written; the letter and spirit are ever on the side of liberty; and highly organized minds, governed by principle, invariably give true interpretations; while others, whose law is expediency, coarse and material in all their conceptions, will interpret law, Bible, constitution, everything, in harmony with the public sentiment of their class and condition. And here is the reason why men differ in their interpretations of law. They differ in their organizations ; they see everything from a different standpoint. Could ideas of justice, and liberty, and equality be more grandly and beautifully expressed than in the preamble to our Federal Constitution?

It is an insult to those Revolutionary heroes to say that, after seven years' struggle with the despotic ideas of the old. world, in the first hour of victory, with their souls all on fire with new-found freedom, they sat down like so many pettifogging lawyers, and drew up a little instrument for the express purpose of robbing women and negroes of their inalienable rights. Does the preamble look like it? Women did vote in America at the time the Constitution was adopted. If the framers of the Constitution meant they should not, why did they not distinctly say so? The women of the country, having at last roused up to their rights and duties as citizens, have a word to say as to the "intentions" of the fathers. It is not safe to leave the "intentions" of the Pilgrim fathers, or the Heavenly Father, wholly to masculine interpretation, for by Bible, and Constitution alike, women have thus far been declared the subjects, the slaves of men.

But able jurists tell us that the "intention'' of the framers of a document must be judged by the letter of the law. Following this rule the Supreme Court of the District of Columbia has decided that the XIV. Amendment does affect the status of women; that it advances. Amendment does affect the status of women; that it advances them to full citizenship, and clothes them with the capacity to become voters. The exact language of Judge Cartter, who spoke for the court, is as follows:

All that has been accomplished by this amendment to the Constitution, or its previous provisions, is to distinguish them (women) from aliens, and make them capable of becoming voters. In giving expression to my judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters.

If so much has been done, we have already gone beyond the "intention" of the framers of the amendments, if, as some say, they did not intend to touch the status of woman at all. But with or without intent, a law stands as it is written "Lex ita scripta est." The true rule of interpretation, says Charles Sumner, under the National Constitution, especially since its additional amendments, is that anything for human rights is constitutional. "No learning in the books, no skill in the courts, no sharpness of forensic dialectics, no cunning in splitting hairs, can impair the vigor of the constitutional principle which I announce. Whatever you enact for human rights is constitutional, and this is the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding." 

History of Woman Suffrage, v.2:511-13; The Selected Papers of Elizabeth Cady Stanton & Susan B. Anthony, v.6:92-93 (Ann D. Gordon ed.)

 

 

January 23, 2017 in Constitutional, Legal History | Permalink | Comments (0)

Monday, January 9, 2017

Reconsidering the Remedy of Gender Quotas in the US

I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016).  It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.

Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.

 

“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.

 

A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).

 

This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.

 

Gender quotas have been highlighted in several places recently, including:

    United Nations "Planet 50-50 by 2030" Campaign for Women's Rights

    United Nations Council

    The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"

    The ABA Rule mandating diverse CLE panels

    A lawsuit challenging the gender and minority quotas for the Texas State Bar Board

    Federal contracts to small business owners

 

 

January 9, 2017 in Business, Constitutional, Courts, International, SCOTUS | Permalink | Comments (0)

Wednesday, December 14, 2016

Damages Caps on Noneconomic Harm for Sexual Assault of Minor Upheld as Constitutional

Damage Caps Constitutional When Applied to Sexual Assault of Minor

Capping damages awarded in a civil lawsuit to a teenage victim of a sexual assault did not violate the girl’s constitutional rights, the Ohio Supreme Court ruled today.

 

The Supreme Court affirmed the Fifth District Court of Appeals decision allowing a $3.6 million juryverdict in favor of Jessica Simpkins to be reduced to $500,000 when the trial court applied limits on “noneconomic damages,” which the Ohio General Assembly enacted as part of a 2005 “tort reform” law.

 

Simpkins and her father sued their church and former church leaders claiming that in March 2008 Brian Williams, the senior pastor of Sunbury Grace Brethren Church, forced oral and vaginal intercourse with Simpkins who was 15 years old at the time. Williams was convicted of two counts of sexual battery and sentenced to two four-year prison terms.

 

Simpkins argued the caps in R.C. 2315.18(B)(2) for noneconomic loss, which include “pain and suffering,” “loss of consortium,” “loss of companionship,” “disfigurement,” and ”mental anguish” are unconstitutional when it comes to minors because they suffer far more long-term consequences from the emotional damages of a sexual assault than they would from any “economic” damages. Writing the Court’s lead opinion, Justice Judith L. French wrote there may be a set of circumstances where the statutorydamages caps would prove unconstitutional, but the law “as applied to the facts before us” is constitutional.

 

In separate dissenting opinions, Justices Paul E. Pfeifer and William M. O’Neill argued that the General Assembly’s caps on jury awards are unconstitutional and can only be imposed by an amendment to the Ohio Constitution.

December 14, 2016 in Constitutional, Violence Against Women | Permalink | Comments (0)

Friday, December 2, 2016

"What Do You Women Want?": The 19 Century Women's Demand for Reform of Marital Property

This is part of a continuing series blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Today, is chapter 1.

ThomasStantonBookJacket

“What do you women want?” That was the question Elizabeth Cady Stanton was asked by the New York legislature in 1854. She responded with a long-list of demands for marital property, child custody, domestic violence protections, women on juries, tax exemptions for widows, and wholescale elimination of coverture.

These many goals were laid out by Stanton in her Declaration of Sentiments delivered at the Woman’s Rights Convention at Seneca Falls, New York in July 1848. (Now the site of the Women's Rights National Historical Park). The Declaration was Stanton’s road map for reform, in that she articulated 17 demands for reform of state, law, church, and the family in order to accomplish women’s full equality of opportunity.

Stanton began her fifty-years of legal and political advocacy for women’s rights on the issue of marital property. This was her starting point, and so it is the starting point for the book. In 1848, the NY legislature was considering reforms to the property laws that prevented married women from owning property, either separate, earned, inherited, or marital. It was supported by some expressed feminist concerns, but more by business concerns with recession, transferability of property, and family debt protection.  But the issue was at the front and center, with Married Women’s Property Acts beginning to be passed across the nation, and grassroots advocacy happening in Stanton’s close circle.

Stanton also started with the issue of marital property as it was the one that involved her personally. Her father, Daniel Cady, was a respected property and equity lawyer, legislator, and jurist. He was in the inner group of those considering legal reform, reformers who interacted with Stanton. Stanton also learned the law from her father, in what I call a “de facto apprenticeship,” observing his clients and trials, reading law with his apprentices, and serving one year as his clerk. This legal training and ability to “think like a lawyer” would serve her well. But her own attempts to own and earn separate property, to make up for her under-employed husband, ran smack into the limitations of coverture.

After introducing Stanton’s personal training and experience with the law of marital property, this chapter traces her philosophies, speeches, and proposals for legal reform. These included marital property laws that envisioned joint ownership of martial property – an idea that was not on the table in the Married Women’s Property Acts that merely allowed a woman to retain separate ownership of premarital or separately inherited (and later earned) property. She also advanced ideas of “taxation without representation,” challenging the taxation of widows’ property without the corresponding right of a property owner to vote.

The chapter also explores Stanton’s attempt to capitalize on the newly-enacted Privileges & Immunities Clause of the Fourteenth Amendment, which Stanton though was self-evidently empowering for sex equality. The Supreme Court, however, quickly squashed the expected interpretation of the clause to apply to voting or a generalized sex equality. Had Stanton’s view prevailed, much on women’s legal equality would have been different.

Here is an excerpt:  Download ExcerptStantonChap1

December 2, 2016 in Books, Constitutional, Legal History | Permalink | Comments (0)

Friday, November 11, 2016

Reading on Law, Gender & Veterans

 On Veterans' Day, exploring some of the gendered effects of veterans' obligations and benefits:

 Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change

Linda Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship, Chap. 5

Melissa Murray, Made With Men in Mind: The GI Bill and its Reinforcement of Gendered Work after World War II

Jody Prescott, NATO Gender Mainstreaming and the Feminist Critique of the Law of Armed Conflict.

 Personnel Administration v. Feeney, 442 U.S. 256 (1979) (veterans' preferences in employment)

US v. Virginia, 518 U.S. 515 (1996) (women's enrollment at military institute)

November 11, 2016 in Constitutional | Permalink | Comments (0)

Tuesday, November 8, 2016

Women's Legal History on Voting Day: United States v. Susan B. Anthony

Ann Gordon, The Trial of Susan B. Anthony, Federal Judicial Center (2005)

United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”

 

Primarily a case about woman suffrage and sexual discrimination, United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.

 

Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote.

 

Image result for susan b. anthony voting

(Cartoon mocking SBA for wanting to vote)

 

Remarks by Susan B. Anthony in the Circuit Court of the Northern District of New York,  June 19, 1873

As a matter of outward form the defendant was asked if she had anything to say why the sentence of the court should not be pronounced upon her.

 

"Yes, your honor," replied Miss Anthony, "I have many things to say. My every right, constitutional, civil, political and judicial has been tramped upon. I have not only had no jury of my peers, but I have had no jury at all."

 

Court—"Sit down Miss Anthony. I cannot allow you to argue the question."

 

Miss Anthony—"I shall not sit down. I will not lose my only chance to speak."

 

Court—"You have been tried, Miss Anthony, by the forms of law, and my decision has been rendered by law."

 

Miss Anthony—"Yes, but laws made by men, under a government of men, interpreted by men and for the benefit of men. The only chance women have for justice in this country is to violate the law, as I have done, and as I shall continue to do," and she struck her hand heavily on the table in emphasis of what she said. "Does your honor suppose that we obeyed the infamous fugitive slave law which forbade to give a cup of cold water to a slave fleeing from his master? I tell you we did not obey it; we fed him and clothed him, and sent him on his way to Canada. So shall we trample all unjust laws under foot. I do not ask the clemency of the court. I came into it to get justice, having failed in this, I demand the full rigors of the law."

 

See also Doug Linder, Famous American Trials: The Trial of Susan B. Anthony and Trial Record in the Case of Susan B. Anthony

 

 

November 8, 2016 in Constitutional, Courts, Legal History | Permalink | Comments (0)