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.
Monday, June 13, 2016
Is Marriage Worth the Trouble for Women? The short answers is "No."
First, confounding the view of marriage as the female heaven and haven is the fact that marriage actually appears to benefit men more than it does women. Research has shown that the "marriage benefits"—the increases in health, wealth, and happiness that are often associated with the status—go disproportionately to men. Married men are better off than single men. Married women, on the other hand, are not better off than unmarried women.
Second, in contrast to the myth that marriage is a woman’s ultimate and sacred fulfillment is the reality that roughly two-thirds of divorces are initiated by women.***
A recent paper by Stanford sociologist Michael J. Rosenfeld analyzed longitudinal data from the How Couples Meet and Stay Together survey—a survey of a nationally representative sample of 2,262 adults in heterosexual relations followed from 2009 to early 2015.
The results revealed an intriguing pattern: As expected, women initiated roughly two thirds (69%) of the breakups in heterosexual marriages. However, the gendered trend in relationship breakups held only for marriages and not for other non-marital unions. Moreover, women in marriages, but not in other relationships, reported lower levels of satisfaction.*
This finding appears to provide support for the notion that women experience the institution of marriage as oppressive, in large part because it emerged from and still carries the imprint of a system of female subjugation.
H/t Marcia Zug
Friday, May 6, 2016
Mother's Day. The feminist's friend or foe?
- Mother's Day's Dark History
- Why the Founder of Mother's Day Turned Against It
- Mother's Day is Steeped in Radical, Religious Feminism
- Ann Maria Reeves Jarvis
- The Mother's Day Myth: How we "Thank" Mothers for their Free Labor
- Mother's Day: The Creation, Promotion and Meaning of a New Holiday in the Progressive Era
Tuesday, April 19, 2016
Shannon Weeks McCormack (Washington), Postpartum Taxation: The Internal Revenue Code and the Opt Out, Georgetown L.J. (forthcoming.
Abstract:Legislation seeking to ensure that women receive equal pay for equal work has been on the books for decades. Nevertheless, the average American woman still receives less than eighty cents for every dollar earned by the average American man. Happily, the gender pay gap between men and childless women is narrowing over time. Meanwhile, the gap between mothers and others continues to widen. Career interruptions contribute significantly to this disturbing trend — nearly half of mothers opt out of the workforce at some point in their lives, most often to care for young children. Faced with too-short (or non-existent) maternity leaves, inflexible work schedules and the soaring costs of childcare in the United States, this opt out phenomenon is hardly surprising. But with the decision to opt out comes grave cost. Over 90% of opt out moms want to return to the workforce several years after off ramping. Unfortunately, many discover that they are unable to do so. A mother that does manage to reenter the workforce will find that even a short off ramp results in a sizeable and disproportionate reduction in her annual earnings that will persist for every year of her remaining life.
Given this dismal reality, experts that study the biases faced by women in the workplace encourage mothers who want to maintain careers to resist opting out during their children’s preschool years (and to incur the many high costs of doing so) in order to protect their most valuable economic asset — their lifelong earning capacity. Surprisingly, these insights are under- (if not completely un-) utilized in tax scholarship considering the taxation of women and the family. Incorporating these critical insights, this Article shows that the tax laws are already well suited to provide new mothers the encouragement urged by so many non-tax scholars. This Article first proposes several reforms to ensure the postpartum earnings of new mothers are not over-taxed. It then discusses existing mechanisms used by the tax laws to encourage long-term investment and identifies two mechanisms that could be easily fashioned to help new mothers remain in the very imperfect workforce that exists today.
Monday, April 4, 2016
All workers in New York state will soon be eligible for a guaranteed 12 weeks of paid family leave, one of Gov. Andrew Cuomo’s legislative priorities, which passed Thursday in a long-debated budget agreement.
Beginning in 2018, all full- and part-time employees who’ve been working at their jobs for at least six months will have access to up to eight weeks of leave at half their salaries. The policy, which will be funded by employees through payroll deductions, will gradually phase up over four years to 12 weeks and a maximum of two-thirds of the state’s average wage. It also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act.
With this new policy, New York joins California, New Jersey, and Rhode Island on the elite list of U.S. states that offer guaranteed paid leave to hang out with a new baby, bond with an adopted or foster child, or care for a sick family member. Rhode Island offers four weeks of partial pay and New Jersey and California offer six, placing New York far ahead of the pack, though it still trails most other countries in the world when it comes to maternity leave.
Friday, March 18, 2016
The book jacket! Publication is one step closer!
For a preview of the first chapter, see Tracy A. Thomas, The "Radical Conscience" of Nineteenth-Century Feminism
See also Tracy A. Thomas, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW (2016)
Thursday, February 11, 2016
Susan Boyd (British Columbia), “Equality: An Uncomfortable Fit in Parenting Law”, in Robert Leckey, ed., After Legal Equality: Family, Sex, Kinship (Routledge 2015), 42-58
Since the second wave of the women’s movement and the emergence of the fathers’ rights movement in the 1970s and 1980s, family law has moved towards formal legal equality and gender-neutral language. Early liberal feminists were optimistic about involving men as equal partners and parents and were keen to remove gender-based legal assumptions. Fathers’ rights advocates lobbied for equal or joint custody norms and for mothers to have equal financial responsibilities, in order to redress what was and still is perceived as discrimination against men. In most modern family laws, male and female spouses now owe reciprocal duties of financial support and disputes over children are determined by a child’s best interests, rather than by assumptions based on gender. More recently, this gender-neutral language has accommodated the reality of same-sex partnerships and same-sex parenting.
These gender-neutral legal norms, however, sit uncomfortably next to familial realities that remain stubbornly gendered and unequal in certain respects, particularly because women still assume greater responsibility for domestic labour and childcare. Many feminists challenge calls for equal treatment of fathers and instead propose legal norms that recognize these unequal social relations. Even if the legal norms are gender-neutral on their face, they should include guidelines that direct attention to gendered patterns or they should be interpreted so as to take account of gendered social realities still supported by social and economic structures. For instance, spousal support law should take account of the patterns of domestic labour in the family at issue. As for child custody, norms should direct attention to whether one parent has taken primary care responsibility for a child and whether domestic abuse is a factor (e.g. Boyd 2002; Shaffer and Bala 2003).
This chapter uses laws on parenthood to study the contradiction between the trend towards formal equality and ongoing gendered patterns of care, as well as the growing phenomenon of parenting by lesbians and by gay men and by single mothers by choice, by which a woman plans to be a child’s sole parent. Specifically, it assesses the innovative potential of the new Family Law Act (FLA)1 in the Canadian province of British Columbia, which redefines legal parenthood and alters the regulation of post-separation parenting. The new definitions of legal parenthood respond to calls for the recognition of same-sex parenting and reproductive technologies. The new norms on post-separation parenting respond to calls for equal treatment of fathers, but they also take account of research on the troubling impact of shared parenting law reforms regulating post-separation disputes over children. As such, the FLA arguably eschews strict formal equality.
Monday, January 11, 2016
I've posted Chapter 1 of my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, forthcoming this summer from NYU Press. This chapter introduces Stanton, her legacy for the law and domestic relations, and her holistic legal feminism. See The "Radical Conscience" of Nineteenth-Century Feminism.
Thursday, December 31, 2015
In 2015, something that rarely happens happened. The Supreme Court, the United States Congress, and state legislatures all started to get on the same page. Fairness for pregnant workers was what brought them all together. Despite the many diverse views these institutions represent, they agreed that ensuring pregnant workers’ health and economic security is paramount. Here are 2015’s top highlights in the fight for fairness for pregnant workers.
Friday, December 11, 2015
Five women are suing the government of Japan over a law requiring spouses to adopt the same surname.
“By losing your surname ... you’re being made light of, you’re not respected ... It’s as if part of your self vanishes,” said Kaori Oguni, a translator and one of the five women involved in the lawsuit.
A decision by the supreme court, due on 16 December, coincides with prime minister Shinzo Abe’s push to draw more women into a shrinking workforce. Despite that, many in his conservative ruling party are opposed to any legal change.
An 1896 law says spouses must adopt the same surname to legally register their marriage. The law does not specify which one, but in practice, 96% of women take their husband’s name, a reflection of Japan’s male-dominated society.
Conservatives say allowing couples to choose whether they share the same surname or not could damage family ties and threaten society.
“Names are the best way to bind families,” Masaomi Takanori, a constitutional scholar, told NHK public television.
“Allowing different surnames risks destroying social stability, the maintenance of public order and the basis for social welfare.”
H/T Joanna Grossman
Wednesday, December 2, 2015
Allison Tait (Richmond), Divorce Equality, 90 Wash. Law Review (2015)
Abstract:The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.
Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself.
Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.
Tuesday, November 24, 2015
Serena Mayeri (Penn), Marriage (In)equality and the Historical Legacies of Feminism, 6 Cal. Law Rev. Cir. (2015):
Abstract:In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage.Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.