Monday, July 31, 2017
Janet Halley, Book Review: Richard Chused & Wendy Williams, Gendered Law in American History (2016), JOTWELL
Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what didhappen with this issue or that in the transformative-yet-reactionary 19th Century?
But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours. But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!
The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths.
One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.
Thursday, July 6, 2017
We welcome Professor Jamie Abrams to the Gender & Law Prof Blog for the month of July. She is Associate Professor of Law at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Legislation, and Women and the Law. Her research focuses on reproductive and birthing decision-making, gendered citizenship, legal protections for immigrant victims of domestic violence, and legal education pedagogy. Professor Abrams' most recent work includes Debunking the Myth of Universal Male Privilege, in the University of Michigan Journal of Law Reform, and The Feminist Case for Acknowledging Women’s Acts of Violence in the Yale Journal of Law & Feminism
MothersEsquire: An Introduction to a Supportive Community
As a member of the academic community, I often find myself stuck in something of an outsider status with the practicing legal profession. I am not a practicing lawyer, so my role in the local bar associations, CLEs, and practitioner-related groups often is a bit awkward and strained. I attend as many events as I can, but they are downtown and my campus communities have historically not been conveniently located to these groups. The kinds of conversations – particularly those related to gender dimensions of the profession – are often a powerful and painful reminder of the obstacles faced during my six years of private practice, but they do not quite reflect the day-to-day obstacles that I face in academic life. The same outsider phenomenon can also describe the role of students attending these events. I often recommend that students attend bar events and CLE programs, but likewise the relevance and applicability for them might not always translate smoothly to students to justify the commute downtown in the middle of their academic day.
This blog entry is an opportunity to highlight a new organization that I think has ably bridged communities for moms in the legal profession: MothersEsquire. This year has been an important one for the organization of women’s groups. From the D.C. Women’s March to Pant Suit Nation to Law Mamas, there is no shortage of outlets for women and women lawyers to come together this year. The MothersEsquire organization stands out in a couple of key ways.
First, it is not limited to geographical boundaries or bar licensure borders. For example, I am a member of the Maryland Bar, but not a member of the Kentucky Bar where I currently reside. This is an obstacle, or at least a deterrent, to my participation in local bar events. The same is true for many law students who might be studying in Kentucky or Virginia or California, but may not necessary call that community their home later as a practitioner.
Second, MothersEsquire has followed a “participatory action model” of modern governance. Many long-established bar organizations and affinity groups have signature events that fill the calendar like annual dinners, annual fundraisers, annual awards, golf tournaments, etc. As a new group, MothersEsquire has organically responded and adapted to changing conditions faced in communities. For example, when student members last Fall were attending a state bar ethics program and some questionable and inappropriate comments regarding women in the profession were made by a prominent speaker, the group quickly mobilized via social media and local organizers at the event who were also present on social media responded and addressed the concerns effectively and promptly in real time. The organization is also working on breastfeeding accommodations. It was able to effectively advocate for a law student denied bar exam nursing accommodations and it established an advocacy group to work on courtroom accommodations.
Third, the group has played a role and provided a focus that fills a gap in traditional women’s bar associations. Certainly, not all women lawyers are mothers or identify as mothers. Further, not all women lawyers are interested in or need to have an outlet to think about unique issues of parenting and the profession. For those that do, however, this group provides an outlet, an information source, a networking portal, and more. Its website explains:
“We are Moms. We are Lawyers. We are Master-Negotiators and Multi-Taskers -- at work and at home. We are the Equity Partners at the office and the Team Coach at school. We drive mini-vans to depositions and to carpool line. We read briefs by day and Goodnight Moon by night. And we are bringing women together to Disrupt the "Motherhood Penalty" in our profession.”
Finally, this group is unique for its founding in my hometown of Louisville, Kentucky by practicing attorney Michelle Coughlin. Historically, countless influential women’s groups and professional change-agents have originated in large coastal cities, or at least perceptively so. This group is distinctively inclusive. It originated in a so-called “red state” or a so-called “flyover state,” but includes members from far beyond that. Its members include SAH mother attorneys, practicing mother attorneys, prospective mother attorneys, and attorney prospective mothers.
For more information about MothersEsquire join the Facebook group or check out its website: I highlight it here on the Gender & Law Blog as a great example of leadership in the profession that bridges academia and practice, crosses geographical boundaries, and fosters organic professional connections.
Thursday, June 29, 2017
Call for Authors – Feminist Judgments: Rewritten Family Law Opinions
DEADLINE: FRIDAY, JULY 21, 2017
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.
Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics. With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes. Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same. A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).
Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit). Rewritten decisions may be majority opinions, dissents, or concurrences. Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.
Those who are interested in rewriting an opinion or providing commentary should complete the form found here:
Applications are due no later than Friday, July 21, 2017. The editor will notify accepted authors and commentators by Monday, July 31, 2017.
First drafts of rewritten opinions will be due on Friday, February 2, 2018. First drafts of commentaries will be due on Friday, March 9, 2018.
If you have any questions, please contact Rachel Rebouché at firstname.lastname@example.org
Wednesday, June 28, 2017
Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)
In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***
To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
Thursday, June 22, 2017
Jon Hecht, The Surprising Sexism of Maternity Leave
Many Americans still think of parental leave as a "woman's issue," but Derek Rotondo, a employee at JPMorgan Chase, is determined to change that. On Thursday, the American Civil Liberties Union filed a complaint with the Equal Employment Opportunity Commission on behalf of Rotondo, alleging that JPMorgan Chase is engaging in gender discrimination by providing 16 weeks of maternity leave but only two weeks of comparable paternity leave.
“JPMorgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” Galen Sherwin, the ACLU’s Women’s Rights Project's senior staff attorney, said in a statement.
"I'm frankly surprised that a company as large as JPMorgan would have a policy like this in this day and age," Vicki Schultz, Ford Foundation Professor of Law and Social Science at Yale Law School, tells Bustle.
"Providing equal parental leave to men and women is an important step in trying to get at a lot of cultural stereotypes and starting to chip away at the assumption that women do and should bear the primary responsibility for caregiving," Maya Raghu, Director of Workplace Equality and Senior Counsel at the National Women’s Law Center, tells Bustle
The paternity fight may even be a sign of larger societal change. "Legal and cultural change often go hand in hand. One pushes the other," Raghu says.
The effect of more men involved as primary caregivers for raising children could have powerful effects not just for those men, but for the women who would no longer be expected to put their careers on hold to take care of children. Research has suggested time and again that the breaks in work from caregiving — usually experienced more by women than men — contribute to the gender wage gap. Some experts hope that equalizing how workplaces and culture treat men as caregivers could have impact on minimizing that gap.
"Feminist theorists believe that this is really kind of the crux," says Tracy Thomas, John F. Seiberling Chair of Constitutional Law at the University of Akron School of Law and Editor of the Gender and Law Professors Blog. "Right now, a lot of the formal inequalities between men and women since the 1970s have sort of been eliminated in the workplace — as far as different rules, different hours, different wages."
However, the reality is often more complicated than the workplace laws on the book. "A lot of the cases really pushing the theory of gender discrimination right now are at this question of family and parenting and maternity leave," says Thomas. "So if we were to extend it across the board, I think that could be potentially very big in changing [the situation]. Because that's where we've identified we're culturally stuck. We're still stuck on women taking care of kids."
However, as I blogged about last week in Are Men Entitled to Equal Paid Paternity Leave?, the current EEOC guidelines on pregnancy discrimination allow a different leave period for men and women by giving additional time for women based on physical recovery time. It is only the time for caregiving and bonding that must be the same. Thus, it is permissible as the law is currently interpreted to give 16 weeks of paid leave to women, and 6 weeks of paid leave to men.
Friday, June 16, 2017
The American Civil Liberties Union, the ACLU of Ohio and the employment law firm Outten & Golden LLP today filed a discrimination charge with the Equal Employment Opportunity Commission on behalf of a J.P. Morgan Chase employee who claims the company discriminated against him and other fathers by denying fathers paid parental leave on the same terms as mothers.
Derek Rotondo, who filed the class action charge, is a fraud investigator who has worked at J.P. Morgan since 2010. He asserts that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave. Rotondo is the father of two young children, including a two-year old and a newborn just nine days old.
“When I found out how J.P. Morgan’s parental leave policy was actually implemented, I was shocked,” said Rotondo. “It was like something out of the 1950s. Just because I’m a father, not a mother, it shouldn’t prevent me from being the primary caregiver for my baby. I hope that J.P. Morgan will change this policy and show its support for all parents who work for the company.”
Rotondo’s charge — which he filed on behalf of all fathers who were or will be subjected to the same discriminatory policy — alleges that J.P. Morgan’s parental leave policy violates Title VII of the Civil Rights Act of 1964, the Ohio Fair Employment Practices Act, and other state and local laws that prohibit employers from discriminating against employees based on sex or sex-based stereotypes.
“J.P. Morgan’s parental leave policy is outdated and discriminates against both moms and dads by reinforcing the stereotype that raising children is women’s work, and that men’s work is to be the breadwinner,” said Galen Sherwin, senior staff attorney with the ACLU’s Women’s Rights Project. “J.P. Morgan needs to make its family leave policy reflect the realities of modern families working in America today.”
Before the birth of his second child, Rotondo sought approval to take parental leave as the primary caregiver. But J.P. Morgan’s human resources told Rotondo that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child. Rotondo does not qualify under either of these exceptions, as his wife is a special education teacher on summer break and unable to return to work, and she is in good health.
Here are the EEOC Guidelines on Parental Leave:
For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
EXAMPLE 14: Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment
An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
EXAMPLE 15: Discriminatory Parental Leave Policy
In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.
JP Morgan has explained its policy as applying to primary caregivers, who are presumably women. And it has precluded consideration of equal caregiving between parents. That is expressly discriminatory under the guidelines. See Jessica Lee, Congratulations on the Birth of Your Baby! Now Get Back to Work
Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”
The Supreme Court's recent decision in Sessions v. Morales-Santana lends additional strong support for a finding of discrimination.
Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, [the citizenship laws for children born abroad differentiating] for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.
However, the plaintiff is unlikely to get the exact remedy he seeks of 16 paid weeks.
1. JP Morgan could revise its policy in accordance with the EEOC guidelines and distinguish that the longer time for women is based on physical medical recovery for women, or make slight adjustments as in the example to provide women 16 paid weeks and men 6 paid weeks.
2. The company could level down and provide no paid leave to anyone. That was also the result of the Supreme Court's Morales-Santana decision. See discussion here. The question will go to whether the company wants to continue to provide paid leave to recruit and retain valued women employees in competition with other firms, or whether it believes that the economics of extending paid leave to more men will be too costly.
The federal Family Medical Leave Act requires only that certain employers provide both women and men 12 weeks of unpaid leave for caring for a new child.
Monday, June 12, 2017
SCOTUS Holds Citizenship Law for Unwed Fathers Violates Equal Protection But Denies Remedy Extending Equal Treatment
Justice Ginsburg (6-2) writing for the Court in Sessions v. Morales-Santana holds unconstitutional a federal citizenship law requiring unwed fathers of children born abroad to have previously lived in the US for 10 years, while an exception for unwed mothers required only 1 year of physical presence. In classic Ginsburg voice, the Justice attacks facial classifications based on gender as based on outdated, and illegal, stereotypes. Her opinion provides a good treatise summary of the law of equal protection, citing her opinion in US v. Virginia, Reed, Frontiero, Hibbs, and newly-integrating Obergefell.
However, the Court, refused to extend the one-year exception to unwed fathers, instead, requiring that both men and women be held to the 10-year standard. Which is the danger of an equal protection analysis -- that the treatment sought will be denied or retracted rather than extended equality.
Here are the highlights of the equal protection analysis:
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women are the“center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama (1994); see, e.g. United States v. Virginia (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, (1979) (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).
Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia; Kirchberg v. Feenstra (1981).
The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia, 518 U. S., at 533 (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982); alteration in original); see Tuan Anh Nguyen v. INS, 533 U. S. 53, 60, 70 (2001). Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20). Here, the Government has supplied no “exceedingly persuasive justification,” Virginia, 518 U. S., at 531 (internal quotation marks omitted), for §1409(a) and (c)’s “gender-based” and “gender biased” disparity, Westcott.
History reveals what lurks behind §1409 [enacted in 1940] . . . During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child. Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. “[D]ominance [of] the husband,” this Court observed in 1915, “is an ancient principle of our jurisprudence.” Mackenzie v. Hare, 239 U. S. 299, 311 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4–15. Through the early 20th century, a male citizen automatically conferred U. S. citizenship on his alien wife. C. Bredbenner, A Nationality of Her Own:Women, Marriage, and the Law of Citizenship 15–16, 20–21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. . . . And from 1790 until 1934, the foreign-born child of a married couple gained U. S. citizenship only through the father....
For close to a half century, as earlier observed, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia; Wiesenfeld. In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.” Mississippi Univ. for Women, 458 U. S., at 725. In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed. Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. In light of the equal protection jurisprudence this Court has developed since 1971, §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
FN 13 Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. J. E. B. v. Alabama; see, e.g., Craig v. Boren, (1976); Weinberger.
Tuesday, May 30, 2017
1. Do nude pictures of parents help judges decide who should get custody?
2. A silly question?
3. Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?
4. And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?
5. If the objective was to humiliate the mother, undoubtedly the father succeeded
6. But how does humiliation help in family court?
7. How does irrelevant and scandalous information help a judge determine the best interests of the child?
8. More importantly -- from the child’s perspective -- what is the long-term impact of this needlessly hurtful approach to litigation?
12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:
Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
Intimidating and threatening behaviour often becomes self-evident in texts.
A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them.
13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.
14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.
15. But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.
29g. The Applicant has tried to turn this custody motion into a bit of a witch hunt: She’s done bad things. Maybe she’s a bad mother.
32d. All of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past.
[h/t Sonia Lawrence]
Tuesday, May 16, 2017
The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty:
Mothers and the Constitution
The seminar will explore the relationship between the changing practice of motherhood and the law. Using Supreme Court cases, important state cases, and supplementary historical and statutory materials we will study the many ways that constitutional interpretation and government policy have regulated the lives of different kinds of mothers and occasionally of fathers too. We will organize our discussions around four key issues: Custody and Care, Reproduction, Work, and State Support, focusing on the twentieth century; and taking into account the influence of such factors as race, religion, migration, and sexuality on developing constitutional interpretation.
The dates the seminar will meet are: October 6, October 13, November 3, and November 10; Fridays from 2-5 p.m. The seminar will be held at the New-York Historical Society, 170 Central Park West, New York City.
Alice Kessler-Harris is R. Gordon Hoxie Professor of American History, Emerita, at Columbia University where she was also Professor in the Institute for Research on Women and Gender, and held a faculty affiliate appointment in the Columbia University School of Law. Kessler-Harris specializes in the history of American labor and twentieth century social policy. Her books include In Pursuit of Equity: Women, Men and the Quest for Economic Citizenship in Twentieth Century America (2001), which won the Bancroft, Taft, Joan Kelly and Herbert Hoover prizes; Gendering Labor History (2007), which contains her essays on women, work and social policy, and A Woman’s Wage: Historical Meanings and Social Consequences (1990). She is perhaps best known for the now classic, Out to Work: A History of Wage-Earning Women in the United States (1982, 2001). She is co-editor, among other books of Protecting Women: Labor Legislation in Europe, Australia, and the United States, 1880-1920 (1995); Democracy and Social Rights in the ‘Two Wests’; and Democracy and the Welfare State, which explores the impact of expanding citizenship rights in Western Europe and the U.S.
Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School where she teaches Contracts, Family Law, and research seminars on “Meanings of Motherhood: Legal and Historical Perspectives” (with Alice Kessler-Harris) and “Abortion: Law in Context.” Prof. Sanger’s scholarship focuses on how law influences family formation in such areas as immigration, custody, and adoption, and particularly regarding relationships between mothers and children. Her book About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press, 2017) concerns the role of abortion in American culture, politics, and in women’s lives. Sanger’s 2012 article, The Birth of Death: Stillborn Birth Certificates and the Problem for Law won a prize for “exemplary legal writing” from the journal Green Bag. Sanger is also the senior editor of a leading law school casebook, Contracts: Cases and Materials (8th ed., 2013).
The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their c.v. and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at MMarcus@nyhistory.org until May 22, 2017 Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to MMarcus@nyhistory.org.
There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.
The Institute for Constitutional History (ICH) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution. Located at the New York Historical Society and the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICH prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICH also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.
Wednesday, May 3, 2017
Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)
In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.
Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray
Niki Megalommati, Women and Family Law in Byzantium: Some Notes
Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage
Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona
Stanley Chojnacki, Wives and Goods in the Venetian Palazzo
Tuesday, April 18, 2017
I remember when this issue first came to my attention years ago. A student in my Family Law class wrote his thesis paper on the topic. I couldn't believe this was the state of the law and asked him to check and recheck his research on the laws and cases. He just kept finding more evidence.
It seemed implausible to me that this was the state of the law given that biological fathers have a difficult time normally getting custodial rights when their only crime is being in a non-marital relationship. Biology is not the only factor for parental rights under the Constitution, the Supreme Court has said, but requires "biology plus." Biology plus the proper social relationship with the child and the mother in a unitary family status. It is hard to argue that rape is a "unitary family status."
Five Maryland legislators could have ended a policy that forces women to share child custody with their rapists. Instead the five legislators, all men, buried the bill.
Maryland is one of seven states without a law allowing women to terminate parental rights for their rapists, if their child was conceived as a result of sexual assault, according to reproductive rights organization NARAL. The state’s current policy forces survivors to negotiate child custody and adoption issues with their attacker. In a bid to update the draconian policy, Maryland Delegate Kathleen Dumais introduced legislation that would allow a woman to cut her rapist’s parental rights.
But while the bill passed both Maryland’s House and Senate, the bill’s text varied between the two legislative bodies. On Monday, the last day of legislative session, a five-person negotiating group was set to decide on the bill’s final text, the Baltimore Sun reported. Instead, the five-man group let the bill fall by the wayside, running out the legislative session’s clock without finalizing the bill’s text. ***
“For those who choose to carry to term, a woman who becomes pregnant through rape runs the risk that the rapist will assert his parental rights,” NARAL’s Maryland branch wrote in a statement of support for Dumais’s bill. “If she chooses to raise the child herself, it could mean her rapist inserting himself into her life for the next 18 years. The perpetrator may also hinder efforts to place the child up for adoption. In some extreme cases, rapists have only agreed to allow an adoption to go forward if the victim promised not to testify against him at Trial.
Here's some of the legal research on the subject:
Kara Bitar, The Parental Rights of Rapists, 19 Duke J. Gender L. & Pol'y 275 (2012)
Katherine Wendt, How States Reward Rape: An Agenda to Protect the Rape-Conceived Child Through the Termination of Parental Rights, 2013 Mich. St. L. Rev. 1763 [Westlaw link]
Jihye Yoo, Xiaohan Mei, Craig Hemmens, and Mary K. Stohr, Rapists' Parental Rights: Adding Insult to Injury, 52 Crim. L. Bull. (2016) [Westlaw link]
Monday, April 10, 2017
Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.
In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.
Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”
Jennifer Hendricks, Fathers and Feminism: The Case Against Genetic Entitlement, 91 Tulane L.Rev. 473 (2017)
This Article makes the case against a nascent consensus among feminist and other progressive scholars about men’s parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants.
These proposals disregard the mother’s existing parental rights and transfer too much power from women to men. Although they directly affect only a particular class of legal disputes about genetic fathers and adoption, their implications stretch not only to other kinds of custody disputes but also to the law’s treatment of sex and gender differences in reproduction more broadly. The principle of genetic entitlement that underlies these proposals is male-centered and therefore an undesirable basis for the law of reproduction and parentage.
Thursday, March 30, 2017
Linda Fenitmen, Blaming Mothers: American Law and the Risks to Children's Health (2017)
In Blaming Mothers, Professor Fentiman explores how mothers became legal targets. She explains the psychological processes we use to confront tragic events and the unconscious race, class, and gender biases that affect our perceptions and influence the decisions of prosecutors, judges, and jurors. Fentiman examines legal actions taken against pregnant women in the name of “fetal protection” including court ordered C-sections and maintaining brain-dead pregnant women on life support to gestate a fetus, as well as charges brought against mothers who fail to protect their children from an abusive male partner. She considers the claims of physicians and policymakers that refusing to breastfeed is risky to children’s health. And she explores the legal treatment of lead-poisoned children, in which landlords and lead paint manufacturers are not held responsible for exposing children to high levels of lead, while mothers are blamed for their children’s injuries.Blaming Mothers is a powerful call to reexamine who - and what - we consider risky to children’s health. Fentiman offers an important framework for evaluating childhood risk that, rather than scapegoating mothers, provides concrete solutions that promote the health of all of America’s children.
Monday, March 20, 2017
In March of 1907, Congress passed the Expatriation Act, which decreed, among other things, that U.S. women who married non-citizens were no longer Americans. If their husband later became a naturalized citizen, they could go through the naturalization process to regain citizenship.
But none of these rules applied to American men when they chose a spouse.
"It's as though she walks under his umbrella. He puts his arm around her and poof! she's a citizen," says Linda Kerber, a professor who teaches gender and legal history at the University of Iowa. "She has had the good sense to come out from these monarchies and opt for an American. She's a sensible woman, we adore her."
"Whereas an American-born woman who marries a foreign man, oh my goodness, she is disloyal," Kerber said.
When Mackenzie v. Hare — a case challenging the expatriation act that involved a woman married to a British citizen — reached the Supreme Court in 1915, the justices upheld the law, arguing that the women chose to marry knowing this was a consequence so they weren't being forced to expatriate. Then World War I began and hundreds of women found themselves affected by the law.
Once American women got the right to vote in 1920, they started lobbying lawmakers, pushing them to recognize that their citizenship should not be tethered to that of a husband. "There's a big scramble in those first two years for members of Congress to get on the good side of women and to get women to join their constituency," Kerber said. Eventually Rep. John Cable, of Ohio, introduced a bill to address the disparity. He may have been motivated by a nearing bid for re-election.
The Cable Act of 1922, also known as the Married Women's Independent Nationality Act, said women kept their citizenship if they married a man who could become a citizen even if he opted not to. "It sounds as though the Cable Act fixed it, if they married a man eligible for citizenship," Kerber says. However, "there's a lot of fine print."
These expatriated women had to petition the government to regain their citizenship, and their husband's status still played a role in theirs: if he wasn't eligible for citizenship, she could be denied. And if she lived on foreign soil for two years, she could lose her citizenship.
See also Linda Kerber, chap. 1, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship
Leti Volpp, chap. 3, Expatriation by Marriage: The Case of Asian American Women, in Feminist Legal History: Essays on Women and Law (Tracy A. Thomas & TJ Boisseau, eds).
Tuesday, February 7, 2017
Ruth Bader Ginsburg spent a large portion of her legal career advocating for women’s rights and was appointed as the second female justice to the Supreme Court in 1993. In this animated interview, she describes attending law school with a 14-month-old baby at home. Ginsburg attributes some of her career successes to her husband’s flexibility and the experience of being a mother. “I think I had better balance, better sense of proportions of what matters,” she says. "I felt each part of my life gave me respite from the other.”
This interview was conducted by Ryan Park for his story "What Ruth Bader Ginsburg Taught Me About Being a Stay-at-Home Dad".
Friday, February 3, 2017
New Books: Thinking About Prenuptial Agreements from a Feminist Perspective--Choice, Autonomy, and the Imbalance of Power
Sharon Thompson, Prenuptial Agreements and the Presumption of Free Choice (Hart Publishing 2015)
This book provides an alternative perspective on an issue fraught with difficulty – the enforcement of prenuptial agreements. Such agreements are enforced because the law acknowledges the rights of spouses to make autonomous decisions about the division of their property on divorce. Yet this book demonstrates that, in the attempt to promote autonomy, other issues, such as imbalance of power between the parties, become obscured.
This book offers an academic and practical analysis of the real impact of prenuptial agreements on the relationships of those involved. Using a feminist and contractual theoretical framework, it attempts to produce a more nuanced understanding of the autonomy exercised by parties entering into prenuptial agreements. This book also draws on an empirical study of the experiences and views of practitioners skilled in the formation and litigation of prenuptial agreements in New York. Lastly, it explores how the court might address concerns regarding power and autonomy during the drafting and enforcement processes of prenuptial agreements, which in turn may enhance the role that 'prenups' can play in the judicial allocation of spousal property on the breakdown of marriage.
Friday, January 27, 2017
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). See Introduction; Chp 1, "What do you Women Want?"; Chp 2 "The Pivot of the Marriage Relation"; Chp 3 "Divorce is not the Foe of Marriage"; and Chp 4 "The Incidental Relation of Mother."
Today's blog is on Chapter 5, "Our Girls" on Stanton's theories of feminist parenting and raising up a new generation free from gendered norms.
After decades of activism and proposed legal reform, Stanton grew increasingly frustrated with the lack of tangible progress. One continual sticking point was women themselves. Stanton repeatedly heard from women “I have all the rights I want.”
Women’s resistance, Stanton believed, was based on their own social and religious acculturation of female difference and inferiority. As she entered her sixties and then seventies, Stanton became convinced that these foundational norms needed to be changed if there was any hope of meaningful and sustainable change for women’s equality.
Her first strategy was to teach the next generation differently. Her goal was to raise children the same: tell girls to climb trees, play sports, and like science and teach boys to be kind, have manners, and like music. In the 1860s, Stanton toured the country 10 months of the year for 11 years, speaking to large crowds as part of the Lyceum tour. Here she featured two key speeches, “Our Girls” and “Our Boys.” These popular speeches appealed to mothers, as they gave philosophical and practical ways to raise children. She also advocated coeducation of the sexes from primary school through college, eschewing concerns that young men were too immoral to study alongside young women.
As part of this redirection of the next generation, Stanton advocate for legal reform of child custody laws. At common law, fathers were solely given custody rights, in the case of separation, but also to make decisions about apprenticeships or guardianships at his death. In this one area, the courts kept pace with Stanton’s demands. The courts had begun to evolve away from the paternal right of custody to stronger assumptions of the right of maternal custody especially for young children of “tender years.” This law matched the social norms of the reverence for mothers, although still rendering judgments about “unfit” mothers based on political views or personal relationships. The custody issue was an issue that triggered large grassroots support among the women Stanton spoke to, as many had experienced the legal loss of their own children.
Stanton’s second grand strategy was to extirpate the origins of the norms of gender inferiority which she located in religious doctrine. The problem, she said, was that women heard everything Sunday from the pulpits of how women was morally inferior, having succumbed to the temptation of evil in the Garden of Eden, and created second to man for the sole purpose of being his help mate. Women believed that their inferiority of law and society was God ordained, and thus fundamentally resisted other ideas.
Her work was to reinterpret the biblical texts that had been used to subordinate women. Having been trained in Greek, the eighty-year old Stanton set out to offer alternative interpretations of key portions of the Bible in her book The Woman's Bible. In what we might now call feminist theological interpretation, Stanton questioned the bias of the text, went to the original meaning of the Greek words, and read women’s experience and stories back into the biblical lessons. This work, however, was too radical even for the women suffrage reformers. They censored her and the book and cast her out from the organization she had founded and lead for fifty years. Stanton didn’t care: her goal was for meaningful and permanent change for women’s equality.
Wednesday, January 18, 2017
Natasha Sarin, The Impact of Paid Leave on Female Employment Outcomes
Abstract:This paper provides evidence on the impact of paid leave legislation on female employment outcomes. Using a difference-in-differences and difference-in-difference-in-differences strategy, I study the impact of two state-level programs in California and New Jersey. This paper is first to exploit the fact that the cost of paid leave in these states is larger for firms with 50 or more employees (who are forced to offer job protection under the federal FMLA) than for firms with 49 or fewer employees. Comparing firms above and below this cutoff, I estimate that paid leave with job protection reduces female hiring by around 1.15 percent in large firms compared to small firms where leaves are unprotected. Women of child-bearing age are most negatively impacted (hiring falls by around 2 percent), as are female employees in industries that are relatively less human capital intensive, like utilities and accommodation and food services.
Monday, January 9, 2017
Sarah Boonin, Ten Years Too Long: Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence, 39 Harv. J. Gender & Law 369 (2016)
Abstract:Social Security's retirement program has evolved over time to become a major source of economic security in older age for workers' family members, including spouses and ex-spouses. To qualify for derivative retirement benefits as an ex-spouse, the applicant must have been married to the wage earner for at least ten years. This Article explores in-depth this so-called "ten-year rule" and critiques its application in cases involving domestic violence. Drawing on a gut-wrenching case study, the rule's legislative history, as well as social science and feminist literature on the impacts of domestic violence, this piece argues that the ten-year rule unfairly punishes and imperils victims of domestic violence. It serves as the final blow, felt long after the abuse has ended. The Article proposes and defends an amendment to the Social Security Act that would extend vital retirement benefits to victims divorced from shorter-term marriages.