Thursday, July 14, 2016
Jamie R. Abrams joins us as a guest blogger for July. She is a professor at the University of Louisville Brandeis School of Law where she teaches Torts, Family Law, Women & Law, and Legislation.
Despite rapid and enduring transformations in family structures, it has been decades since many states significantly amended their parentage laws. A Uniform Parentage Act (UPA) Drafting Committee is hard at work preparing a 2017 revision to the uniform act last updated in 2002. These revisions do important work to fix problematic gendered framings of the marital presumption in a post-Obergefell world.
Most states continue to follow a marital presumption that presumes that when a wife gives birth to a child her husband is the legal parent of the resulting child. One high profile example of this presumption was when Kim Kardashian became pregnant with Kanye West’s child, the marital presumption would have presumed that Kris Humphries was the legal father because he was still married to Kim at the time. This gendered language, however, problematically presumes that a married couple is one man and one woman. This, of course, is no longer the case. Many state laws need to be updated to reflect this modern reality. In fact, only seven states have so far amended their marital presumption laws after Obergefell. Other states may, however, be interpreting the gender specific language of their parentage laws in a way that is inclusive of same-sex couples at the judicial level or on a case-by-case level.
The 2017 UPA would extend that marital presumption to either a male or female spouse of the woman who gave birth. Notably, the 2017 UPA does not propose a completely gender-neutral standard. The drafting committee acknowledged that the State of Washington, for example, had adopted a completely gender-neutral approach. It noted, however, that this could produce unusual results. For example, it might mean that a wife would be presumed to be the legal parent of a child birthed by another woman if a husband impregnated a woman that was not his wife during an affair. The gender-neutral marital presumption, in that instance, might then override the birthing woman’s parentage. Washington was the only state to adopt an entirely gender-neutral presumption. The UPA Drafting Committee explained that the other six states that had amended their parentage laws had done so in a manner similar to the 2017 UPA’s proposed approach, which expands the marital presumption to the female spouse of a birthing wife.
This blog post only summaries changes to the marital presumption’s gendered framing. The 2017 UPA would also modify surrogacy provisions, provide certain rights to access information about gamete donors, and modify the handling of competing presumptions. To learn more about the drafting process visit the Drafting Committee’s site of the Uniform Law Commissioners or to view a comparison between the 2002 and 2017 UPA see the Committee’s chart.
Monday, July 11, 2016
Robin Sager, Marital Cruelty in Antebellum America (LSU Press 2016)
In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles of aggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty. * * *
Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.
Wednesday, June 22, 2016
James Gray Pope, The Thirteenth Amendment at the Intersection of Class and Gender: Robertson v. Baldwin's Exclusion of Infants, Lunatics, Women and Seamen, 39 Seattle L. Rev. (2016)
In Robertson v. Baldwin , the Supreme Court held that merchant seamen under contract could be legally compelled to work notwithstanding the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. According to the Court, seamen were “deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults,” and therefore could—along with children and wards—be deprived of liberty. From a present-day perspective, the Court’s casual deprecation of seamen’s intelligence and character might seem anachronistic, even shocking. ***
Robertson’s domestic exclusion raises intertwined issues of class and gender. As a general rule, the Thirteenth Amendment limits inequalities of class, where class is conceived as “power relationships among groups involved in systems of production.” Regardless of contractual consent, workers may not be legally or physically compelled to work. The Supreme Court has explained this principle in terms of class power, as necessary to prevent the “master” from dominating the “laborer”: “When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.” Robertson carves out a gendered exception to this protection, relegating seamen to what political theorist Carole Pateman has described as “the private sphere of natural subjection and womanly capacities.”
By contrast, it is an open question whether the Amendment reaches gender relations. On that issue, Robertson has historically served to block jurisprudential development by preserving the domestic sphere as a zone where services can be coerced free from Thirteenth Amendment scrutiny. As Joyce McConnell has shown, Robertson’s domestic exclusion has operated to deprive women, married or not, of protection against coercion by intimate partners. When a woman enters into an intimate relationship with a man, then, she departs the public sphere of class relations and loses her Thirteenth Amendment protection against coercion of services. Over the past few years, however, several courts have applied statutory bans on “involuntary servitude” and “forced labor” (a “species of involuntary servitude”) to protect women and children in domestic settings.
Tuesday, June 21, 2016
M. Christian Green, "Graceful Pillars": Law, Religion, and the Ethics of the "Daughter Track", Journal Law & Religion (forthcoming July 2016)
What is striking in these responses is the interplay and ethical tension between concepts of virtue and necessity, in a way that construes and constructs the “daughter track” as emblematic of a particular kind of filial virtue that manifests itself in what is often a situation of necessity, in which someone must step up to provide care in the face of scant resources afforded by the surrounding society. In other words, these daughters step up to bear the burden of eldercare because no one else will.
The plight of women on the “daughter track” raises crucial ethical questions about justice, care, and gender connection with eldercare. It does so in a moral and ethical context often shaped not only by the choice to care, but also by virtues forged in contexts of necessity. There are a number of conceptual frameworks in feminist philosophy and feminist legal theory that might be used to analyze the “daughter track” problem. One of the newest and most promising frameworks is the “vulnerability” framework that has been argued powerfully and eloquently about Martha Albertson Fineman. Another longstanding and influential framework is that of the “ethics of care.” With origins in the developmental psychological work of Carol Gilligan, who famously identified and juxtaposed a masculine “ethic of justice” with a feminine “ethic of care,” the ethics of care framework, originally.
While the ethic of care framework might seem to be the most obvious framework for analyzing the “daughter track,” since it involves daughters providing care to elderly parents, it is not the framework that I have chosen to apply here. The origins of the ethics of care in maternal experience do not fully track the daughter care experience, as suggested by contrasts between the “Mommy Track” and the “Daughter Track” in the popular media. Motherhood is most often chosen and eagerly awaited with positive expectations of giving birth and raising to maturity a child who may end up taking care of the parents someday. Eldercare needs, while in a certain sense universal and inevitable, since we all age and most of us have parents who live into old age, often strike out of the blue or build gradually and then hit like a tsunami when a parent’s need for care becomes acute, and the process is one of decline and ultimately death, leaving the caregiver with significantly depleted energy and funds to provide for their own care.
Monday, June 13, 2016
Is Marriage Worth the Trouble for Women? The short answers is "No."
First, confounding the view of marriage as the female heaven and haven is the fact that marriage actually appears to benefit men more than it does women. Research has shown that the "marriage benefits"—the increases in health, wealth, and happiness that are often associated with the status—go disproportionately to men. Married men are better off than single men. Married women, on the other hand, are not better off than unmarried women.
Second, in contrast to the myth that marriage is a woman’s ultimate and sacred fulfillment is the reality that roughly two-thirds of divorces are initiated by women.***
A recent paper by Stanford sociologist Michael J. Rosenfeld analyzed longitudinal data from the How Couples Meet and Stay Together survey—a survey of a nationally representative sample of 2,262 adults in heterosexual relations followed from 2009 to early 2015.
The results revealed an intriguing pattern: As expected, women initiated roughly two thirds (69%) of the breakups in heterosexual marriages. However, the gendered trend in relationship breakups held only for marriages and not for other non-marital unions. Moreover, women in marriages, but not in other relationships, reported lower levels of satisfaction.*
This finding appears to provide support for the notion that women experience the institution of marriage as oppressive, in large part because it emerged from and still carries the imprint of a system of female subjugation.
H/t Marcia Zug
Friday, May 6, 2016
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
Tuesday, April 19, 2016
Shannon Weeks McCormack (Washington), Postpartum Taxation: The Internal Revenue Code and the Opt Out, Georgetown L.J. (forthcoming.
Abstract:Legislation seeking to ensure that women receive equal pay for equal work has been on the books for decades. Nevertheless, the average American woman still receives less than eighty cents for every dollar earned by the average American man. Happily, the gender pay gap between men and childless women is narrowing over time. Meanwhile, the gap between mothers and others continues to widen. Career interruptions contribute significantly to this disturbing trend — nearly half of mothers opt out of the workforce at some point in their lives, most often to care for young children. Faced with too-short (or non-existent) maternity leaves, inflexible work schedules and the soaring costs of childcare in the United States, this opt out phenomenon is hardly surprising. But with the decision to opt out comes grave cost. Over 90% of opt out moms want to return to the workforce several years after off ramping. Unfortunately, many discover that they are unable to do so. A mother that does manage to reenter the workforce will find that even a short off ramp results in a sizeable and disproportionate reduction in her annual earnings that will persist for every year of her remaining life.
Given this dismal reality, experts that study the biases faced by women in the workplace encourage mothers who want to maintain careers to resist opting out during their children’s preschool years (and to incur the many high costs of doing so) in order to protect their most valuable economic asset — their lifelong earning capacity. Surprisingly, these insights are under- (if not completely un-) utilized in tax scholarship considering the taxation of women and the family. Incorporating these critical insights, this Article shows that the tax laws are already well suited to provide new mothers the encouragement urged by so many non-tax scholars. This Article first proposes several reforms to ensure the postpartum earnings of new mothers are not over-taxed. It then discusses existing mechanisms used by the tax laws to encourage long-term investment and identifies two mechanisms that could be easily fashioned to help new mothers remain in the very imperfect workforce that exists today.
Monday, April 4, 2016
All workers in New York state will soon be eligible for a guaranteed 12 weeks of paid family leave, one of Gov. Andrew Cuomo’s legislative priorities, which passed Thursday in a long-debated budget agreement.
Beginning in 2018, all full- and part-time employees who’ve been working at their jobs for at least six months will have access to up to eight weeks of leave at half their salaries. The policy, which will be funded by employees through payroll deductions, will gradually phase up over four years to 12 weeks and a maximum of two-thirds of the state’s average wage. It also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act.
With this new policy, New York joins California, New Jersey, and Rhode Island on the elite list of U.S. states that offer guaranteed paid leave to hang out with a new baby, bond with an adopted or foster child, or care for a sick family member. Rhode Island offers four weeks of partial pay and New Jersey and California offer six, placing New York far ahead of the pack, though it still trails most other countries in the world when it comes to maternity leave.
Friday, March 18, 2016
The book jacket! Publication is one step closer!
For a preview of the first chapter, see Tracy A. Thomas, The "Radical Conscience" of Nineteenth-Century Feminism
See also Tracy A. Thomas, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW (2016)
Thursday, February 11, 2016
Susan Boyd (British Columbia), “Equality: An Uncomfortable Fit in Parenting Law”, in Robert Leckey, ed., After Legal Equality: Family, Sex, Kinship (Routledge 2015), 42-58
Since the second wave of the women’s movement and the emergence of the fathers’ rights movement in the 1970s and 1980s, family law has moved towards formal legal equality and gender-neutral language. Early liberal feminists were optimistic about involving men as equal partners and parents and were keen to remove gender-based legal assumptions. Fathers’ rights advocates lobbied for equal or joint custody norms and for mothers to have equal financial responsibilities, in order to redress what was and still is perceived as discrimination against men. In most modern family laws, male and female spouses now owe reciprocal duties of financial support and disputes over children are determined by a child’s best interests, rather than by assumptions based on gender. More recently, this gender-neutral language has accommodated the reality of same-sex partnerships and same-sex parenting.
These gender-neutral legal norms, however, sit uncomfortably next to familial realities that remain stubbornly gendered and unequal in certain respects, particularly because women still assume greater responsibility for domestic labour and childcare. Many feminists challenge calls for equal treatment of fathers and instead propose legal norms that recognize these unequal social relations. Even if the legal norms are gender-neutral on their face, they should include guidelines that direct attention to gendered patterns or they should be interpreted so as to take account of gendered social realities still supported by social and economic structures. For instance, spousal support law should take account of the patterns of domestic labour in the family at issue. As for child custody, norms should direct attention to whether one parent has taken primary care responsibility for a child and whether domestic abuse is a factor (e.g. Boyd 2002; Shaffer and Bala 2003).
This chapter uses laws on parenthood to study the contradiction between the trend towards formal equality and ongoing gendered patterns of care, as well as the growing phenomenon of parenting by lesbians and by gay men and by single mothers by choice, by which a woman plans to be a child’s sole parent. Specifically, it assesses the innovative potential of the new Family Law Act (FLA)1 in the Canadian province of British Columbia, which redefines legal parenthood and alters the regulation of post-separation parenting. The new definitions of legal parenthood respond to calls for the recognition of same-sex parenting and reproductive technologies. The new norms on post-separation parenting respond to calls for equal treatment of fathers, but they also take account of research on the troubling impact of shared parenting law reforms regulating post-separation disputes over children. As such, the FLA arguably eschews strict formal equality.
Monday, January 11, 2016
I've posted Chapter 1 of my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, forthcoming this summer from NYU Press. This chapter introduces Stanton, her legacy for the law and domestic relations, and her holistic legal feminism. See The "Radical Conscience" of Nineteenth-Century Feminism.
Thursday, December 31, 2015
In 2015, something that rarely happens happened. The Supreme Court, the United States Congress, and state legislatures all started to get on the same page. Fairness for pregnant workers was what brought them all together. Despite the many diverse views these institutions represent, they agreed that ensuring pregnant workers’ health and economic security is paramount. Here are 2015’s top highlights in the fight for fairness for pregnant workers.
Friday, December 11, 2015
Five women are suing the government of Japan over a law requiring spouses to adopt the same surname.
“By losing your surname ... you’re being made light of, you’re not respected ... It’s as if part of your self vanishes,” said Kaori Oguni, a translator and one of the five women involved in the lawsuit.
A decision by the supreme court, due on 16 December, coincides with prime minister Shinzo Abe’s push to draw more women into a shrinking workforce. Despite that, many in his conservative ruling party are opposed to any legal change.
An 1896 law says spouses must adopt the same surname to legally register their marriage. The law does not specify which one, but in practice, 96% of women take their husband’s name, a reflection of Japan’s male-dominated society.
Conservatives say allowing couples to choose whether they share the same surname or not could damage family ties and threaten society.
“Names are the best way to bind families,” Masaomi Takanori, a constitutional scholar, told NHK public television.
“Allowing different surnames risks destroying social stability, the maintenance of public order and the basis for social welfare.”
H/T Joanna Grossman
Wednesday, December 2, 2015
Allison Tait (Richmond), Divorce Equality, 90 Wash. Law Review (2015)
Abstract:The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.
Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself.
Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.
Tuesday, November 24, 2015
Serena Mayeri (Penn), Marriage (In)equality and the Historical Legacies of Feminism, 6 Cal. Law Rev. Cir. (2015):
Abstract:In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage.Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.
Sunday, November 15, 2015
Under fire from critics including gay rights activists and the state’s Republican governor, a judge in Utah on Friday reversed, at least temporarily, his order that a foster child be taken away from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.”
While the child may remain with the couple for the moment, Judge Scott N. Johansen signaled that the matter might not be settled. He continued to question the placement of children with same-sex parents, a matter that will be taken up at a Dec. 4 hearing on what is in the best interests of this child, a 9-month-old girl.
The judge’s actions, coming after the Supreme Court this year established a right to same-sex marriage, put him at the center of another front in the nation’s legal and culture wars: the question of whether gay men and women can get, and keep, custody of children under various circumstances.
Sunday, November 1, 2015
A court has granted a divorce to a man who was responsible for the breakup of his marriage by cheating on his wife, overturning the lower court's ruling.
It is the first court decision that allowed a divorce sought by a cheating spouse after the Supreme Court's ruling in September that expanded the grounds for divorce in limited cases, although it largely upheld the legal principle that bans a party responsible for destroying the marriage from filing for divorce.
Following the ruling, similar divorce requests are expected from estranged couples who have been barely maintaining a paper-only marriage relationship.
Thursday, October 29, 2015
Stephanie Hunter McMahon (Cincinnati) has posted Gendering the Marriage Penalty, in Controversies in Tax Law (Ashgate 2015):
In 1969 Congress amended the Internal Revenue Code to create a marriage penalty. The penalty was not felt by all married couples: Only those couples in which spouses earned roughly equal amounts and who filed joint tax returns paid a penalty. Thus, the 1969 change in law had a gendered effect of discouraging some wives from earning income, but the alternative was not without its own gendered results. If gender marks the impact of the 1969 legislation, was gender what motived the change in law? It would be easy to assume that at the end of the 1960s, a socially conservative legislature reacted to a developing women’s movement. From the legislative debates, sexism certainly pervaded congressional discussion of women’s role in the family and the economy. However, this only tells part of the story and does so by focusing on the result that remains of interest today. Economic forces were a larger part of the story. The context of the 1969 revision shows it as part of an economic movement evolving since the end of World War II as policymakers adopted tax legislation in an attempt to improve the economy and fight the Cold War. Not only policymakers in Washington but also many women’s groups shared this focus on national economics. The focus on economic issues resulted in a lack of analysis of how this change in tax policy would affect various groups of women. The development of the marriage penalty highlights the need to consider the consequences of legislation prior to its enactment. In this case, particular concerns (largely economic) drove legislation that imposed most of its cost on a segment of society that was not focused on this issue.
Tuesday, October 20, 2015
The second part of the chapter proceeds to articulate a relational approach to children’s subjectivity. Building on the work of Martha Minow, this approach highlights children’s experiences as active participants in multiple relationships directly and indirectly mediated by law. Children’s relationships are not confined to the family, nor do they solely involve hierarchal dynamics of development and control. Children instead experience a broad range of interactions as children, separate from or in addition to their interests in becoming adults, even as they remain dependent on adults for many aspects of their lives. Children’s relationships therefore blur the traditional distinction between subjects and objects, providing a foundation for law to acknowledge and foster children’s intrinsic interests as children.
Friday, August 28, 2015
In his January State of the Union address, President Obama became the first president to utter the word “transgender” in a speech, confirming what many are calling America’s “transgender moment.”
Not only is the word itself now part of common speech, transgender characters and personalities are everywhere in popular culture. From Caitlyn Jenner to Laverne Cox and Andreja Pejic, the omnipresence of transgender people in the media has brought visibility—and a needed measure of comfort—to those whose gender identities don’t neatly jibe with their sex at birth. Social media outlets have rushed to keep up. This year Facebook went from giving users a choice of 58 separate gender identities, including “pangender” and “transmasculine,” to letting users designate any “free-form” gender descriptions they wish.
The law has also been moving to protect transgender people from harassment anddiscrimination in employment and housing, while Medicare now covers “gender-confirming” medical procedures for seniors. California recently became the first state to foot the sex reassignment surgery bill for a transgender prison inmate, Shiloh Quine. While it’s too soon to gauge the extent of the Supreme Court’s recent gay marriage decision on transgender marital rights, the process toward full transgender rights is well underway.