Monday, January 9, 2017
Sarah Boonin, Ten Years Too Long: Reforming Social Security's Marriage Duration Requirement in Cases of Domestic Violence, 39 Harv. J. Gender & Law 369 (2016)
Abstract:Social Security's retirement program has evolved over time to become a major source of economic security in older age for workers' family members, including spouses and ex-spouses. To qualify for derivative retirement benefits as an ex-spouse, the applicant must have been married to the wage earner for at least ten years. This Article explores in-depth this so-called "ten-year rule" and critiques its application in cases involving domestic violence. Drawing on a gut-wrenching case study, the rule's legislative history, as well as social science and feminist literature on the impacts of domestic violence, this piece argues that the ten-year rule unfairly punishes and imperils victims of domestic violence. It serves as the final blow, felt long after the abuse has ended. The Article proposes and defends an amendment to the Social Security Act that would extend vital retirement benefits to victims divorced from shorter-term marriages.
Thursday, December 22, 2016
I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).
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)
Friday, December 16, 2016
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.
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.
Wednesday, December 14, 2016
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.
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.
Thursday, December 8, 2016
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.
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]
[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, .
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.
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, 
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.
Tuesday, November 29, 2016
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]
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
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.
Friday, November 4, 2016
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.” 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. 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.
Friday, October 28, 2016
This was the topic of a paper recently published in Akron Law's open-access constitutional law journal, ConLawNOW, by our visiting scholar from Japan.
Wednesday, October 12, 2016
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.
Thursday, September 29, 2016
Book Review: Harris on Sager, Marital Cruelty in Antebellum America, reviewing the book Robin C. Sager, Marital Cruelty in Antebellum America (Lousiana State University Press 2016)
In literature and the popular press, antebellum women were lauded for their virtue and piety; they maintained the sanctity of the home and were responsible for the moral training of the next generation. Yet, many homes were not idyllic sites of domestic tranquility. In Marital Cruelty in Antebellum America, Robin C. Sager uncovers the fascinating and disturbing account of “those spouses who were simply trying not to kill one another” (p. 12). Through an analysis of 1,500 divorce cases in Virginia, Texas, and Wisconsin, Sager chronicles the meanings and cultural significance of marital cruelty in the years 1840-60. Sager contends that regional scholarship has tended to label the South as particularly violent, connecting that violence to norms of Southern honor. To interrogate these assumptions, the author analyzes Virginia (often considered the archetypal Southern state), Texas (a frontier Southern state), and Wisconsin (a frontier state in the process of settlement). Sager finds that the cultural uncertainty of frontier Wisconsin perpetuated violent domestic cruelty, while greater stability of gender norms in Virginia and Texas mitigated violence in marriage.
Marital Cruelty is organized around types of cruelty: verbal, physical, sexual, and negligence. Within each chapter Sager compares divorce cases from Virginia, Texas, and Wisconsin. In the chapter on physical cruelty, for example, Sager identifies a fixation on the exact nature of the violence in each state’s attempt to determine the line between permissible violence and marital cruelty. Courts would attempt to determine the exact number of blows, the type of violence, and the emotional valences behind the violence. While there was no universal standard for what constituted cruelty, violence that reinforced gendered familial duty was more likely to be considered legitimate. As such, whipping tended to be more acceptable than punching, and the seemingly rational administration of violence was more acceptable than emotional or animalistic violence. Sager also identifies significant regional differences in physical violence, explaining that the unsettled frontier of Wisconsin led to “more permanent injuries and generalized brutality within marriages than can be seen in either Virginia or Texas for the period” (p. 39). This chapter is also notable because it includes instances of wives' cruelty toward their husbands, a particularly egregious violation of gender expectations. * * *
The unrelenting litany of domestic violence can be challenging to read, but the attention to regional difference and lower court marriage law makes the study valuable to researchers. While state and federal appeals and Supreme Court decisions from the antebellum era are more likely to be accessible, documents from lower-level divorce cases can be difficult to find. The vast majority of citizens seeking a divorce would have had their case only heard before a lower-level court, such as a circuit, district, or chancery court, and Sager’s meticulous research provides unique insight into the ways in which Americans used the state to negotiate marital conflict. However, as the author notes, not all Americans had equal access to the law, and Sager acknowledges that the choice to study divorce cases may obfuscate questions of race and class.
Tuesday, September 20, 2016
“Sister Wives” TV star Kody Brown is taking his case to Washington, as his attorneys have filed a last-ditch Supreme Court appeal in Brown’s “plural family” case.
George Washington University law professor Jonathan Turley filed a request for the high court to take Brown’s appeal. Since 2010, Brown and his four “Sister Wives” have starred in a reality show on the TLC network that documents their lifestyle in Utah and Nevada.
Brown has been in court trying to determine if there is a constitutional right to his plural family lifestyle. Brown is legally married to one woman and also “spiritually married” to three other women at the same time. Two years ago, Brown and his attorneys won a significant victory in a federal court in Utah.
Before that in 2011, Brown sued the state of Utah after episodes of “Sister Wives” were shown on TLC, and Utah County Attorney Jeff Buhman threatened to prosecute Brown under the state’s anti-polygamy laws. Brown and his family moved to Nevada in reaction to the threat from Buhman. Then, Buhman adopted policies that would exempt the Brown family from the Utah law.
A federal judge, Clark Waddoups, handed Brown’s cause a big victory when he struck down part of a Utah state law making it a crime to “cohabit with another person” if the partners weren’t legally married to each other. The state of Utah then appealed the decision to the U.S. Court of Appeals for the Tenth Circuit, which overturned the decision made by Waddoups. A three-judge federal appeals court panel ruled the case as “moot,” since Brown didn’t face prosecution from Utah County.
After failing to get the full Tenth Circuit bench to hear Brown’s appeal, Turley filed paperwork with the U.S. Supreme Court on Monday, arguing that the case was about Brown’s constitutional rights.
Wednesday, August 31, 2016
If bitter fights over dirty dishes feel like the gender wars, or you’ve found yourself ranting about The Second Shift, a new study from Indiana University suggests you’re onto something. For most Americans, the survey study found, chore roles align with traditional thinking on masculinity and femininity ― even among couples where a woman is the primary or sole breadwinner and even in same-sex couples.
The researchers were surprised by how much gender mattered ― and how little income did.
“Most research on housework suggests that couples divide housework along different axes; for example, lower-earning partners do more housework than higher-earning partners,” said lead author Natasha Quadlin, a doctoral student at Indiana University. “Instead, our findings suggest that [gender] is by far the biggest determinant of Americans’ attitudes toward housework.”
Gender matters more than income
Participants assigned straight women more female-typed chores, more gender-neutral chores and more physical and emotional caregiving than their partners. This held true even if the woman earned more money than the man.
While relative income determined whether or not the husband or the wife would become the stay-at-home caregiver, Quadlin pointed out that low-earning men in straight relationships were still expected to do fewer chores and fewer childcare tasks than their wives.
But even though gender mattered most, Quadlin found that participants gave primary responsibility for cooking, cleaning, laundry and dishes, as well as being a primary caregiver for a child, to lower-earning partners, while expecting the higher- wage earners to manage the household finances. Income didn’t have any bearing on groceries, car maintenance or outdoor chores. However, the effects of relative income were minor — for instance, low-wage earners were given responsibility for cooking 55 percent of the time, versus 45 percent for higher earners.
Friday, August 5, 2016
Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India (U. Cal. Press 2015) (with podcast):
Are solutions to marital problems always best solved through legal means? Should alternative dispute resolutions be celebrated? In her latest book The Trouble with Marriage: Feminists Confront Law and Violence in India (University of California Press, 2015) Srimati Basu answers such questions and many more through explorations of "lawyer free" courts and questions surrounding understandings of domestic violence, analyses of the way rape intersects with marriage and how kinship systems change with legal disputes and by delineating the most important acts that frame marriage law in India. Theoretically and politically astute the book offers an ethnographic insight into legal sites of marriage trouble in India.
Friday, July 29, 2016
On June 1, 2016, Gov. Hickenlooper signed into law Colorado House Bill 16-1438, requiring employers to provide reasonable accommodations for pregnant and post-partum employees (specifically, for applicants or employees with “health conditions related to pregnancy, the physical recovery from childbirth, or related conditions”). Employers who fail to do so may assert the affirmative defense of undue hardship. The amendments will become effective Aug. 10, 2016. Critically, there are posting and notification requirements. Starting Aug. 10, 2016, employers are required to provide notice to new employees, and by Dec. 8, 2016, notice to existing employees. Conspicuous notice must also be posted. . . .
[T]he General Assembly’s overarching policy goal is to provide pregnant and post-partum women workplace protections to ensure they can remain gainfully employed by ensuring: “full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.” To that end, the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-401, et seq., was amended to prohibit an employer from discriminating against employees and applicants who have health conditions related to pregnancy, the physical recovery from childbirth, or related conditions. Specifically, employers must:
- provide reasonable accommodations unless that would cause undue hardships on the employer’s business;
- not take adverse actions against employees who request or use a reasonable accommodation;
- hire applicants despite the need to make a reasonable accommodation;
- not require an applicant or employee to accept an accommodation that the employee did not require or that is not necessary to perform the essential job functions; and
- not require leave if the employer can provide another reasonable accommodation.
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.