Tuesday, March 24, 2015
Legal History Blog, Dinner and Divorce and the Fathers' Rights Movement. Deborah Dinner's (Wash U) latest piece. From the abstract:
A vast literature documents the history of the women’s and gay liberation movements in the late twentieth century, but we still know little about how heterosexual men navigated dramatic change in the legal regulation of families. This Article provides the first legal history of the fathers’ rights movement. It analyzes how middle-class white men responded to rising divorce rates by pursuing reform in both family law and welfare policy. This history offers novel insight into the relationship between the private law of divorce, which regulates largely middle-class families, and public welfare state policies, which have the greatest effect on poor families. This Article challenges the assumption that these private and public family law systems operate in parallel, showing instead that they are interdependent.
Through the mid-twentieth century, marriage shaped the relationship not only between men and women but also between middle-class men and the state: men supported children and wives in exchange for legal protection of male familial authority. In the 1960s and 1970s, escalating divorce rates and the emergence of no-fault divorce laws upset this balance. By the mid-1980s, activists and federal and state legislators forged a new political compromise: fathers’ rights activists conceded ongoing child support obligations in exchange for greater access to custody upon divorce. This “divorce bargain” catalyzed a shift from common law presumptions favoring maternal custody to statutory recognition of joint custody. In so doing, it reinforced private rather than public responsibility for children living in nonmarital families.
The divorce bargain promoted formal equality and sex neutrality within private family law, but also entrenched gender and class inequalities. The bargain failed to challenge women’s disproportionate responsibility for childrearing within marriage, yet enabled men to use custody rights as leverage in child support and spousal maintenance negotiations. In addition, tying paternal responsibilities to custody rights advanced middle-class men’s caregiving interests but hurt those of low-income fathers who could not afford to pay child support. The state vilified these men as “deadbeat dads” who did not merit legal protection. The history of fathers’ rights advocacy for the divorce bargain, therefore, reminds us not to confuse liberalism with equality.
Keith Cunningham-Parmeter (Willamette), (Un)equal Protection: Why Gender Equality Depends on Discrimination, 109 Northwestern Law Review 1 (2015).
From the abstract:
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader anti-subordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular discriminatory policy that could dramatically promote gender equality in the decades to come. Fatherhood bonuses — laws that give families additional parental leave when fathers stay at home with their newborns — have the potential to drastically reorder gendered divisions of labor and expand women’s workplace opportunities. Countries that have experimented with fatherhood bonuses have seen women with children spend more time in paid work, advance in their careers, and earn higher wages. Applying these international models to the American context, this Article explains why fatherhood bonuses would fit comfortably within our constitutional framework, which authorizes discriminatory policies when such policies support women’s public participation. (Un)Equal Protection concludes by proposing a model for fatherhood bonuses in the United States that would encourage more men to perform care work, thereby advancing the goal of gender equality for both sexes.
Friday, March 20, 2015
While the legal wrestling continues over gay marriage, lawyers for Gov. Robert Bentley told the U.S. Supreme Court that same-sex marriage is a social experiment that undermines the rights of children.
The governor filed a friend of the court brief Tuesday ahead of April arguments regarding gay marriage.
Bentley's lawyers said marriage is a natural reality and that same-sex marriage destroys the "rights of children to be connected to their biological parents."
Alabama made similar arguments in a Mobile court case that ended with a federal judge declaring the state's gay marriage ban unconstitutional. The Alabama Supreme Court on March 3 ordered probate judges to stop giving marriage licenses to gay couples.
Friday, March 13, 2015
The single most disturbing story coming out of the media and sports world last week was the horrific online abuse levied at Gabby Schilling, daughter of former Red Sox pitcher, Curt Schilling.
The story was first reported by Schilling on his 38 Pitches Blog.
Curt's daughter Gabby is also a pitcher, and they found out last week that she was accepted to Salve Regina University, where she will play softball.
Proud father Curt, who is active on social media and particularly on Twitter (@gehrig38) posted a Tweet that read "Congrats to Gabby Schilling who will pitch for the Salve Regina Seahawks next year!!"
But trolls started to attack Schilling:
I post those Tweets here not to be sensationalistic, but because they have to be seen to understand how deeply and viscerally disturbing they are.
Wednesday, March 11, 2015
An Irish Catholic bishop said on Monday that homosexuality — like Down’s syndrome or spina bifida — was not part of God’s plan, and that same-sex couples with children were “not necessarily parents.” In an interview with the NewsTalk Breakfast radio program, Elphin Bishop Kevin Doran argued that voters should reject an upcoming referendum to legalize same-sex marriage because LGBT couples could not procreate.
Hear the interview here (scroll down to bottom).
Tuesday, March 10, 2015
I'm working on a final chapter of a book on 19th century feminism and family law. In concluding and drawing some parallels to modern times, I find myself searching for better words to use for the "stay-at-home" mom.
The 1950s term is mostly "housewife." Slate suggested we should reclaim the term "homemaker."
What other terms have been used over time?
What other terms could we be using? "Domestic goddess" seems popular on Facebook. "Domestic engineer"? It seems there must be better terminology to both describe and respect this role.
Thursday, March 5, 2015
You can come, but you can't leave.
A unanimous jury found Korean immigrant detainee and domestic violence survivor Nan-Hui Jo guilty Tuesday of child abduction charges filed by her child’s father and alleged abuser, Jesse Charlton. Now, Nan-Hui is also facing deportation and permanent separation from her child immediately after the hearing.
Nan-Hui Jo fled the U.S. to South Korea in 2009 with her then one-year-old daughter Vitz Da (known as Hwi) to escape abuse by Vitz Da’s American father Charlton, an unstable Iraq war veteran diagnosed with PTSD. For years, Nan-Hui raised her daughter in Korea during which time Charlton, unbeknownst to Nan-Hui, filed child abduction charges against her. When Nan-Hui traveled to Hawaii last summer to consider schools for the American-born Hwi and perhaps re-connect her daughter with Charlton if it was safe, she was immediately arrested and sent to jail.
On Friday, a federal court temporarily halted the Obama administration’s policy of detaining migrant mothers with children seeking asylum in the United States.
The American Civil Liberties Union (ACLU) filed a lawsuit in December alleging that the Department of Homeland Security (DHS) locked up women with children who were seeking asylum under their new “no release” policy, often inprison-like conditions for months at a time. The policy was adopted as part of the Obama administration’s “aggressive deterrence strategy” in response to the influx of Latin American migrants who crossed the southern border last year, as a way to deter future migrants from making the trek. The ACLU stated that in years past, detainees who were able to express “credible fear” that they would be persecuted in their homelands were released on bond or on their own recognizance.
Friday, February 27, 2015
The South Korean Constitutional Court recently held that prohibitions against adultery were unconstitutional. From the NYT:
South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.
By contrast, the U.S. Supreme Court has so far refused to make an analogous statement. Check out the Mother Jones article (a bit outdated, though) .
A counter to the perspective expressed in the previous post, there's the HRC case against conversion therapy:
Research shows that young people experience conversion therapy as a form of family rejection, and LGBT youth who experience family rejection face increased health risks. In one study, such youth were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, and 3.4 times more likely to use illegal drugs compared with peers who had not experienced such rejection. On the other hand, family acceptance has been shown to be an important protective factor that can help to prevent suicide behavior and mental health issues. Providers who engage in conversion therapy under the veneer of state license can mislead families about the risks involved, leading to negative psychological outcomes and irreparable damage to family cohesiveness. This legislation is needed to protect families from these damaging practices.
OKLAHOMA CITY — A bill guaranteeing the right of parents to seek therapy for “same-sex attraction” for their minor children cleared the Oklahoma House of Representatives Committee on Children, Youth and Family Services on Tuesday.
House Bill 1598 author Sally Kern, R-Oklahoma City, turned aside a question about whether such therapies might “push” young people toward self-destructive behavior.
“In our schools, in our movies, the kids are being pushed in the direction that they’re born homosexual and they can’t change,” Kern said. “This bill will allow children who are struggling with these feelings … to go and have some counseling to get both sides of the issue to find out why they’re struggling with this.”
Kern agreed that nothing currently in state law prevents parents from sending their children to such counseling, but she said HB 1598 is a “pre-emptive” measure against legislation banning so-called “conversion therapy.”
Thursday, February 12, 2015
Galen Sherwin, ACLU Women's Rights Project, Would You Like Some (More) Sexism With That?
There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.
In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.***
"Just Go Home And Be With Your Babies"
The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."
It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.
In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."
Waiting Three Days to Pump – Not Intolerable?
The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."
Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection.
A few thoughts:
1. Sherwin says: "As Amanda Marcotte wrote on Slate, 'The fact that the original court latched onto [nursing humor] such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling.'" This is really the crux of the problem. The courts still just don't get it.
2. The US Supreme Court in Cleveland Board of Education v. LaFleur, encountered in 1973 a similar remark from a supervisor for a woman to just "go home and have your babies." There, the court found it to be sex discrimination, though in a roundabout procedural due process kind of way by imposing mandatory maternity leaves on teachers from the 4th month of pregnancy until one year after the birth of their child, with no right to reinstatement. Had the Court ruled on equal protection grounds of sex discrimination, as argued by the plaintiff, perhaps we wouldn't still be hearing the same thing happening in workplaces 42 years later.
Thursday, January 29, 2015
....there are two problems with what President Obama said about paid parental leave in his State of the Union: First, he called it “maternity leave.” And, second, that statement quoted above is all he said.
In the press release from last week, “parental leave” was the chosen phrase. Critically, it was gender-neutral. As President Obama said tonight, "it’s time we stop treating childcare as a side issue, or a women’s issue.” And as the CAP report points out, parental leave isn’t a women’s issue either, “men increasingly want to be caregivers.” It also clarifies, “As family demographics shift, parents of young children are not the only types of workers with significant caregiving responsibilities.” Specifically, the report is referring to the realities of “care for elders” and “same-sex families,” where maternity leave would not apply even if it were guaranteed.
And President Obama should have said more. He could have brought up that men do increasingly want to be caregivers, that paid parental leave should be given equally to men and women, that paid parental leave could have important economic benefits, like reducing employee turn over when men and women seek to change jobs to have children, that paid parental leave isn’t something that only elite workers have earned.
President Obama’s announcement last week may have been a wonderful surprise to federal workers and their families, and even to Americans everywhere eager to see universal paid parental leave become a reality. But the announcement set high expectations for what else President Obama could have said on the topic tonight. A one-liner about “maternity leave,” left us all hanging.
How did that happen? It started during the Great Depression as "a source of 'fiscal stimulus,' if you will," says Arizona State University's Chris Herbst, an associate professor in the school of public affairs.
The Works Project Administration first ran the day cares. The idea was to employ teachers and to also watch kids so that their unemployed parents could look for jobs. When women replaced deployed soldiers in the domestic workforce during World War II, the government funded a major expansion.
That all ended with the war, and though in the early 1970s Congress approved a similar program, Herbst says aides convinced President Nixon to veto it.
Tuesday, January 27, 2015
From the New Yorker: America's Family-Leave Disgrace
What do Papua New Guinea, Oman, and the United States of America have in common? They are the only three countries in the world with no paid-maternity-leave law. When you point out the deficiencies of the United States in this regard, somebody often replies, “This isn’t Scandinavia; we can’t impose cuddly capitalism”—the M.I.T. economist Daron Acemoglu’s phrase—“and still enjoy economic growth.” Granted, we’re not Sweden, but neither are we Romania, Uganda, Bolivia, or any of the hundred and eighty-five other countries that, according to a 2014 report from the U.N.’s Institute of Labor, provide their citizens with paid leave to care for a new child. Ninety-eight of those countries offer paid leave for fourteen weeks or more. In his State of the Union address on Tuesday, President Barack Obama vowed to make family leave and sick days a priority in the final two years of his Presidency. He has work to do. In the United States, where all sorts of powers are commonly attributed to the private sector, many people might imagine that employers take up the slack. But the majority of U.S. employers do not offer paid family leave, for the simple reason that they don’t have to.
Saturday, January 24, 2015
The majority of young women and men today would prefer an egalitarian relationship in which work and family responsibilities are shared equally between partners if that possibility were available to them, according to a new study from the University of Texas at Austin and the University of California-Santa Barbara.
The study finds that when the option is made available to them, the majority of respondents -- regardless of gender or education level -- opt for a relationship in which they would share earning and household/caregiving responsibilities equally with their partner. Additionally, the study finds that if workplace policies that support work-family balance, such as subsidized child care, are in place, women are even more likely to prefer an egalitarian relationship and much less likely to want to be the primary homemaker or caregiver.
Thursday, December 18, 2014
Told there was no procedure for appealing a decision by Illinois bar exam authorities not to provide stop-the-clock breaks when she needed to pump breast milk, Kristin Pagano nonetheless wrote a letter requesting reconsideration.
On Tuesday, that request was unanimously granted by the Illinois Board of Admissions to the Bar. Pagano will be allowed to take a break of up to 30 minutes during each three-hour segment of the test, which will not be counted against the time she is given to complete the bar exam, reports the Chicago Tribune. A female proctor and access to an appropriate area in which to pump breast milk will also be provided.
Hear Kristin speak about it here, Kristin Pagano Speaks: Breastfeeding Accommodations and the Illinois Bar Exam
Wednesday, December 17, 2014
Stewart Chang, Whittier Law, has uploaded Dreams of My Father, Prison for My Mother: The H-4 Nonimmigrant Visa Dilemma and the Need for an "Immigration-Status Spousal Support." The abstract reads:
This article uses the situation of H-4 visa derivatives in the Asian Indian immigrant community as a case study to expose and critique larger incongruities within current American immigration policy, which on the one hand has historically extolled individuality, equality, and workforce participation as avenues to the American Dream, while enforcing gender hierarchy and dependency through requirements that prioritize family unity on the other. These incongruities remain largely unnoticed because the culture of dependency is often attributed to traditional ethnic culture, which then becomes the site of scrutiny and blame. The H-4 visa dilemma in the Asian Indian community illustrates how the legal restrictions stipulated in immigration law often produce and perpetuate recursions of ‘traditional culture’ within immigrant American families that ultimately consign Asian Indian women to perpetually occupy the place of the foreign ‘Other’ in American society. The ‘Othering’ of the ethnic alien culture perpetuates the illusion that America is not patriarchal in comparison, which concurrently promotes the idea that the foreign culture is inferior, behind, and incompatible. This constructed inferiority further forecloses these women from other avenues of justice in America, such as family law, which is similarly configured as to be culturally incompatible with the dependent immigrant subject. Thus, these women of- ten voluntarily choose to exclude themselves from the process, as did many of my Asian Indian clients. These are the assumptions and hierarchies regarding the mythos of independence in American identity that this article seeks to overcome, which then open avenues for some nonconventional solutions.
Friday, December 5, 2014
Helen Alvare at George Mason Law has uploaded "Same-Sex Marriage and the Reconceiving of 'Children.'" (It's a conservative perspective but I, for one, am in favor of reading contrary views.) The abstract:
Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults’ interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults’ rights to same-sex marriage.
This Article discusses the importance of states’ interests in procreation and child rearing and the Supreme Court’s constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or “reconceived,” the role of children in marriage, in several important ways, all to the marked disadvantage of children.
Thursday, December 4, 2014
A Colorado mother claims in a federal lawsuit that she was fired from her hairstylist job after she sought to take periodic work breaks to pump breast milk but was rebuffed by an employer who called the idea "gross," court documents showed on Tuesday.
Ashley Provino of Grand Junction said she asked permission from her employer, Big League Haircuts, to take breaks every four hours to pump breast milk for her infant son, according to a complaint filed on Monday in U.S. District Court in Denver by lawyers with the American Civil Liberties Union of Colorado.
Provino said the owner, Kyle Reed, “adamantly refused” her request, called the topic “gross,” retaliated by cutting her hours so she never worked more than four hours at a time, and ultimately fired her.
“Discrimination against breastfeeding mothers in the workplace is not only illegal, it is also bad for Colorado families and businesses, because it forces women out of the workplace,” ACLU cooperating attorney Paula Greisen said in a statement.
Reached by telephone, Reed said the lawsuit was “total fiction” and vowed to fight Provino's claims.
“She has dollar signs in her eyes and thinks she's going to win a million dollars,” he said.
Monday, November 17, 2014
“The phone call. The phone call," sighed Allison Strange. "There’s always that one call that you never expect to get.”
On Sept. 6, 2011, the caller ID showed her son's cell phone, but the voice on the other end wasn't Josh. Her son had been arrested for rape.
Josh Strange avoided prosecution, but he did face the justice of Auburn University, where he was a sophomore. Under federal civil rights law, colleges and universities have to conduct their own investigations into sexual assault reports, separate from a criminal one. And after a 99-minute hearing, the discipline committee – chaired by a university librarian – reached its decision.
“Josh was as white as a piece of notebook paper, and just looked like he had been punched in the stomach,” remembered Allison Strange, who was outside the hearing room. “I walked up and I looked, and Josh said, ‘Mom, I’m gone. They don’t want me here anymore. I can’t stay. They’ve expelled me.’”
In the aftermath, Allison and Josh Strange formed the group Families Advocating for Campus Equality that pushes for universities to get out of the business of adjudicating sexual assault cases. Allison Strange wants those cases to be left to the criminal justice system, and she says you only need to look at her son's case to understand why.