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.
Legal History Blog, Woloch's "Class By Herself"
A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s
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).
Tuesday, April 14, 2015
J. Shoshanna Ehrlich (U Mass, Women's Studies), Regulating Desire (SUNY Press 2014).
Starting with the mid-nineteenth-century campaign by the American Female Moral Reform Society to criminalize seduction and moving forward to the late twentieth-century conservative effort to codify a national abstinence-only education policy, Regulating Desire explores the legal regulation of young women’s sexuality in the United States. The book covers five distinct time periods in which changing social conditions generated considerable public anxiety about youthful female sexuality and examines how successive generations of reformers sought to revise the law in an effort to manage unruly desires and restore a gendered social order. J. Shoshanna Ehrlich draws upon a rich array of primary source materials, including reform periodicals, court cases, legislative hearing records, and abstinence curricula to create an interdisciplinary narrative of socially embedded legal change. Capturing the complex and dynamic nature of the relationship between the state and the sexualized youthful female body, she highlights how the law both embodies and shapes gendered understandings of normative desire as mediated by considerations of race and class.
Thursday, April 9, 2015
Legal History Blog, Katz on Judicial Patriarchy, Domestic Violence, and the Family Privacy Narrative
Elizabeth Katz, a doctoral candidate in History at Harvard University, with an JD and MA in history from the University of Virginia,has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, which is forthcoming in the William and Mary Journal of Women and the Law 21 (Winter 2015): 379-471. Ms. Katz received the Kathryn T. Preyer Award of the American Society for Legal History for an earlier version of this article.
According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.
Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.
See also a previous post on related scholarship,A Surprising History of Domestic Violence Protection
And see also Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence from Colonial Times to the Present (2004)
Tuesday, March 3, 2015
But not all of the rules that govern our workplaces have caught up with this reality, and today, too many of the opportunities that our mothers and grandmothers fought for are going unrealized. That is why I am committed to tearing down the barriers to full and equal participation in our economy and society that still exist for too many women. All women deserve equal pay for equal work and a living wage; the Congress needs to raise the minimum wage and pass a law that ensures a woman is paid the same as a man for doing the same work. I continue to call for increased workplace flexibility and access to paid leave -- including paid sick leave -- so that hardworking Americans do not have to choose between being productive employees and responsible family members. And I have proposed a plan that would make quality child care available to every middle-class and low-income family in America with young children. These are not only women's issues -- they are family issues and national economic priorities.
Thursday, February 19, 2015
Some of us certainly know Pauli Murray and her work, but glad to see a higher profile of her legacy here.
Pauli Murray is one of the most pivotal figures in 20th century African-American civil rights history, but beyond academic circles, she is not very well known. In 1944, she graduated as the valedictorian of her Howard University law class, producing a senior thesis titled “Should the Civil Rights Cases and Plessy Be Overruled?” Trained by William Howard Hastie and Leon Ransom at Howard, Pauli Murray had been witness to their early legal strategy of combating separate but equal doctrine by forcing states to either make black institutions equal to their white counterparts or integrate white institutions, if they failed to do so. However, she argued that Plessy v. Ferguson was inherently immoral and discriminatory and should be overturned. When she brought up this argument to her classmates, she noted that her suggestion was received with “hoots of derisive laughter.” Murray coined the term “Jane Crow” to name the forms of sexist derision she frequently encountered during her time at Howard. It was the piece she co-authored in 1965 called “Jane Crow and the Law” that Ginsburg cites as so influential in her thinking about legal remedies for sex discrimination. Nearly 10 years later, in 1953, Spottswood Robinson, Thurgood Marshall and others pulled out a copy of her senior paper and used it as a guide to strategize how they would argue the Brown v. Board case. They didn’t bother to mention this until about 10 years later, when she ran into Robinson at Howard Law School.
The Elizabeth Cady Stanton and Susan B. Anthony Statue Fund advocates placing a statue of the two women’s rights pioneers in New York City’s Central Park where there are 22 statues honoring men and none honoring real women. The statue will celebrate the largest nonviolent revolution in our nation’s history – the movement for women’s right to vote.
Saturday, February 14, 2015
Reva Siegel offers an excellent, concise and insightful analysis in Abortion and the "Woman Question": Forty Years of Debate, 89 Indiana L. J. 1365 (2014)
This lecture commemorates Roe’s fortieth anniversary by reconstructing how the woman question became entangled in the abortion debate in the twentieth century. The abortion debate is commonly thought to concern the question of when life begins. But the question of when life begins is not the only question that makes the abortion debate explosive. I will show how the entrance of women’s rights claims into the abortion debate fatefully changed it, and led opponents of abortion to engage the woman question in terms that have changed shape over the last several decades, from the frames of “pro-family” to the more contemporary discourse associated with claims that “abortion hurts women.” Tracing the four-decade arc of this conversation allows us to see more clearly the many forms in which the “woman question” can be expressed in cases that will reach the Roberts Court in the coming decade.
Saturday, December 13, 2014
An effort to create a National Women’s History Museum is heading to President Barack Obama’s desk after the Senate passed the measure 16 years after it was first introduced.
The legislation for a women’s history museum will establish a privately funded commission to study and report how a museum could be created and maintained in Washington.
The Website for the National Women's History Museum
Thursday, December 11, 2014
Legal History Blog, Ziegler on Young v. UPS in Historical Context
Mary Ziegler, Florida State University College of Law, has posted Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty. Here is the abstract:
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Tuesday, November 25, 2014
Mary Ziegler, (Florida State), Abortion and the Constitutional Right (Not) to Procreate, 8 U. Richmond L. Rev. 1263 (2014). From the abstract:
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.
Thursday, October 30, 2014
Erin Sheley (GW) has posted Double Jeopardy: The Condemned Woman as Historical Relic, 24 Law & Lit. 211 (2014)
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Tuesday, October 28, 2014
Linda McClain at Balkinization on the Puerto Rico same-sex marriage decision and the gendered origins of "traditional marriage."
Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.
To illustrate the consistency of Puerto Rico’s marriage policy, the federal district court observes that, in 1899, when “royal decree brought Puerto Rico within the ambit of the Spanish Civil Code,” that Code governed marriage and the “rights and obligations of husband and wife.” The court traces Puerto Rico path to becoming a “possession” of the United States, observing that the underlying definition of marriage did not change. Thus, marriage, in the 1902 Civil Code, is “ a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife, and to fulfill for one another all the duties that the law imposes.”
But what were those duties imposed by law? The court attaches to its opinion a translation of an excerpt from the 1899 Civil Code, which include certain “rights and responsibilities” of husband and wife: “The husband must protect his wife and the latter obey the husband.” (Art. 57); “The wife is obliged to follow her husband wherever he may establish his residence” (Art. 58); “The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through a solicitor” (Art. 60). The husband is also “the administrator of the property of the conjugal partnership,” unless otherwise stipulated (Art. 59).
These provisions of the Civil Code, rooted in Spanish influence, have parallels in the English common law system of coverture, a system that, as the Supreme Court explained in Planned Parenthood v. Casey, is “no longer consistent with our understandings of the family, the individual, or the Constitution.” Challenging the idea of a consistent marriage policy is the fact that these hierarchical provisions no longer appear in the current version of the Civil Code. Instead, the “duties” of spouses “imposed by law” now take a mutual, gender neutral form: “The spouses shall protect themselves and satisfy their needs in proportion to their conditions and fortune” (Section 282); “The spouses shall decide by mutual agreement where to establish their domicile and residence for the attainment of the best interest of the family” (Section 283); “Both spouses shall be administrators of the community property, except when otherwise stipulated . . .” (Section 284); and “[E]ither of the spouses may legally represent the conjugal community” (Section 286).
These changes are similar to the abrogation of the common law model of marriage. They show how the law of marriage evolves over time. Thus, the “traditional marriage” to which Judge Juan M. Pérez-Giménez appeals has already departed in many ways from “tradition.
Saturday, October 25, 2014
From the program for the 2014 American Society of Legal History conference coming up Nov. 6 in Denver. Here are the presentations related to gender and the law. It is really great to see so many talks in this field.
On the panel "Gender in US Legal History"
Chair/Commentator: Serena Mayeri, University of Pennsylvania Law School
Kimberly A. Reilly, University of Wisconsin-Green Bay, “For Love or Money: Loss of Services Suits and the Transformation of Wives’ Household Labor, 1870-1920”
Larissa Werhnyak, University of Iowa, “To Make the World Safe For Men: The Anti-Heart Balm Campaigns of the 1930s”
Jeffrey D. Gonda, Syracuse University, “On a Different Home Front: Black Women & Shelley v. Kraemer, 1944-1948”
Lauren MacIvor Thompson, Georgia State University, “'An Outrage to Common Sense': Legal and Medical Conceptions of Female Disability in the Women's Rights Movement, 1870-1930”
On the panel "Contesting Custody, Creating Rights: Family Law and Equality Claims in Late 20th-Century America"
Chair:Commentator Karen M. Tani, University of California-Berkeley School of Law
Deborah Dinner, Washington University School of Law, “The Divorce Bargain: The Fathers’ Rights Movement and the Dual System of Family Law”
Serena Mayeri, University of Pennsylvania Law School, “Unmarried Fathers, Sex Equality, and Marital Supremacy, 1970-1983”
Marie-Amelie George, Yale University, “The Custody Crucible: The Centrality of Lesbian Mother Custody Cases in Gay Rights”
On the panel "Women Acting Locally, Women Acting Globally: Female Activists Trying to Shape a Modern World Across the 20th Century"
Chair/Commentator: Nupur Chaudhuri, Texas Southern University
Susan Hinely, Stony Brook University, “The Theory and Practice of International Justice in the Pre-War Suffrage Movement”
Kathleen Banks Nutter, Smith College, “‘Abundant life for all’: American YWCA Workers in Turkey, 1920-1935”
Gwen Jordan, University of Illinois-Springfield, “Building Transnational Coalitions of Women of Color During the Cold War: The Work of Edith Sampson and the National Council of Negro Women”
And presentations included on other panels:
Katrina Jagodinsky, University of Nebraska-Lincoln, "The Legal Pluralisms of Indigenous Women and their Daughters, 1854-1934”
Donna Schuele, University of California-Irvine, “California's Women's Rights Movement: The Promise and Perils of the 14th Amendment”
Nan Goodman, University of Colorado-Boulder, “'I hear no things laid to my charge': Oral and Written Discourse in Anne Hutchinson's Trial Transcript”
Sarah Bakkali, Université Panthéon-Assas (Paris II), “Female Impotence in Medieval Canon Law”
Alison L. Lefkovitz, NJIT/Rutgers University-Newark, “Husbands and Wives at Risk: Sexual Access, Household Labor, and Backlash, 1963-1984”
Evelyn Atkinson, University of Chicago (student), “The Telegraph Cases: Law, Gender, Family, and Corporate Responsibility in the Late 19th Century"
Thursday, October 23, 2014
I wrote an article, related to my current book project, on feminist icon Elizabeth Cady Stanton’s views on abortion. Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012). The article was triggered by a political misuse of Stanton for modern feminist-for-life anti-abortion advocacy, which claims she was a strong pro-life advocate. My research showed that Stanton said little about abortion per se. And what she did say about reproductive rights – women’s unilateral right to self-sovereignty in reproductive decisionmaking and justice and forgiveness for women’s crimes of infanticide—suggests the opposite. That to the contrary, her work provides historical support for a woman’s right to personal choice.
I’ve turned up a few more pieces of historical evidence since the publication of the article. Here’s an excerpt from the book chapter draft:
Stanton elaborated on this concern with enlightened motherhood, growing more melodramatic and emphatic. Writing to the Seventh Convention on Woman’s Rights, Stanton said polluted marital relations [with abuse, alcoholism, and misery] produced “the shocking monstrosities of . . . deformed and crippled offspring,” “miserable progeny conceived in disgust and brought forth in agony,” and often confined to asylums. Letter from Mrs. Stanton to Seventh National Woman’s Rights Convention, Nov. 24, 1856. Another consequence of the perversions of marriage was abortion, “What all these advertisements in our public prints, these family guides, these female medicines, these Madame Restells?” Abortion, asylums, and disabled children, Stanton argued, showed “what a depth of degradation the women of this Republic have fallen, how false they have been to the holy instincts of their nature, to the sacred trust given them by God as the mothers of the race?” Women, Stanton argued, had a higher duty to control and deliberate in reproduction, not simply propagate. Her solution was to “let Christians and moralists pause in their efforts at reform and let some scholar teach them how to apply the laws of science to human life.” To her readers in the Revolution, she emphasized the need to base the fundamentals of social and family life “on science and philosophy by educating women into the idea that to bear noble children to noble men with sound bodies and sound minds, is a worthy work and one that brings its own happiness and reward.” But, she continued, “to fill the world with idiots, lunatics, criminals, the blind, the deaf, the dumb,” and to “spend one’s days nursing muling, puling, limp-backed, hydrocephalic abortions of humanity, is not a work worth a Christian woman, but a sin against herself, the state, and a gross violation of the immutable laws of God.” ECS, Mrs. Stanton and the Chicago Tribune, Rev., Feb. 8, 1871.
The eugenic context, then considered an emerging science, is stocking to us today. And that is a story in and of itself. But what can we make of this from a feminist perspective? That Stanton endorsed women’s right, indeed moral duty to control reproduction. That she supported science to control birth. That she argued for a consideration of the health consequences to the child, as women do today when making difficult decisions about severe health defects shown in prenatal testing. And that she condemned religious moralists for their mandates to women on motherhood.
Saturday, October 18, 2014
Eva Schandevyl (Vrije Universiteit Brussel, Belgium), ed., Women in Law and Lawmaking in Nineteenth and Twentieth Century Europe (Sept. 2014)
Exploring the relationship between gender and law in Europe from the nineteenth century to present, this collection examines the recent feminisation of justice, its historical beginnings and the impact of gendered constructions on jurisprudence. It looks at what influenced the breakthrough of women in the judicial world and what gender factors determine the position of women at the various levels of the legal system.
Every chapter in this book addresses these issues either from the point of view of women's legal history, or from that of gendered legal cultures. With contributions from scholars with expertise in the major regions of Europe, this book demonstrates a commitment to a methodological framework that is sensitive to the intersection of gender theory, legal studies and public policy, and that is based on historical methodologies. As such the collection offers a valuable contribution both to women's history research, and the wider development of European legal history.
Tuesday, October 14, 2014
Tomorrow, I am presenting as part ofthe University of Akron's Rethinking Gender series." The title of my talk is "Understanding Divorce Law Historically Through the Lens of Gender." It is based on a chapter of my book project, Elizabeth Cady Stanton and the Feminist Foundations of Family Law now nearing completion.
One running theme of the book is appreciating Stanton as a lay lawyer - a person trained by her father, who was a judge and lawyer who apprenticed young lawyers in their home; a person analytically inclined to "think like a lawyer;" who understood the normative function of the law; and who advocated for legislative reform and legal change. This legal understanding, I think, offers insights for us in both understanding her work in the nineteenth-century, and also incorporating its relevance today. See Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Thomas & Boisseau, eds. NYUP 2011).
On divorce, Stanton was a vocal and persistent advocate for no-fault, or "easy divorce." But more importantly from my perspective is that she framed divorce as a woman's issue. Divorce was both a right and a remedy for woman's wrongs. Her life-long commitment to divorce reform attacked the problem of restrictive marriages, which confined women into legal obscurity under coverture, patriarchal social expectations, and sometimes domestic abuse.
Her framework of gender approached the divorce issue from the three classic feminist approaches: equality, difference, and systemic. As to formal equality, Stanton challenged the double moral standard that supported the law of divorce, for example, allowing divorce for the wife's adultery, but requiring "aggravated" adultery of adultery plus some additional fault like cruelty, dessertion, or sodomy by the husband. Her equality theories conceptualized divorce as a individual right, granting women autonomy and psychological freedom to control their own personal relations.
As to difference, Stanton argued that fault grounds for divorce should be expanded to address the different concerns of women. The law was too focused on grounds based on sexual privilege, as in adultery and failure to consummate. Instead, it needed to include grounds most relevant to women, cruelty and desertion. A cruelty divorce mechanism connected to Stanton's work on temperance and against domestic violence, arguing the necessity of releasing and protecting women and children in abusive relationships. Desertion was important for women because they needed a court to restore their legal rights as a single woman to contract, hold property, earn income, and have custody of their children. Men accomplished desertion by practice, simply walking away, often headed West, retaining their legal identity, all property rights, and the ability to earn a livelihood and thus in little need of the courts.
These specific arguments as to divorce grounds though were part of Stanton's much bigger and radical challenge to the system of marriage itself. She conceptualized marriage not as a covenant or status, but as a contract. And as a contract between two fully equal partners. And as a contract like any other employment or commercial contract that could be modified or terminated at the will of the parties. This gave her the legal foundation to justify no-fault divorce, though it didn't mollify the moral critics. Despite opposition from most other feminist reformers, Stanton continued to advocate for free access to divorce, fighting against the backlash and growing conservativism at the end of the century. See Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment, 22 Const. Comment. 137 (2005).
Saturday, September 20, 2014
Leigh Bienen, Florence Kelley and the Children: Factory Inspector in 1890s Chicago (2014)
A new book by a Northwestern University School of Law scholar aims to fill in the gaps in all that has been written about Florence Kelley—focusing particularly on the somewhat neglected decade the late 19th-century advocate for women and children spent in Chicago. Though Kelley is the subject of three biographies and an autobiography, author Leigh Bienen, a senior lecturer at the School of Law, concluded during her extensive research on the legal and social activist that too little had been written about her efforts to improve working conditions in Chicago, where starving women and children labored long hours in unsafe conditions.
In an interesting twist, Bienen parallels her own life in Chicago with Kelley’s in the new book. She braids together three narratives, the story of Kelley’s life as a mother and reformer in the tumult of 1890s Chicago, the story of her (Bienen’s) own arrival in Chicago a century later and her life and work here, as well as a narrative of the extraordinary events leading to the abolition of capital punishment in Illinois.
Tireless in her efforts to improve working conditions and eradicate child labor, Kelley was fleeing an abusive husband when she came to Chicago from New York in the 1890s and took up residence with her children at Hull-House, the legendary settlement house co-founded by Jane Addams. Although strapped for funds, Kelley did the work she set out to do, held several government jobs, and, along with others, persuaded the public that this was the time to do something about the conditions in the tenements. She was named the first chief factory inspector for the state of Illinois. Gov. Peter Altgeld’s 1893 appointment of a woman to such an important position was nearly unprecedented. Kelley implemented a factory inspection law adopted by the Illinois legislature in 1893, limiting women’s working hours to eight per day.
The new book grew out of an interactive website based on Bienen’s research on Kelley that was launched in 2008 (http://florencekelley.northwestern.edu). “I am interested in her life, her family life, her children and how she managed to be both a public figure and a mother,” Bienen said. “None of the biographies adequately deal with her decade in Chicago, perhaps because they were written by Easterners,” Bienen said. “None, in my opinion, conveyed the richness of the historical context of the effort to reform conditions in city sweatshops and tenements and the actions and personalities of public figures such as Florence Kelley and Jane Addams.”
Also of particular interest to Bienen, Kelley earned a law degree from Northwestern in 1895 -- during a time when college graduate education was highly uncommon for women. Kelley was also known for combining fiery stylized prose with well-researched findings in her advocacy and investigations. ***
Extensive litigation challenging Kelley’s work and the new factory inspection law resulted in the Illinois Supreme Court declaring parts of the law unconstitutional in 1895. However, Kelley and her colleagues triumphed years later when the U.S. Supreme Court, at the urging of Louis Brandeis, upheld such statutes. Kelley and her colleague Josephine Goldmark invented the Brandeis Brief for that case.
Saturday, January 3
Co-Sponsored Program, Liberty-Equality: Gender, Sexuality, and Reproduction—Griswold v. Connecticut Then and Now, 8:30 a.m. – 10:15 a.m.
Presented by the Section on Constitutional Law and co-sponsored by the Sections on Women in Legal Education and Legal History, this program marks the 50th anniversary of Griswold v. Connecticut, the ground-breaking Supreme Court decision recognizing a right to privacy that protected individuals in making decisions about the use of contraceptives from the reach of state criminal law, but spoke implicitly to the constitutional underpinnings of an individual’s rights or interests in intimacy, marriage, procreation, sexuality, and sexual conduct. Panelists will place the case in historical context, and explore the development of the Griswold doctrine, as well as its implications for current constitutional controversies over access to reproductive health care, marriage, sexuality and sexual conduct.
Section on Women in Legal Education Luncheon, 12:15 – 1:30 p.m.
We are pleased to announce that this luncheon honors both Justice Ruth Bader Ginsburg, who is scheduled to attend and for whom the Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award is named, and this year’s Award recipient, [I’ll fill this in before I send and after I talk with her]. Join us to spend some time with and hear from our honorees.
Joint Program: Engendering Equality: A Conversation with Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States
and New Voices in Legal History, 1:30 – 3:15 p.m.
This Section on Legal History and Women in Legal Education Joint Program, co-sponsored by the Section on Constitutional Law,explores the history of women’s equality and the legacy of Justice Ginsburg. The first portion of the program will, through a conversation between Justice Ginsburg and Wendy Williams, consider the ideas and strategies shaping Justice Ginsburg’s efforts as an advocate, an academic, and a Justice to achieve equal citizenship for women.
The second portion of the program will present a panel of new voices in Women’s Legal History who study the complex and often contradictory ways in which social, political, and legal actors have appealed to gender and equality in movements of the past, and suggest how such studies might engender/inform equality’s future.
AALS Crosscutting Program: The More Things Change . . . Exploring Solutions to Persisting Discrimination in Legal Academia, 2:00 – 3:45 p.m.
This program, spearheaded by WILE Member Meera Deo, draws from empirical data, legal research, litigation strategy, and personal experience to both further conversations about the persistence of discrimination in the legal academy and activate strategies for addressing ongoing structural and individual barriers. Intersectional bias compounds many of these challenges, which range from the discriminatory actions of colleagues and students, to the marginalization of particular subject areas in the curriculum, to structural hierarchies in the profession.
By creating an avenue for direct personal exchange regarding these topics, the program seeks to build community between like-minded individuals who are diverse across characteristics of race, gender, class, teaching status, institution, and age. The focus of the participants is to share best practices and explore new approaches for overcoming ongoing discrimination, with the hope that these strategies may be more broadly employed.
The program follows an innovative format. After short presentations by three speakers, the program transitions to an “open microphone” session of speakers (selected in advance from a “call for remarks”) including those who are untenured, women of color, allies to marginalized faculty, clinical, legal writing and library faculty, and others with perspectives that may differ from the majority. The final thirty minutes are reserved for questions and conversation.