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.
Saturday, August 22, 2015
A former instructor at a Christian university in Oregon is taking the school to court after it allegedly fired her for planning to have a baby out of wedlock.
Coty Richardson was working as an exercise science teacher at Northwest Christian University in Eugene, Ore., when she notified school officials that she was due to give birth in November and wanted to know if her maternity leave would create scheduling conflicts.
She claims in a lawsuit filed in state court on Tuesday that the school’s administration told her that her lifestyle was inconsistent with the university’s “faith-based standards.” She was given a choice: If she wanted to keep her job, she would either have to break up with the father or marry him.
Ms. Richardson, who is 35, said in her complaint she was “mortified and crushed” by the ultimatum and “refused to cut ties with the father of her child and her partner of twelve years.”
In July, according to her lawsuit, a school official told her she had a week to make her decision. Days later she told administrators she didn’t want to discuss her personal life. And on July 28, she says, she learned that she had lost her job.
Her lawsuit, which seeks $600,000 in legal damages, accuses Northwest Christian of pregnancy, sex and marital status discrimination, along with wrongful termination and breach of contract.
Tuesday, August 11, 2015
The AALS Section on Trusts and Estates and AALS Section on Women in Legal Education will hold a joint program, Sex and Death: Gender and Sexuality Matters in Trusts and Estates, during the AALS 2016 Annual Meeting in New York City. They are soliciting proposals for presentations between now and August 21. From the CFP:
Submissions should be of an abstract of scholarship relating to the overlap between sex, gender, or sexuality and trusts and estates. Potential topics include implications of same-sex marriage, assisted reproduction and property rights, feminist legal theory applied to property transmission or tax, or any other matter examining the intersection between sex and death. Abstracts should be between 750 and 2000 words, inclusive of any footnotes. Scholarship may be at any stage of the publication process from work-in-progress to completed article, but if already published, scholarship may not be published any earlier than 2014. Each professor may submit only one abstract for consideration.
Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible. The deadline for submission is Friday, August 21, 2015.
To be considered, abstracts must be submitted electronically to Professor Wendy Greene, Samford University’s Cumberland School of Law, email@example.com<mailto:firstname.lastname@example.org> and Professor Alyssa DiRusso, Samford University’s Cumberland School of Law, at email@example.com<mailto:firstname.lastname@example.org>. The deadline for submission is Friday, August 21, 2015. Authors of selected papers will be notified by September 25, 2015. Call for Paper participants will also be responsible for paying their annual meeting registration fee and travel expenses.
Presenters will be selected after review by the Program Chairs of both sections. Additional presenters may be solicited by the Program Chairs to insure a diverse panel. Any inquiries about the Call for Papers should be submitted to: the Chair for the Section on Women in Legal Education, Professor Wendy Greene, Samford University’s Cumberland School of Law, 205.726.2419 or email@example.com and/or the Program Chair for the Section on Trusts and Estates, Professor Alyssa DiRusso, Samford University’s Cumberland School of Law, 205.726.4325 or firstname.lastname@example.org.
Friday, July 31, 2015
Young men today have aspirations of being hands-on fathers as well as breadwinners — supportive husbands who also do dishes.
But as they enter that more responsibility-filled stage of life, something changes: Their roles often become much more traditional.
Millennial men — ages 18 to early 30s — have much more egalitarian attitudes about family, career and gender roles inside marriage than generations before them, according to a variety of research by social scientists. Yet they struggle to achieve their goals once they start families, researchers say. Some researchers think that’s because workplace policies have not caught up to changing expectations at home.
Wednesday, July 29, 2015
Unfortunate that I had missed this story earlier this month:
A U.S. law that treats mothers and fathers differently in determining whether their foreign-born children may claim U.S. citizenship is unconstitutional, a federal appeals court ruled on Wednesday, four years after the U.S. Supreme Court split 4-4 on the issue.
The 2nd U.S. Circuit Court of Appeals in New York said the statute applied "impermissible stereotyping" in imposing a tougher burden on fathers.
The law requires unwed fathers who are U.S. citizens to spend at least five years living in the United States - a 2012 amendment reduced it from 10 years - before they can confer citizenship onto a child born abroad, out of wedlock and to a partner who is not a U.S. citizen. For unwed U.S. mothers in the same situation, the requirement is only one year.
Wednesday's ruling is likely to have a limited effect in terms of the number of people it applies to, but the decision addresses important principles regarding laws that explicitly treat the sexes differently, legal advocates said.
**the story continues here.
Tuesday, July 28, 2015
In case you needed a reminder about the power of law to individuals' lives, here's the story of my colleague after Obergefell.
Nancy Reeves acknowledged there aren’t many “tangible benefits” to adoption at this point, but it’s not any less meaningful.
“We have always been a family. We have always known it, and everyone who matters to us on a personal level has always treated us as a family,” she said.
“That said, when society tells you that you’re not a real family, when ‘family values’ expressly devalues your family, it is almost indescribable to finally have our 34-year marriage, and Lynn’s 25-year relationship with Emma legally recognized. It is as if a weight I didn’t even know I was carrying has been lifted off my shoulders,” Reeves said.
Monday, July 27, 2015
The headline is from a New Republic article, whose contents read in part:
Young women have no illusions about how hard it is to be a working mother in America. The New York Times highlights recent evidence that millenial women are less likely than prior generations to expect careers equal to their husbands.
The rest of the world continues to treat mothers better: India’s high court ruled that mothers who use surrogates are entitled to maternity leave. Meanwhile, Ireland’s government is considering extending its paid parental leave policy from six months to one year, which can be shared by both parents.
IBM introduces Uber for breast milk: Nursing mothers who work for IBM will now be able to use an app to ship their breast milk back home while travelling for business.
Day care can now cost more than college tuition. Working parents can expect to pay an average of $11,000 a year for a spot at an infant day care center ($16,549 if you’re unlucky enough to live in Massachusetts), more than average tuition at a four-year public college.
The art of inequality: An art gallery in New York is exhibiting a mural-sized infographic by Portugese painter Rigo 23 depicting the last eight countries on earth without mandated paid maternity leave—the U.S. is right in between Tonga and Nauru.
Tuesday, July 21, 2015
Rona Kitchen (Duquesne), Constrained Choice: Mothers, The State, and Domestic Violence, Temple Political & Civil Rights L.J. (2015).
Abstract:Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers respond to abuse in unsanctioned manners, such as by staying in abusive relationships, they face similarly hostile consequences including continued abuse, the loss of their children, and criminal prosecution. Thus, regardless of how mothers respond to domestic violence, they risk being harmed by their abuser and the state. As a result battered mothers’ choices are significantly constrained.
Though the legal response to domestic violence has improved dramatically over the past few decades, reforms are still needed. The state should sanction a broader range of maternal responses to domestic violence and accept greater responsibility for preventing and responding to private family violence. In addition to increasing victim safety, implementation of these reforms would increase respect for maternal autonomy and demonstrate the state’s true commitment to protecting women and children from domestic violence.
Tuesday, July 14, 2015
Tracy Thomas, associate dean of The University of Akron School of Law said she believes that Kennedy’s opinion answered Roberts’s objections. In particular, she praised Kennedy for going beyond Loving to examine other right-to-marry cases, particularly Zablocki.
“Zablocki is key,” she said. “It’s an underrated case” in that the law at issue does not absolutely prohibit marriage, places conditions on the timing of the plaintiff’s marriage.
Thomas said Zablocki also considers due process and equal protection claims in tandem as Kennedy does in the decision.
Thomas, who teaches family law and directs the Constitutional Law Center at the School of Law, faulted Roberts for his characterization of Loving. Contrary to Roberts’s characterization, she said she finds that the states maintaining anti-miscegenation laws at the time of Loving regarded marriage restricted to one’s race as fundamental to the definition of the institution as marriage being between a man and a woman.
Thomas also noted that Roberts argues that marriage has for millennia been defined as one man and one woman, ignoring the persistent reality of polygamy.
Justice Kennedy’s opinion treats equal protection as “connected in a profound way” to substantive due process, she said, adding that he does not engage in traditional equal protection analysis, determining whether the plaintiffs fall into a suspect class and identifying a standard of review.
On the other hand, she said, at two places in the opinion, Kennedy refers to same-sex attraction as an immutable trait, which generally serves as a starting point for determining whether a group is a suspect class.
According to Thomas, the lack of detail regarding equal protection is consistent with how Kennedy has been approaching marriage equality cases.
“This is a marriage issue for him not a same sex issue,” she said, adding, “at least since Windsor, it’s where Kennedy is coming from.”
Wednesday, June 24, 2015
BabyCenter.com noticed thisemerging trend in its midyear report. Though gendered names like Noah and Emma remain super common, gender-neutral names like Amari, Karter, Phoenix, Quinn and Reese are rising in popularity too.
“As usual, baby names are reflecting a larger cultural shift,”says BabyCenter’s Global Editor in Chief Linda Murray. “Millennials are an open-minded and accepting group, and they don’t want their children to feel pressured to conform to stereotypes that might be restrictive.”
Saturday, June 20, 2015
My colleague, Will Huhn, analyzes the Supreme Court's recent decision in Kerry v. Din. In Kerry, the Court, in numerous divided decisions, denied that a woman's constitutional right to marry was infringed by a refusal to grant her husband a visa. Scalia in a plurality of 3 took the occasion to challenge the existence of all liberty interests in privacy rights of the family.
Huhn reveals Justice Scalia's reliance on coverture, yes, coverture, and the historical denial of citizenship to women who married foreign nationals.
Huhn writes: Utilizing this “tradition” standard Justice Scalia rejected any possibility that Din had a constitutional right to live with her husband in the United States. Justice Scalia pointed out that traditionally American women who married foreign nationals were considered to have assumed the nationality of their husbands and were stripped of their American citizenship. While Justice Scalia admits that such discriminatory laws would be unconstitutional today, he nevertheless asserts that this history proves that Din does not have a constitutional right to live with her husband in the United States. Here is Justice Scalia’s analysis that is predicated on the concept of “coverture”:
Most strikingly, perhaps, the Expatriation Act of 1907 provided that “any American woman who marries a foreigner shall take the nationality of her husband.” Thus, a woman in Din’s position not only lacked a liberty interest that might be affected by the Government’s disposition of her husband’s visa application, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immigration Act of 1921, it omitted fiances [that is, a woman’s fiancé] and husbands from the family relations eligible for preferred status in the allocation of quota spots. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924.
To be sure [Justice Scalia stated], these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. [citing] C. Bredbenner, A Nationality of Her Own 5 (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Nevertheless, this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” [citing] Glucksberg.
Tuesday, June 16, 2015
Not too long ago, the term “marital rape” was considered an oxymoron. In some U.S. states, it might as well still be one.
Lawmakers in Ohio are trying to remove archaic forms of “marital privilege” in state laws pertaining to rape, The Columbus Dispatch reports. Although marital rape is illegal in Ohio as well as nationwide, the notion of marital privilege or exemption dates from an era when a man could only be charged with rape if the alleged victim was not his wife—an era that only ended in the United States on July 5, 1993 when North Carolina criminalized marital rape, becoming the final state to do so.
But although marital rape is illegal in the United States, Ohio is one of several states in which marital rape continues to be handled in a substantially different way than rape outside of marriage, whether it is charged under a different section of criminal code, restricted to a shorter reporting period, held to a different standard of coercion and force, or given a different punishment.
The classic historiography of marital rape laws is Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 California Law Rev. 1373 (2000).
Monday, June 1, 2015
Keith Cunningham-Parmeter has published "(Un)Equal Protection: Why Gender Equality Depends on Discrimination." It's available for download here and its abstract reads as follows:
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 antisubordination 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.
Saturday, May 30, 2015
Zhang Wei, a 29-year-old male resident of Beijing, is at first glance an unlikely exemplar for the power of women in modern China. But hear him out. A junior executive at a state-owned energy company, Zhang has not yet been able to save enough money to afford a decent apartment in Beijing, where prices have pretty much gone straight up since he entered the workforce seven years ago. So Zhang says he saves nearly 30 percent of his salary every month and is hoping prices decline a bit so he can buy in the next year or two. “I am,” he concedes, “a little bit crazed by the idea.”
Why would a young professional male be obsessed with buying an apartment in a market a lot of people think is already overpriced? “Because,” he says, “I’d like to get married and start a family. My parents are really pressuring me. And if I don’t own an apartment, that’s really hard.’’