Gender and the Law Prof Blog

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

Tuesday, April 18, 2017

MD Legislature Fails to Terminate Law Allowing Custodial Rights for Rapists

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."

All-Male Panel Fails to End Maryland Law that Forces Women to Share Custody with their Rapists

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]

April 18, 2017 in Constitutional, Family | Permalink | Comments (0)

Monday, April 10, 2017

Cloaking: Public Policy and Pregnancy

Julie Manning Magid, Cloaking: Public Policy and Pregnancy, 53 Amer. Bus.L.J. 439 (2016)
 
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.”

April 10, 2017 in Equal Employment, Family, Poverty, Pregnancy | Permalink | Comments (0)

The Feminist Case Against Fathers' Genetic Entitlement

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.

April 10, 2017 in Family | Permalink | Comments (0)

Thursday, March 30, 2017

New Books: Blaming Mothers

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.

March 30, 2017 in Books, Family | Permalink | Comments (0)

Monday, March 20, 2017

When Laws Held that Women (but not Men) Lost American Citizenship by Marriage

That Time American Women Lost Their Citizenship Because They Married Foreigners

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).

 

March 20, 2017 in Family, International | Permalink | Comments (0)

Tuesday, February 7, 2017

Justice Ginsburg on Law School, Motherhood, and Her Groundbreaking Cases

Ruth Bader Ginsburg on the Perspective that Comes with Motherhood

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".

February 7, 2017 in Courts, Family, SCOTUS, Women lawyers | Permalink | Comments (0)

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. 

February 3, 2017 in Books, Family, Gender | Permalink | Comments (0)

Friday, January 27, 2017

19th Century Feminist Theory of Raising "Our Girls"

I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  See IntroductionChp 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.

ECSThomasFig6.1

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.

 

January 27, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Wednesday, January 18, 2017

Economic Study Concludes Paid Leave Reduces Hiring of Women

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.

 

January 18, 2017 in Equal Employment, Family | Permalink | Comments (0)

Monday, January 9, 2017

Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence

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.

 

January 9, 2017 in Family, Violence Against Women | Permalink | Comments (0)

Thursday, December 22, 2016

Chapter Previews of New Book on Founding Feminist Elizabeth Cady Stanton and Family Law Reform

ECSBookJacket
  

I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  

Introduction

Chapter 1, "What do you Women Want?" (Marital Property)

Chapter 2 "The Pivot of the Marriage Relation" (Marriage reform)

Chapter 3 "Divorce is not the Foe of Marriage" (Divorce reform)

Chapter 4 "The Incidental Relation of Mother" (Reproductive control) 

 

And coming soon, the rest of the book: 

Chapter 5 "Our Girls" (Feminist parenting, maternal custody, and shifting societal norms of gender)

Chapter 6 "Still Many Obstacles" (Stanton's legacy to feminism and the modern reform of domestic relations law)

December 22, 2016 in Books, Family, Legal History | Permalink | Comments (0)

Friday, December 16, 2016

"The Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”

Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship.  But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role. 

Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.

This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations. 

FFLPictureECSPoster

 

What Stanton did talk about was voluntary motherhood.  Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands.  It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.

Stanton also wrote a great deal about infanticide, rather than abortion.  Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement.  Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.

December 16, 2016 in Abortion, Books, Family, Legal History | Permalink | Comments (0)

Wednesday, December 14, 2016

Chap. 3 Stanton & Family Law: "Divorce is Not the Foe of Marriage"

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. Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage. Today is Chapter 3 on divorce reform and domestic violence.

From the Introduction to the chapter:

The “marriage question,” as it was called in the nineteenth century, was less about marriage and all about divorce. America inherited the divorceless legal tradition of England derived from canon law, prohibiting divorce but allowing separation and annulment. A few colonies and states experimented with divorce, slowly expanding the fault grounds for divorce by the middle of the nineteenth century, with a few states adopting broad grounds for any misconduct or cause. Legislatures were guided by legal concepts of individualism and contract theory, and influenced by temperance arguments for the protection of women. As the country grew through expansion, immigration, and industrialization, divorce increased. Numbers went from 9,937 in 1867, the first year a national census on divorce was taken, to 33,461 in 1890 and to 167,105 by 1920. The moral outcry was loud, as clergy and moral reformers predicted the deterioration of the family and the downfall of society.

Stanton was at the forefront of the very public debate on divorce. She viewed divorce as an important issue of women’s rights because it freed women from marriage, where their legal status was denied and their personal freedoms curtailed. Viewing marriage as a trap, she was supportive of any legal means for women to escape, including no-fault or “easy divorce.”Taking this a step further, Stanton argued that women had a duty, an obligation to divorce, in cases of domestic violence and intemperance, to protect themselves and their children.

Divorce had been seen historically and biblically as a way for men to “put away their wives,” but Stanton reframed it as a legal remedy for women. She “single-handedly shifted the age-old idea of divorce as a male prerogative to a right demanded by women on humanitarian grounds.” Women needed divorce, Stanton argued, to escape domestic violence, abuse, poverty, and simple unhappiness. “Liberal divorce laws for oppressed wives,” Stanton proclaimed, “are what Canada was for Southern slaves.” The majority of divorces, over two-thirds, were filed by women—a key fact for Stanton proving the importance of this issue for women and the propriety of including it within the women’s rights platform. Divorce was not a morality crisis, but simply a consequence of women’s assertion of rights. “This is woman’s transition period, from slavery to freedom, and all the social upheavings, before which the wisest and bravest stand appalled, are but necessary incidents in her progress to equality.” Divorce provided the self-help remedy that let women enforce their own rights and expectations of marriage, with the secondary effect of transforming marriage into a more egalitarian structure.

Stanton’s tenaciousness on divorce, however, alienated colleagues and divided the women’s rights movement. Her vocal support of divorce outraged reformers, increased opposition to women’s rights, and contributed to the split in the organized women’s movement. Stanton remained undeterred, convinced of the necessity of divorce to women’s full equality. As the eighty-year-old Stanton recalled, “[S]o bitter was the opposition to divorce for any cause that but few dared to take part in the discussion.” But, she said, “I was always courageous in saying what I saw to be true, for the simple reason that I never dreamed of opposition. What seemed to me to be right I thought must be equally plain to all other rational beings.”

Stanton initially presented divorce as woman’s duty to free herself and her children from an alcoholic husband and domestic violence.

She first wrote of her support for divorce in 1850 in a short article aptly titled “Divorce,” published under the pseudonym “Sun Flower” in the women’s temperance newspaper, the Lily. At this time, a New York legislative committee had proposed a bill to expand divorce beyond the cause of adultery to include desertion, imprisonment, drunkenness, and insanity. Stanton brought this to her readers’ attention and gave it her vote. “I see there is a bill before the Legislature providing some new doors, through which unhappy prisoners may escape from the bonds of an ill assorted marriage. . . . I hope that bill may pass.” She strongly endorsed divorce in the context of intemperance and abuse. “The Legislature, so far from placing any barrier in the way of a woman wishing to leave a drunken husband, ought to pass laws, compelling her to do so.” Divorce, she suggested, would be woman’s duty in such circumstances. Going further, Stanton proposed a broader right to no-fault divorce. “If, as at present, all can freely and thoughtlessly enter into the married state, they should be allowed to come as freely and thoughtfully out again.”

She later then wove divorce reform of no-fault divorce and equal fault divorce into her speeches to the New York legislature and to the public, “speaking wisdom to the popular ear.” But the notorious McFarland v. Richardson trial gave her a national stage on which to play out her critique of marriage and solution of divorce.  McFarland, with premeditation, shot his ex-wife’s lover, a famous journalist. The jury acquitted on grounds that McFarland was entitled to defend his property of his home and his wife. Even though his wife had divorced him (out-of-state). And even though he had committed domestic violence against her.

  McFarlandTrialDayOne

 Stanton then repeated her shocking demand for free and easy divorce a year later in the context of the Laura Fair trial in San Francisco. Fair was sentenced to death for shooting her longtime lover when he returned to his wife. Stanton argued the disparate inequalities in the law that would starkly excuse the murder by a husband, but condemn the same murder by a woman.  

Laura Fair

December 14, 2016 in Books, Family, Legal History | Permalink | Comments (0)

Thursday, December 8, 2016

Elizabeth Cady Stanton on Frederick Douglass' Interracial Marriage

 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 and Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage.

ECSFD

 

 Sticking with Chapter 2, here is an excerpt I have been reading at book talks:

Stanton’s second goal was to offer a solution that would transform marriage into a relation respecting women’s equal individuality. Her proposal was to conceptualize marriage legally as a contract, rather than a sacrament or status, which would allow freedom to designate the terms and the termination of the marriage.[i] Socially, she advocated an egalitarian vision of marriage as a union of soul mates that fully respected the freedom of each individual as they worked together as partners in the joint enterprise of the family. This transformational vision of marriage required little state regulation, permitting free divorce and other restrictions on choice of marital partner. Stanton believed in the theoretical ideal of free love, resulting “whenever compulsion and restraint, whether of the law or of a dogmatic and oppressive public opinion, are removed.”[ii]

 

So when her friend Frederick Douglass remarried to Helen Pitts, a white woman, she sent her personal congratulations and support for his subversive act. She noted that

there’s much hostile criticism on your condescension in marrying a white woman. After all the terrible battles and political upheavals we have had in expurgating our Constitutions of that odious adjective “white” it is really remarkable that you or all men should have stooped to do it honor. The “white” feature of this contract is bad enough, but “the woman” is still worse.

 

Stanton commented on the gender implications of the controversy, in which his “large circle of admiring friends protest” against him risking his legacy as a black civil rights leader on white interests, especially those of a mere woman.[iii] Stanton wanted to draft a public announcement of support for Douglass from both her and Anthony and invite him to speak at the next women’s rights convention. Anthony refused, concerned with the potential backlash on “the subject of amalgamation” against the growing consensus on women’s suffrage. Anthony wrote to Stanton, “I do hope you won’t put your foot into the question of intermarriage of the races. It has no place on our platform, any more than the question of no marriage at all, or of polygamy, and so far as I can prevent it, shall not be brought there.” She pleaded, do not “throw around that marriage the halo of a pure and lofty duty to break down race lines.”[iv] For Stanton had publicly supported interracial marriage before, attending legislative hearings in Boston to repeal colonial miscegenation laws and printing an editorial in her newspaper in support of interracial marriage.[v] But this time, she backed down.

 

Despite the suggestion that marriage was not a proper issue of women’s rights, for Stanton, it was central to her vision of equality. Changing the marriage relation, she wrote early in the movement, “is at the foundation of all reforms.”[vi]

 

Notes

[i] ECS, “Side Issues,” Rev., Oct. 6, 1870; ECS, “The Kernel of the Question,” Rev., Nov. 4, 1869.

[ii] DuBois, “On Labor,” 65.

[iii] ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love across Color Lines (New York: Hill and Wang, 1999).

[iv] SBA to ECS, Jan. 27, 1884; Newman, 4.

[v] ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.

[vi] ECS to SBA, Mar. 1, [1852].

 

 

December 8, 2016 in Books, Family, Legal History | Permalink | Comments (0)

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)