Gender and the Law Prof Blog

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

Tuesday, December 6, 2016

Stanton, Feminism & the Family:  “The whole question of women’s rights turns on the pivot of the marriage relation.”

I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform.  

Today, is chapter 2.

ThomasStantonBookJacket

Chapter 2, “The Pivot of the Marriage Relation” addresses Stanton’s key philosophical premise that equality in marriage was as important as equality in public, church, and state.

I do not know that the world is quite willing or ready to discuss the question of marriage. . . . It is in vain to look for the elevation of woman, so long as she is degraded in marriage. . . . The right idea of marriage is at the foundation of all reforms. . . . I feel this whole question of woman’s rights turns on the pivot of the marriage relation, and sooner or later it will be the question for discussion.

—Elizabeth Cady Stanton to Susan B. Anthony, Mar. 1, [1852]

Marriage needed “pivot,” to do an about-face from the slave-like subordinated status of married women under coverture to an autonomous, individual partner of a marital partnership. For this first feminist, family was not opposed to women’s rights, but was a key site of needed change. The public and private spheres were not segregated as feminist theory first developed.

Stanton’s critiques and theories of marriage were colored by her own disappointing personal experience in marriage. She had dreamed, and often espoused, the idea of a close companion, a soulmate, with whom a woman shared family, work, and intimacy. Instead, she was married to abolitionist and some-time lawyer Henry Stanton who was fully absorbed in his own (unrealized) political ambition. Henry spent most of their married life living elsewhere, working on a political campaign or issue in another city or state, while Elizabeth raised their seven children. The two finally set up separately households in their fifties, visiting and remaining cordial for family events.

Philosophically, Stanton’s first objective was to establish that marriage was a problem. She made her point sometimes symbolically, using metaphors like slavery which her audience understood, and lamenting the wife’s duty to obey and take her husband’s name, “Mrs. Henry Stanton.”    

Stanton’s radical “Man Marriage” critique presented in speeches and newspaper editorials conveyed this idea of the oppressive nature of marriage on a more sophisticated level. Like modern feminist legal theorists, she deconstructed the seeming objectivity of the law to show how the laws of marriage were made “by and for the benefit of men.”  She applied this critique to the controversy over Mormon polygamy, subversively suggesting that polygamy was no worse than monogamy for women.

Stanton’s second objective was to offer a corrective solution to the problem of marriage. Her reconstructive ideal conceptualized marriage as a contract. Marriage as a contract, rather than a status, changed everything legally for Stanton. It supported the notion of a legal partnership of equals, free modification of termination of that contract by divorce, as well as state laws of higher age for marriage and abolition of common law marriage.

December 6, 2016 in Books, Family, Legal History | Permalink | Comments (0)

Tuesday, November 29, 2016

New in Books: Stanton and the Feminist Foundations of Family Law

I'm excited to report that my new book is out today, after 12 years (!) in the making.  I will be blogging and tweeting about it this week to provide a preview of the different chapters.

 

The book has several goals.  First, it reveals new information about the legal advocacy of Stanton, the leading feminist of the nineteenth-century women's rights movement,  for reform of the family and gender equality.  We generally think of advances in sex equality in marriage and the family coming in the 1970s.  This book shows that such reform was a major platform of Stanton's holistic feminist philosophy 120 years earlier, and that the private sphere was not divorced from the public sphere in her original feminist theorizing.  The second goal of the book is to integrate women's experience and public advocacy into the mainstream thought of family law.  Family law has been conceptualized as one type of narrative focused much on contract and property, oblivious to the very public advocacy of Stanton and others for rejecting the coverture laws subordinating women and demanding equality of law in marital property, marriage partnership, no-fault divorce, maternal custody, and domestic violence remedies.

The introduction is available here.  This first part introduces Stanton to unfamiliar audiences (though she needed no introduction in her day -- I call her the "Oprah of the 19c"), outlines the framework for the book and the history of family law, and discusses a bit of the theoretical approach and what it means to engage in applied legal history. 

 

Table of Contents

     Introduction: The “Radical Conscience” of Nineteenth-Century Feminism

    1.  “What Do You Women Want?” [on marital property and privileges & immunities]

    2. “The Pivot of the Marriage Relation” [on marital partnership]

    3.  “Divorce Is Not the Foe of Marriage” [on domestic violence and divorce]

    4.  The “Incidental Relation” of Mother [on reproductive rights]

    5.   Raising “Our Girls” [on maternal custody, parenting, and The Woman's Bible]

    Conclusion: “Still Many Obstacles” [on Stanton's legacy in 21st century family law]

 

The book is available from Amazon or the publisher, NYU Press

 

November 29, 2016 in Books, Family | Permalink | Comments (0)

Wednesday, November 9, 2016

SCOTUS Hears Equal Protection Challenge to Different Citizenship Requirements for Child Born to Unwed Fathers v. Unwed Mothers

 The case set for oral argument today is Lynch v. Morales-Santana

QUESTIONS PRESENTED

Whether sections 301 and 309 of the Immigration and Nationality Act of 1952 violate the Fifth Amendment’s guarantee of equal protection by requiring unwed citizen fathers to satisfy substantially more burdensome physical presence requirements than unwed citizen mothers in order to transmit derivative citizenship to their foreign-born children.

 Whether the court of appeals properly remedied the equal protection violation by extending to unwed citizen fathers of foreign-born children the same rights available to similarly situated unwed citizen mothers.

Here is the Second Circuit's opinion below, finding an Equal Protection violation.

November 9, 2016 in Family, International, SCOTUS | Permalink | Comments (0)

Friday, November 4, 2016

Politicizing Motherhood: A Closer Look at the Maternalism of Phyllis Schlafly's Anti-ERA Activism

Natalia Mehlman Petrzela, Politicizing and Practicing Motherhood

“I’d like to burn you at the stake,” pioneering feminist Betty Friedan famously spat at conservative activist Phyllis Schlafly during a 1973 debate about the Equal Rights Amendment. Her loathing reflected the recognition of a formidable opponent. Though our largely liberal profession took several decades to recognize Schlafly’s power in shaping political culture, the flurry of insightful reflections from historians in the wake of her recent death affirms Schlafly’s rightful place in the historical record even as her anti-feminist and anti-gay politics position her on what many agree is the wrong side of history.

 

A hallmark of Schlafly’s public persona was portraying the world as a series of stark opposites. Her feminist straw woman was joyless man-hater; in 1977, she contrasted a conservative, “positive woman” with the “miserable” who embraced the new feminist honorific “Ms.”[1] But if we treat Schlafly exclusively as the conservative complement to this caricature, we miss important dimensions of her function in the history of feminism as more than a reactionary foil. An illuminating way to read Schlafly as a more complex figure is to look beyond her rich public life to explore how she perceived motherhood not just as a political symbol but also as a personal practice.

 

I’m not the first historian to suggest that Schlafly demands a nuanced approach.[2] For one, the feminism Schlafly railed against ironically enabled her political career. Moreover, that illustrious career was constrained by the same misogyny that thwarted women of all political affiliations, as her unsuccessful attempts in the 1950s to break into the old-boys’ foreign policy network proved. For Schlafly’s homages to homemaking (and her frequent infuriating introductory anecdote that she had asked permission of her husband to speak publicly), she rivaled Friedan in her efforts to mobilize a generation of female political neophytes. She sent detailed handwritten notes to housewives, precisely instructing how to organize around “women’s issues” such as education, abortion, and “the homosexual agenda,” which made “family values” a central plank of contemporary conservatism and launched her into public life. Like her early-twentieth-century progressive foremothers, Schlafly used a form of “maternalism” to access the political arena, though in order to promote rather than challenge traditional gender roles even as her very participation embodied such a challenge.

November 4, 2016 in Abortion, Family, Legal History | Permalink | Comments (0)

Friday, October 28, 2016

A Woman's Constitutional Right to Her Surname in Japan

NYT, In Japan, More Women Fight to Use Their Own Surnames

This was the topic of a paper recently published in Akron Law's open-access constitutional law journal, ConLawNOWby our visiting scholar from Japan.  

Koji Higashikawa, Tying the Knot with a Surname? The Constitutionality of Japan's Law Requiring a Same Marital Name

October 28, 2016 in Constitutional, Family, International | Permalink | Comments (0)

Wednesday, October 12, 2016

Law Now Requires Baby Changing Tables in Men's Restrooms in Federal Buildings

President Obama Signs Changing Table Law for all Federal Restrooms

Kudos then, to Congress and President Obama for passing a law that will make changing tables mandatory in women’s and men’s restrooms in all federal buildings. Introduced in the House of Representatives last spring by Rep. David Cicilline, the bill was passed by a large margin in the house (389-34) and signed into law by the President on October 7. Named the Bathrooms Accessible in Every Situation (BABIES) Act, the bill “requires male and female restrooms in a public buildings to be equipped with baby changing facilities that the General Services Administration determines are physically safe, sanitary, and appropriate.” The legislation mandates that any necessary changes be made in the next two years and allows for some exceptions such as in cases where the cost of construction is unfeasible.

 

“Federal buildings are paid for by taxpayers and it's important to ensure that they are as open, as accessible, and as family-friendly as possible,” Rep. Cicilline wrote on Facebook. “This is how government should work to make commonsense reforms that make life easier for the people we serve.”

 

In recent years, there’s been a growing movement among dads fighting for changing tables in men’s rooms. Last year, Ashton Kutcher created a petition on Change.org asking for Target and Costco to put changing tables in all their stores and received 104,384 signatures. In 2014, the California State Assembly passed the “Potty Parity for Parents Act,” which would have required businesses installing changing tables in the future to make them available to both sexes. Unfortunately, Governor Jerry Brown vetoed this bill, as well as another one which would have required government buildings and other public places to make changing tables available to men, explaining that he thought implementing these changes would best be left to the private sector. Also, last year New York state Sen. Brad Hoylman introduced legislation, currently in committee, which would require new or recently renovated public buildings in New York to provide equal access to changing tables.

October 12, 2016 in Family | Permalink | Comments (0)

Thursday, September 29, 2016

Domestic Violence in the Divorce Cases of Marital Cruelty, 1840-1860

Book Review: Harris on Sager, Marital Cruelty in Antebellum America, reviewing the book Robin C. Sager, Marital Cruelty in Antebellum America (Lousiana State University Press 2016)

In literature and the popular press, antebellum women were lauded for their virtue and piety; they maintained the sanctity of the home and were responsible for the moral training of the next generation. Yet, many homes were not idyllic sites of domestic tranquility. In Marital Cruelty in Antebellum America, Robin C. Sager uncovers the fascinating and disturbing account of “those spouses who were simply trying not to kill one another” (p. 12). Through an analysis of 1,500 divorce cases in Virginia, Texas, and Wisconsin, Sager chronicles the meanings and cultural significance of marital cruelty in the years 1840-60. Sager contends that regional scholarship has tended to label the South as particularly violent, connecting that violence to norms of Southern honor. To interrogate these assumptions, the author analyzes Virginia (often considered the archetypal Southern state), Texas (a frontier Southern state), and Wisconsin (a frontier state in the process of settlement). Sager finds that the cultural uncertainty of frontier Wisconsin perpetuated violent domestic cruelty, while greater stability of gender norms in Virginia and Texas mitigated violence in marriage.

 

Marital Cruelty is organized around types of cruelty: verbal, physical, sexual, and negligence. Within each chapter Sager compares divorce cases from Virginia, Texas, and Wisconsin. In the chapter on physical cruelty, for example, Sager identifies a fixation on the exact nature of the violence in each state’s attempt to determine the line between permissible violence and marital cruelty. Courts would attempt to determine the exact number of blows, the type of violence, and the emotional valences behind the violence. While there was no universal standard for what constituted cruelty, violence that reinforced gendered familial duty was more likely to be considered legitimate. As such, whipping tended to be more acceptable than punching, and the seemingly rational administration of violence was more acceptable than emotional or animalistic violence. Sager also identifies significant regional differences in physical violence, explaining that the unsettled frontier of Wisconsin led to “more permanent injuries and generalized brutality within marriages than can be seen in either Virginia or Texas for the period” (p. 39). This chapter is also notable because it includes instances of wives' cruelty toward their husbands, a particularly egregious violation of gender expectations. * * * 

 

The unrelenting litany of domestic violence can be challenging to read, but the attention to regional difference and lower court marriage law makes the study valuable to researchers. While state and federal appeals and Supreme Court decisions from the antebellum era are more likely to be accessible, documents from lower-level divorce cases can be difficult to find. The vast majority of citizens seeking a divorce would have had their case only heard before a lower-level court, such as a circuit, district, or chancery court, and Sager’s meticulous research provides unique insight into the ways in which Americans used the state to negotiate marital conflict. However, as the author notes, not all Americans had equal access to the law, and Sager acknowledges that the choice to study divorce cases may obfuscate questions of race and class.

September 29, 2016 in Books, Family, Violence Against Women | Permalink | Comments (0)

Tuesday, September 20, 2016

Sister Wives Stars File Cert to Supreme Court

Celebrity Plural Family Case Appeal Filed With the Supreme Court

“Sister Wives” TV star Kody Brown is taking his case to Washington, as his attorneys have filed a last-ditch Supreme Court appeal in Brown’s “plural family” case.

 

George Washington University law professor Jonathan Turley filed a request for the high court to take Brown’s appeal. Since 2010, Brown and his four “Sister Wives” have starred in a reality show on the TLC network that documents their lifestyle in Utah and Nevada.

 

Brown has been in court trying to determine if there is a constitutional right to his plural family lifestyle. Brown is legally married to one woman and also “spiritually married” to three other women at the same time. Two years ago, Brown and his attorneys won a significant victory in a federal court in Utah.

 

Before that in 2011, Brown sued the state of Utah after episodes of “Sister Wives” were shown on TLC, and Utah County Attorney Jeff Buhman threatened to prosecute Brown under the state’s anti-polygamy laws. Brown and his family moved to Nevada in reaction to the threat from Buhman. Then, Buhman adopted policies that would exempt the Brown family from the Utah law.

 

A federal judge, Clark Waddoups, handed Brown’s cause a big victory when he struck down part of a Utah state law making it a crime to “cohabit with another person” if the partners weren’t legally married to each other. The state of Utah then appealed the decision to the U.S. Court of Appeals for the Tenth Circuit, which overturned the decision made by Waddoups. A three-judge federal appeals court panel ruled the case as “moot,” since Brown didn’t face prosecution from Utah County.

 

After failing to get the full Tenth Circuit bench to hear Brown’s appeal, Turley filed paperwork with the U.S. Supreme Court on Monday, arguing that the case was about Brown’s constitutional rights.

September 20, 2016 in Constitutional, Family, SCOTUS | Permalink | Comments (0)

Wednesday, August 31, 2016

Gender By Far is the Biggest Determinant of Who Should do Housework

Huff Post, Most Americans Still Think Women Should Do the Bulk of the Housework

If bitter fights over dirty dishes feel like the gender wars, or you’ve found yourself ranting about The Second Shift, a new study from Indiana University suggests you’re onto something. For most Americans, the survey study found, chore roles align with traditional thinking on masculinity and femininity ― even among couples where a woman is the primary or sole breadwinner and even in same-sex couples. 

 

The researchers were surprised by how much gender mattered ― and how little income did.

 

“Most research on housework suggests that couples divide housework along different axes; for example, lower-earning partners do more housework than higher-earning partners,” said lead author Natasha Quadlin, a doctoral student at Indiana University. “Instead, our findings suggest that [gender] is by far the biggest determinant of Americans’ attitudes toward housework.”

 

Gender matters more than income

 

Participants assigned straight women more female-typed chores, more gender-neutral chores and more physical and emotional caregiving than their partners. This held true even if the woman earned more money than the man.

 

While relative income determined whether or not the husband or the wife would become the stay-at-home caregiver, Quadlin pointed out that low-earning men in straight relationships were still expected to do fewer chores and fewer childcare tasks than their wives.

 

But even though gender mattered most, Quadlin found that participants gave primary responsibility for cooking, cleaning, laundry and dishes, as well as being a primary caregiver for a child, to lower-earning partners, while expecting the higher- wage earners to manage the household finances. Income didn’t have any bearing on groceries, car maintenance or outdoor chores. However, the effects of relative income were minor — for instance, low-wage earners were given responsibility for cooking 55 percent of the time, versus 45 percent for higher earners.

 

August 31, 2016 in Family, Gender, Pop Culture | Permalink | Comments (0)

Friday, August 5, 2016

New in Books: A Feminist Proposal for Using ADR to Address Marital Problems and Violence in India

Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India (U. Cal. Press 2015) (with podcast):

Are solutions to marital problems always best solved through legal means? Should alternative dispute resolutions be celebrated? In her latest book The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015) Srimati Basu answers such questions and many more through explorations of "lawyer free" courts and questions surrounding understandings of domestic violence, analyses of the way rape intersects with marriage and how kinship systems change with legal disputes and by delineating the most important acts that frame marriage law in India. Theoretically and politically astute the book offers an ethnographic insight into legal sites of marriage trouble in India.

August 5, 2016 in Books, Family, International | Permalink | Comments (0)

Friday, July 29, 2016

Colorado Adds Pregnancy and Post-Partum to Anti-Discrimination Laws

Colorado Amends Discrimination Law to Accommodate Pregnant and Post-Partum Employees

On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .

 

[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:

  •  provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
  • not take adverse actions against employees who request or use a reasonable accommodation;
  • hire applicants despite the need to make a reasonable accommodation;
  • not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
  • not require leave if the employer can provide another reasonable accommodation.

July 29, 2016 in Equal Employment, Family, Reproductive Rights | Permalink | Comments (0)

Thursday, July 14, 2016

Gender and the Marital Presumption of Parentage

 Photo

Jamie R. Abrams joins us as a guest blogger for July.  She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.  

Despite rapid and enduring transformations in family structures, it has been decades since many states significantly amended their parentage laws.  A Uniform Parentage Act (UPA) Drafting Committee is hard at work preparing a 2017 revision to the uniform act last updated in 2002.  These revisions do important work to fix problematic gendered framings of the marital presumption in a post-Obergefell world. 

Most states continue to follow a marital presumption that presumes that when a wife gives birth to a child her husband is the legal parent of the resulting child.  One high profile example of this presumption was when Kim Kardashian became pregnant with Kanye West’s child, the marital presumption would have presumed that Kris Humphries was the legal father because he was still married to Kim at the time.  This gendered language, however, problematically presumes that a married couple is one man and one woman.  This, of course, is no longer the case.  Many state laws need to be updated to reflect this modern reality.  In fact, only seven states have so far amended their marital presumption laws after Obergefell.  Other states may, however, be interpreting the gender specific language of their parentage laws in a way that is inclusive of same-sex couples at the judicial level or on a case-by-case level. 

The 2017 UPA would extend that marital presumption to either a male or female spouse of the woman who gave birth.  Notably, the 2017 UPA does not propose a completely gender-neutral standard.  The drafting committee acknowledged that the State of Washington, for example, had adopted a completely gender-neutral approach.  It noted, however, that this could produce unusual results.  For example, it might mean that a wife would be presumed to be the legal parent of a child birthed by another woman if a husband impregnated a woman that was not his wife during an affair.  The gender-neutral marital presumption, in that instance, might then override the birthing woman’s parentage.  Washington was the only state to adopt an entirely gender-neutral presumption.  The UPA Drafting Committee explained that the other six states that had amended their parentage laws had done so in a manner similar to the 2017 UPA’s proposed approach, which expands the marital presumption to the female spouse of a birthing wife. 

This blog post only summaries changes to the marital presumption’s gendered framing.  The 2017 UPA would also modify surrogacy provisions, provide certain rights to access information about gamete donors, and modify the handling of competing presumptions.   To learn more about the drafting process visit the Drafting Committee’s site of the Uniform Law Commissioners or to view a comparison between the 2002 and 2017 UPA see the Committee’s chart.

July 14, 2016 in Constitutional, Family | Permalink | Comments (0)

Monday, July 11, 2016

Books: Women as Aggressors of Marital Violence in Antebellum American

Robin Sager, Marital Cruelty in Antebellum America (LSU Press 2016)

In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles of aggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty. * * *

 

Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.

h/t Legal History Blog

 

July 11, 2016 in Family, Legal History, Violence Against Women | Permalink | Comments (0)

Wednesday, June 22, 2016

The Thirteenth Amendment as Protection Against Domestic Violence

James Gray Pope, The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women and Seamen, 39 Seattle L. Rev. (2016) 

 

In Robertson v. Baldwin [1897], the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude.  According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. From a present-day perspective, the Court’s casual deprecation of seamen’s intelligence and character might seem anachronistic, even shocking. ***

 

Robertson’s domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as “power relationships among groups involved in systems of production.” Regardless of contractual consent, workers may not be legally or physically compelled to work. The Supreme Court has explained this principle in terms of class power, as necessary to prevent the “master” from dominating the “laborer”: “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as “the private sphere of natural subjection and womanly capacities.”

 

By contrast, it is an open question whether the Amendment reaches gender relations. On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson’s domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners. When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings.

 

June 22, 2016 in Constitutional, Family, Violence Against Women | Permalink | Comments (0)

Tuesday, June 21, 2016

The Daughter Track of Elder Care

M. Christian Green, "Graceful Pillars": Law, Religion, and the Ethics of the "Daughter Track", Journal Law & Religion (forthcoming July 2016)

What is striking in these responses is the interplay and ethical tension between concepts of virtue and necessity, in a way that construes and constructs the “daughter track” as emblematic of a particular kind of filial virtue that manifests itself in what is often a situation of necessity, in which someone must step up to provide care in the face of scant resources afforded by the surrounding society. In other words, these daughters step up to bear the burden of eldercare because no one else will.


The plight of women on the “daughter track” raises crucial ethical questions about justice, care, and gender connection with eldercare. It does so in a moral and ethical context often shaped not only by the choice to care, but also by virtues forged in contexts of necessity. There are a number of conceptual frameworks in feminist philosophy and feminist legal theory that might be used to analyze the “daughter track” problem. One of the newest and most promising frameworks is the “vulnerability” framework that has been argued powerfully and eloquently about Martha Albertson Fineman. Another longstanding and influential framework is that of the “ethics of care.” With origins in the developmental psychological work of Carol Gilligan, who famously identified and juxtaposed a masculine “ethic of justice” with a feminine “ethic of care,” the ethics of care framework, originally.  

 

While the ethic of care framework might seem to be the most obvious framework for analyzing the “daughter track,” since it involves daughters providing care to elderly parents, it is not the framework that I have chosen to apply here. The origins of the ethics of care in maternal experience do not fully track the daughter care experience, as suggested by contrasts between the “Mommy Track” and the “Daughter Track” in the popular media. Motherhood is most often chosen and eagerly awaited with positive expectations of giving birth and raising to maturity a child who may end up taking care of the parents someday. Eldercare needs, while in a certain sense universal and inevitable, since we all age and most of us have parents who live into old age, often strike out of the blue or build gradually and then hit like a tsunami when a parent’s need for care becomes acute, and the process is one of decline and ultimately death, leaving the caregiver with significantly depleted energy and funds to provide for their own care.

June 21, 2016 in Family, Gender | Permalink | Comments (0)

Monday, June 13, 2016

Study Concludes Women Experience the Institution of Marriage as Oppressive

Is Marriage Worth the Trouble for Women?  The short answers is "No."

First, confounding the view of marriage as the female heaven and haven is the fact that marriage actually appears to benefit men more than it does women. Research has shown that the "marriage benefits"—the increases in health, wealth, and happiness that are often associated with the status—go disproportionately to men. Married men are better off than single men. Married women, on the other hand, are not better off than unmarried women.

 

Second, in contrast to the myth that marriage is a woman’s ultimate and sacred fulfillment is the reality that roughly two-thirds of divorces are initiated by women.***

 

A recent paper by Stanford sociologist Michael J. Rosenfeld analyzed longitudinal data from the How Couples Meet and Stay Together survey—a survey of a nationally representative sample of 2,262 adults in heterosexual relations followed from 2009 to early 2015.

 

The results revealed an intriguing pattern: As expected, women initiated roughly two thirds (69%) of the breakups in heterosexual marriages. However, the gendered trend in relationship breakups held only for marriages and not for other non-marital unions. Moreover, women in marriages, but not in other relationships, reported lower levels of satisfaction.*

 

This finding appears to provide support for the notion that women experience the institution of marriage as oppressive, in large part because it emerged from and still carries the imprint of a system of female subjugation.

 

H/t Marcia Zug

 

June 13, 2016 in Family | Permalink | Comments (0)

Friday, May 6, 2016

The Truth About Mother's Day

Tuesday, April 19, 2016

Postpartum Taxation and the Opt Out Mom

Shannon Weeks McCormack (Washington), Postpartum Taxation: The Internal Revenue Code and the Opt Out, Georgetown L.J. (forthcoming.

Abstract:     

Legislation seeking to ensure that women receive equal pay for equal work has been on the books for decades. Nevertheless, the average American woman still receives less than eighty cents for every dollar earned by the average American man. Happily, the gender pay gap between men and childless women is narrowing over time. Meanwhile, the gap between mothers and others continues to widen. Career interruptions contribute significantly to this disturbing trend — nearly half of mothers opt out of the workforce at some point in their lives, most often to care for young children. Faced with too-short (or non-existent) maternity leaves, inflexible work schedules and the soaring costs of childcare in the United States, this opt out phenomenon is hardly surprising. But with the decision to opt out comes grave cost. Over 90% of opt out moms want to return to the workforce several years after off ramping. Unfortunately, many discover that they are unable to do so. A mother that does manage to reenter the workforce will find that even a short off ramp results in a sizeable and disproportionate reduction in her annual earnings that will persist for every year of her remaining life.

Given this dismal reality, experts that study the biases faced by women in the workplace encourage mothers who want to maintain careers to resist opting out during their children’s preschool years (and to incur the many high costs of doing so) in order to protect their most valuable economic asset — their lifelong earning capacity. Surprisingly, these insights are under- (if not completely un-) utilized in tax scholarship considering the taxation of women and the family. Incorporating these critical insights, this Article shows that the tax laws are already well suited to provide new mothers the encouragement urged by so many non-tax scholars. This Article first proposes several reforms to ensure the postpartum earnings of new mothers are not over-taxed. It then discusses existing mechanisms used by the tax laws to encourage long-term investment and identifies two mechanisms that could be easily fashioned to help new mothers remain in the very imperfect workforce that exists today.

 

April 19, 2016 in Family, Work/life | Permalink | Comments (0)

Monday, April 4, 2016

NY Adopts Paid Family Law as of 2018

Slate, New York Just Established the Best Paid Family Leave Policy in the Country

All workers in New York state will soon be eligible for a guaranteed 12 weeks of paid family leave, one of Gov. Andrew Cuomo’s legislative priorities, which passed Thursday in a long-debated budget agreement.

 

Beginning in 2018, all full- and part-time employees who’ve been working at their jobs for at least six months will have access to up to eight weeks of leave at half their salaries. The policy, which will be funded by employees through payroll deductions, will gradually phase up over four years to 12 weeks and a maximum of two-thirds of the state’s average wage. It also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act.

 

With this new policy, New York joins California, New Jersey, and Rhode Island on the elite list of U.S. states that offer guaranteed paid leave to hang out with a new baby, bond with an adopted or foster child, or care for a sick family member. Rhode Island offers four weeks of partial pay and New Jersey and California offer six, placing New York far ahead of the pack, though it still trails most other countries in the world when it comes to maternity leave.

April 4, 2016 in Family, Pregnancy, Work/life | Permalink | Comments (0)

Friday, March 18, 2016

Books (Coming Soon): The Feminist Foundations of Family Law

The book jacket!  Publication is one step closer!  

For a preview of the first chapter, see Tracy A. Thomas, The "Radical Conscience" of Nineteenth-Century Feminism

See also Tracy A. Thomas, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW (2016)

ECSBookJacket

 

March 18, 2016 in Abortion, Books, Family, Legal History | Permalink | Comments (0)