Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, October 3, 2017

An Originalist Defense of the Privileges or Immunities Clause for Gender Nondiscrimination in Bradwell v. Illinois

M. Frances Rooney, Note, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination, Geo. J. Law & Public Policy (forthcoming).

The Privileges or Immunities Clause of the Fourteenth Amendment provides a constitutional right not to be discriminated against on the basis of gender. Original public meaning originalism provides the structure to find that the clause includes a right to practice a lawful profession that extends to all citizens, irrespective of gender. The clause is a guarantee of rights to every “citizen of the United States,” not every male citizen; because of that, the clause is a positive grant of rights to all citizens in the United States. 

The central thesis of this Note is that women who are citizens of the United States have rights guaranteed by the Privileges or Immunities Clause, specifically the right to practice a profession. This right cannot be denied on the basis of gender, because adult women have the same capacity as men to practice law. Had this been recognized in 1873, the time The Slaughter-House Cases and Bradwell v. Illinois were decided, and had the erroneous interpretation of the clause in Slaughter-House not prevailed, Bradwell would have recognized this right. Given the contemporary knowledge of the capacities of women and an originalist approach to constitutional interpretation and construction, the decision in Bradwell should be overruled. Taking this step would lead to the development of an originalist gender equality jurisprudence.

Feminist pioneer Elizabeth Cady Stanton made a similar argument against Bradwell (and Minor v. Happersettat the time using the P&I Clause.  Although her arguments were more textualist than originalist per se.  I discuss these early equality interpretations of the Privileges or Immunities Clause in my recent book Elizabeth Cady Stanton & the Feminist Foundations of Family Law.  A blog post summarizing the relevant part, chapter 2, is here, at  What do You Women Want?: The 19th Century Demand for Reform of Marital Property.

October 3, 2017 in Constitutional, Legal History, SCOTUS | Permalink | Comments (0)

Monday, October 2, 2017

Book Review: Divided We Stand and the National Women's Conference of 1977

This book is sitting near the top of my pile of books-to-read

Linda Greenhouse, Who Killed the ERA?, NYT Book Review, reviewing:

Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics, by Marjorie J. Spruill

Marjorie J. Spruill’s Divided We Stand is the most recent effort to probe the feminist/antifeminist struggle of the 1970s for what it might tell us about today’s polarized America. It’s an ambitious book, built around a close study of an event that Self treats in only a few pages and Mansbridge in a single passing reference: the congressionally mandated, federally funded National Women’s Conference that took place in Houston in November 1977. The conference was organized by the National Commission on the Observance of International Women’s Year, set up by the Ford administration in 1975 to coordinate American participation in the United Nations–sponsored Decade for Women. From May to July 1977, some 130,000 people—all but a few hundred of them women—took part in state-level meetings to select delegates and debate the conference’s agenda. The idea was to come up with a “plan of action” for the national delegates to adopt and present to the White House and Congress.

The path to this goal was intensely contested, with a number of the state conventions becoming ideological battlegrounds over issues like federally funded child care, gay rights, and abortion. Two thousand delegates and nearly 20,000 observers eventually attended the official conference in Houston, while a similar number gathered across town in a conservative counter-convention organized by Schlafly. Both sides emerged highly mobilized and ready for continued battle.

The events of 1977 are often portrayed merely as one episode in a decade of feminist conflicts, gains, and setbacks. Spruill, a historian of southern and women’s history at the University of South Carolina, makes the rather stronger claim that the competing conferences “ushered in a new era in American politics—the beginning rather than the end of a protracted struggle over women’s rights and family values.” Whereas in the early 1970s Democrats and Republicans had, in Spruill’s view, “both…supported feminist goals,” the events of 1977 created two polarized and increasingly partisan camps. The plan of action that emerged from the official convention in the end included support for the ERA, abortion rights, and gay rights. It called for equal access to credit, which banks routinely denied to married women on the premise that the husband was in control of the family finances. One plank called for reform “based on the principle that marriage is a partnership in which the contribution of each spouse is of equal importance and value.” The counter-conference was dominated by Christian and anti-abortion delegates united under a “pro-family” banner. Spruill notes that the official delegates were so “caught up in their own conference experience” that they had “little sense” of how equally empowering the Houston weekend had proved to be to the other side.

Nonetheless, Spruill’s project of historical reclamation is an important one. While the National Women’s Conference and the competing Pro-Life, Pro-Family Rally did not quite amount to “Four Days That Changed the World” (as it was described in a Ms.magazine headline the following March), they were signal events that drew thousands of women into political engagement and offered clearly defined—if opposing—arguments in which these new activists could discover sympathies. Gloria Steinem may well have been right in a recent interview to call the National Women’s Conference “the most important event nobody knows about.”

There is another book review of the book by Gillian Thomas posted here.

October 2, 2017 in Books, Legal History | Permalink | Comments (0)

Monday, September 25, 2017

Rethinking the Legislative History of Title VII and Sex Discrimination

Arianne Renan Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Prohibition, 28 Yale J.L. & Feminism 55 (2016)

It is a pillar of employment discrimination law that Title VII’s prohibition of “sex” discrimination lacks prior legislative history. When interpreting the meaning of sex discrimination protection under Title VII, courts have stated that it is impossible to fathom what Congress intended when it included “sex” in the Act. After all, the sex provision was added at the last minute by the Southern arch conservative congressman Howard “Judge” Smith in an attempt to frustrate the Civil Rights Act’s passage. Courts have often interpreted the sex provision’s passage as a “fluke” that has left us bereft of prior legislative history that might guide judicial interpretation. It is not surprising, then, that Title VII’s sex discrimination prohibition has been rather narrowly construed. 

This Article rethinks this received narrative and emphasizes its implausibility in light of the pre-Civil Rights Act contributions feminists made to the national discourse on sex discrimination. It considers not only scholarship on Equal Rights Feminists’ role in passing Title VII’s sex provision, but also scholarship on the often-overlooked Working-Class Social and Labor Feminists. The Article also explores the contestations between these two groups over the meaning of sex discrimination. It provides a more complex narrative of the provision’s parentage than the one previously recognized. 

The Article reframes the narrative by broadening the scope of inquiry in two ways: first, by focusing on Working-Class Social and Labor Feminists’ agitation for equality in the workplace, and second, by looking further back in time in order to reconceptualize debates over workplace equality as formative of the discourse on sex discrimination. The Article begins with early twentieth century contestations over protective labor legislation and argues that Working-Class Social Feminists supported labor regulation based not merely on sex stereotypes, but on their understanding of labor regulation as a means to combat sex discrimination. It continues through the New Deal, when an early sex anti-classification provision was inscribed in federal law by Social Feminists to provide equal pay for men and women. It examines the debates over workplace sex discrimination that reverberated in the decades following World War II and persisted through the early 1960s—when Congress passed the Equal Pay Act and the President’s Commission on the Status of Women issued its report. The Article considers these developments as part of feminists’ sustained efforts to combat sex discrimination, and as stage-setters for the sex provision’s passage. It claims that Working-Class Social and Labor Feminists’ long agitation for women’s equality de-facto constitutes decades’ worth of legislative history for the sex provision. When Congress voted to include “sex” discrimination in Title VII, it was already well aware of its robust meanings, thanks in large part to these feminists’ efforts to ameliorate systemic disadvantages facing women in the workforce. 

Working-Class Social and Labor Feminists’ actions and ideology should be considered important influences on the context of the sex provision’s birth. As law is the dynamic and indeterminate product of human interaction, its interpretation must account for the complexity of the legacies that infuse it with meaning. To this end, after re-conceiving the history of the sex provision’s birth, the Article suggests this history may provide a richer notion of Title VII sex discrimination, one that emphasizes structural features of the market and requires employers to take affirmative measures to offset the features that often result in discrimination.

September 25, 2017 in Equal Employment, Legal History, Legislation, Theory | Permalink | Comments (0)

Friday, September 22, 2017

New Book Podcast on Gender, Criminal Justice, and Jim Crow

Sarah Haley, "No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity"

Recent popular and scholarly interest has highlighted the complex and brutal system of mass incarceration in the United States. Much of this interest has focused on recent developments while other scholars have revealed the connections between the development of the prison system after Reconstruction and the legacies of slavery. In her new book, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (University of North Carolina Press, 2016), Sarah Haley points to an often under recognized part of this history. Haley, an associate professor of gender studies and African American Studies at the University of California, Los Angeles, focuses on the Southern criminal justice system’s treatment and exploitation of black women during the Jim Crow era. Though black women were caught up in the criminal justice system in smaller numbers than men were, Haley shows their treatment was very important to the development of Jim Crow modernity. The brutal and violent treatment, the ideological narratives surrounding black women, and the exploitation of their labor were all key in creating the ideologies of racial capitalism and patriarchy. Haley also discusses the ways black women resisted this treatment and contented the related ideologies.

 

In this episode of New Books in History, Haley discusses No Mercy Here and this history of gender, criminal justice, and race. 

September 22, 2017 in Books, Gender, Legal History, Race | Permalink | Comments (0)

Friday, September 15, 2017

Black Women in the Law: A History and Current Assessment

by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.

September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.

The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.

While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.

Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.

More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.

Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court

September 15, 2017 in Courts, Legal History, Race, Women lawyers | Permalink | Comments (0)

Friday, September 8, 2017

Gender and Law Talks at Legal History Conference

Here are the presentations on gender and law and the upcoming annual conference of the American Society of Legal History.  The full preliminary program is here.

Lauren Thompson, Kennesaw State University, “Not for Physicians to Decide”: Medicine, Law, and Mary Ware Dennett in the Early Birth Control Movement

Cookie Woolner, University of Memphis, “Framing Women in Harlem”: Regulating Black Women’s Sexuality in the Prohibition Underworld

Katherine Luongo, Northeastern University, Mens Rea as a Cultural Matter: Adjudicating Witch-Killings in Nigeria and Tanzania

Stephanie Jones-Rogers, University of California, Berkeley, Women, American Slavery, and the Law

Luisa Stella de Oliveira Coutinho Silva, Universidade de Lisboa, Women in Colonial Paraíba: A Feminist Postcolonial Study of Brazilian Legal History, 1580s–1822

Hannah Francis, Rice University, The Impact of American Law on Free Women of Color in Nineteenth Century New Orleans

Jeffrey Gonda, Syracuse University, “All the Feeling of Being a Lady Had Been Crushed”: Black Women and Jim Crow Transportation in the 1940s

 

Roundtable: Making Reproductive Rights Law from Griswold to Whole Woman’s Health 

Chair: Kate Shaw, Cardozo Law School

Reva Siegel & Linda Greenhouse, Yale Law School, The Story of Roe v. Wade

Serena Mayeri, University of Pennsylvania, The Story of Planned Parenthood v. Casey

Cary Franklin, Yale Law School, The Story of Whole Woman’s Health v. Hellerstedt

Khiara Bridges, Boston University School of Law, The Story of Harris v. McRae

 

September 8, 2017 in Conferences, Legal History | Permalink | Comments (0)

Wednesday, September 6, 2017

New Book Podcast: Elizabeth Cady Stanton and the Feminist Foundations of Family Law

Friday, August 25, 2017

The History of Abortion Law in Victoria

Bronwyn Taylor, Judge-Made Law: The "Menhennit Ruling" and Abortion Law Reform in Victoria, 88 Victorian Historical J. (June 2017)

Women’s right to access abortion has historically been seen as controversial by lawmakers, secular and religious. Th is article examines the sources of change in Victoria’s abortion laws, and in particular the role of judicial law making. Th e late 1960s was a time of challenges to class, gender and political inequalities, locally and internationally. In Victoria during this period, with politicians unwilling to introduce abortion law reforms despite substantial community support, a conventional — even conservative — judicial ruling in 1969 changed the law in Victoria at one stroke and provided a model of legal access to abortion for other jurisdictions for the next 40 years. Th e article examines the context for, and consequences of, the decision of Mr Justice Menhennit in R v Davidson, the ‘Menhennit ruling’.

August 25, 2017 in Abortion, International, Legal History | Permalink | Comments (0)

Friday, August 18, 2017

Response: The Multiple Feminisms of a 19th Century Women's Rights Thinker

Paula Monopoli’s point in her recent review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law,  is well taken.  She notes that “[t]he only arguable weakness in this book is that after the trenchant introduction, Thomas does not do much to connect back to the different strands of feminist theory per se.”

This actually was one of the earliest ideas I had for the book, and one that interested the editor the most in the original proposal.  But in looking back at it now, it seems that this part of the manuscript ended up on the cutting room floor. (Along with a background discussion of Protestant ideas of no-fault divorce which I still miss as it placed Stanton’s idea in greater historical and religious context).

The generality of the point of multiple feminisms survived in the book, challenging the characterization of Stanton as a simplistic thinker, a mere “first generation” advocate seeking to treat women the same as men.  (And Sue Davis makes a similar point in her book The Political Thought of Elizabeth Cady Stanton about the multiple feminisms seen in Stanton’s political theory).

However, the specifics of contexts illustrating each type of feminism must be pieced together by the reader herself through the book. So let me try and explain better here.

Liberal feminism. This is the most known about Stanton, that she support a formal equality approach to treating women the same as men.  This meant reversing laws of coverture which denied women equal rights to property, inheritance, and child custody.  It meant giving women the same right to vote, hold public office, and enter the professions by college and work.  Women should be lawyers, reverends, and medical doctors.  Women should be able to own their own bank accounts.  She would have eliminated all instances where law created a separate rule based on gender, much like Ruth Bader Ginsburg advocated during her years of women’s rights work with the ACLU Women’s Rights Project.

Difference feminism.  However, Stanton did not only advocated formal equality between genders.  She also advocated specific legal and social rules for women only, for situations where women were differently situated.  Stanton advocated a maternal custody rule, giving child custody to women only.  She supported a widow’s exception for dower, tax and bankruptcy due to women’s different need.  And she advocated a women-only right to control sexual relations and procreation through abstinence, challenging the existing standard of male sexual prerogative. 

Her justification for these was an understanding that it was women who biologically bore children, and socially raised them.  She considered women’s role in raising children to be a powerful one.  Indeed, she argued that women should use this power to raise the next generation of children up with equal virtues and coeducation, so that women could transform society by their feminist parenting. 

While society used the maternal role to “protect” and restrict women’s rights, Stanton used maternity as a basis for power and a justification for right.  It’s not that men could not share in parenting, which she also advocated, but that they simply did not.  As such, women were differently situated and needed rights that corresponded to that reality.

Radical feminism.  Stanton also appreciated that the structures of law, society, and the family themselves were barriers to women’s full autonomy.  Like modern legal theorist Catharine MacKinnon, she attacked the sexualization of women -- in romantic Victorian notions and revealing décolletages -- and advocated dress reform and coeducation.  Stanton endorsed an equal moral sexual standard, that idea of men as needing to indulge their sexual passions by affairs, adultery, and command of marital relations was wrong, and that men should be restrained and liable for consequences, and that women also entitled to sexual express and sexual control.  And she would also restructure marriage from hierarchy to joint partnership.  Not just that women would retain their own separate property earned or inherited, but that marriage would have joint property belonging to both partners regardless of where obtained. 

Finally, Stanton quite radically took on the structure of the church.  After fifty years of work for women’s rights, Stanton learned that the foundational sticking point was that the basis of social and legal gender norms of women’s subordination were based in religious teachings.  She took on the Christian church’s doctrines and teachings, reinterpreting biblical passages and deconstructing the male bias in those rules. 

Overall, Stanton’s use of feminist methodology of deconstruction, critical suspicion of seemingly objective rules, and understanding of male privilege allowed her to approach legal and social critique with an all-encompassing feminist theory that shows her to be an advance and radical legal thinker.

Monopoli concludes in her review, that “the main strength of the book lies in Thomas as legal historian pulling together the arguments out of Stanton’s own writings, making them available to us and linking them to Stanton’s surprisingly modern legal theories. This book should be included on reading lists for upper-level seminars in jurisprudence, family law, and legal history, in addition to gender and the law. Reading it will introduce students to a significant legal mind, albeit an informally trained one, not traditionally included in the canon of prominent American legal thinkers.”

August 18, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Book Review: The Feminist Legacy of Elizabeth Cady Stanton

Thanks to Paula Monopoli for her great (and thorough) review of my book Elizabeth Cady Stanton & the Feminist Foundations of Family Law in the Journal of Legal Education.

 

Mother. Author. Orator. Woman Suffrage Leader: The Feminist Legacy of Elizabeth Cady Stanton

 

Tracy Thomas’s new book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, provides extensive support for the claim that Stanton was “the intellectual giant of the [women’s rights] movement.” In this eminently readable yet deeply substantive work, Professor Thomas argues that Stanton was a foundational theorist for modern feminism. Until recently, Stanton’s intellectual contributions have not been widely explored, and Thomas aims to rectify that oversight. She situates Stanton in her rightful place by focusing on Stanton’s writings and advocacy in the area of family law. Thomas does a persuasive job, using Stanton’s views on marital property law, divorce, voluntary and involuntary maternity, and the custody of children as a lens through which to examine broader themes about women’s status as equal citizens in our republic. She also documents Stanton’s intellectual contributions in a way that informs current debates about gender equality.


While Stanton’s writings ranged broadly on the subordination and emancipation of women, Thomas narrows in on Stanton’s views on the subjugation of women within marriage. She also reveals Stanton’s extensive, if de facto, training in law through her father’s practice, law library and clerks. “As a young woman, Stanton had read widely in her father’s law library and discussed cases with him . . . . [H]er legal training allowed Stanton to bring to the early women’s rights movement a keen sense of the role of law in creating inequality between the sexes.” Thomas argues that this understanding of the common law itself and her understanding of how to construct legal arguments were central to Stanton’s efficacy as a theorist and an advocate.

 

Thomas begins by examining Stanton’s personal story. Stanton was a harried mother of three children under the age of ten when she convened the first women’s rights convention in Seneca Falls in 1848. In the decade that followed, she went on to have four more children and to advocate tirelessly for women’s equality. Thomas points out how much the adage “the personal is the political” applied to Stanton, as she wrote to her partner in advocacy, Susan B. Anthony, for help:


Can you get any acute lawyer . . . sufficiently interested in our movement
to look up just eight laws concerning us—the very worst in all the code? I
can generalize and philosophize easily enough myself; but the details of the
particular law I need, I have not time to look up. You see, while I am about
the house, surrounded by my children, washing dishes, baking, sewing, etc.,
I can think up many points, but I cannot search books, for my hands as well
as my brains would be necessary for that work . . . . Men who can, when they
wish to write a document, shut themselves up for days with their thoughts
and their books, know little of what difficulties a woman must surmount.

 

These words would resonate with many female scholars today. After this first letter, Stanton again wrote to Anthony to tell her that the legislative testimony she was trying to finish was not nearly done and that her deadline was rapidly approaching. Anthony responded by coming to babysit while Stanton finished the address. Having a public voice requires time and energy. But bearing a disproportionate share of family caregiving makes such public participation difficult and remains a structural barrier to gender equality today.

 

Thomas integrates these and similar examples of the connection between the nineteenth-century Stanton and modern-day feminists. She begins her book with an introduction that gives the reader a thumbnail sketch of modern feminist theory. Thomas outlines the distinctions among liberal feminism, with its focus on formal equality; difference feminism, with its focus on resolving subordination by recognizing women’s biological, relational, and cultural differences; and radical or dominance feminism, which situates subordination in the victimization of women as sexual objects and emphasizes the need for structural reforms. Thomas argues that Stanton’s views on family law reform informed modern feminist theory. 

 

***

 

As Thomas notes, many of the reforms that Stanton wrote about and advocated for in terms of property, marriage, divorce, and custody have become the legal status quo. But in these turbulent times, Thomas’s book reminds us how fragile those gains are and how radical they still seem to many in our society. As Stanton lamented, after “years of untiring effort” to obtain guarantees of property and custody, those statutes were “repealed in States where we supposed all was safe.”Her cautionary note to be vigilant rings as loudly in 2017 as it did in 1876, and we would do well to heed it. Professor Thomas’s excellent new book has given us additional intellectual tools to do just that.

August 18, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Monday, July 31, 2017

Book Podcast: After Roe: The Lost History of the Abortion Debate

New Legal History Podcast: Mary Ziegler's After Roe

In this special summer episode, we take a step back from reviewing to introduce listeners to H-Law's new legal history podcast. Robert interviews H-Law's podcast producer and host Siobhan Barco and we run in full her first episode, an interview with legal scholar Mary Ziegler, author of After Roe: The Lost History of the Abortion Debate (Harvard University Press, 2015). From Siobhan's description of the episode:

Ziegler’s work uses the landmark American abortion rights case, Roe vs. Wade to explore litigation as a vessel for social change and the role the court plays in democracy. In addition to traditional archival research, Ziegler recorded over one hundred oral histories of people in the pro-life and pro-choice camps, allowing her to move beyond caricatures and delve more precisely into the  catalysts for these individual’s points of view.

Topics we discuss include:

(1)Whether Roe is overstated as a cautionary tale for judicial intervention

(2)How the bright line divide between the pro-life and pro-choice movements had not yet coalesced in the 1970s.

(3)Roe as a canvas onto which activists could project different strategic aims

July 31, 2017 in Abortion, Books, Legal History | Permalink | Comments (0)

Book Review: Gendered Law in American History

Janet Halley, Book Review: Richard Chused & Wendy Williams, Gendered Law in American History (2016), JOTWELL

Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what didhappen with this issue or that in the transformative-yet-reactionary 19th Century?

 

But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours.  But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!

 

The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths.

*** 

One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.

July 31, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Friday, July 14, 2017

Judge Throws Out Conviction of Woman Who Laughed in Sessions Hearing

NPR, Judge Throws Out Conviction of Woman who Laughed at Jeff Sessions

Instead of sentencing a woman to jail time for laughing during Jeff Sessions' confirmation hearing, a D.C. judge threw out the woman's conviction and called for a new trial.

Desiree Fairooz says her laughter during the attorney general's confirmation hearing in January was involuntary. (She was reacting to an assertion that Sessions treats all Americans equally.) Fairooz, who is an activist with the Code Pink organization, then protested as she was physically removed from the hearing. In May, she was convicted by a jury of disorderly, disruptive conduct and obstructing passage on U.S. Capitol grounds.

The charges carried up to a year in prison and a fine of up to $2,000. Two other protesters at Sessions' hearing faced similar charges.

But on Friday, the D.C. Superior Court judge overseeing Fairooz's sentencing called for a new trial instead.

July 14, 2017 in Courts, Legal History | Permalink | Comments (0)

Wednesday, June 28, 2017

Books: New Directions in the History of Conservative Women

Karen Patricia Heath, New Directions in the History of Conservative Women

Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).
 
Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).
 
Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).
 
Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).

As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?

June 28, 2017 in Books, Legal History, Theory | Permalink | Comments (0)

Friday, June 2, 2017

The Matriarchate: The Use of the Wonder Woman Image in the 19th Century Women's Movement

From Chapter 6, "Our Girls," in Tracy A. Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016)

Toward the end of Elizabeth Cady Stanton's long career advancing women's rights and legal reform, she renewed her efforts to deconstruct the foundations of women's continued subordination.  Why did many women themselves not endorse reform and equality?  Why did so many women say "I have all the rights I want."  Stanton located the source of social subordination in the teachings of the church, which women heard every week from the pulpit and every day in the papers.  She dedicated her last decade of life to challenging the gendered interpretations of the Bible and offering alternative feminist understandings of religious doctrine.

As part of that, Stanton drew  on new emerging ideas of anthropology of matriarchal societies which she used to show that female power and women-ruled societies were viable alternative ways to structure power.  Almost a century later, at the 1977 National Women's Conference in Houston, Gloria Steinem embraced Stanton’s theory of the matriarchate, using it similarly to emphasize the viability of an alternative system of female power.

 

The Matriarchate

In the early 1890s, Elizabeth Cady Stanton added to her historical argument of the perversions of the church, by offering an alternative to this ordained gender structure of “the matriarchate.” She incorporated this theory of maternal power into addresses to national conventions, writings on Wyoming’s new grant of women’s suffrage, and in other essays on women’s rights.[i] Stanton drew on emerging anthropological theories of matriarchal societies, prehistoric cultures like the Amazons, Iroquois, and others in which women ruled as the creative force wielding power and peaceful governance. The theory of matriarchy was a popular idea that emerged in the late nineteenth century, originating with Swiss lawyer and jurist Johann Jakob Bachofen and advanced by Marxist thinker Friedrich Engels and others.[ii] The theory of a matriarchal prehistory held that earlier societies existed in which women controlled government and property, created the first families, developed agriculture, and were worshipped as goddesses because of their reproductive and caregiving abilities. A “patriarchy cataclysm” disrupted the peace, harmony, and ecological balance of these matriarchal systems with intervening wars and weapon development, after which patriarchy evolved as the superior social structure and provided survival and advancement.[iii]           

 

Stanton wrote from England in 1890 that she had “been reading the whole year to glean these facts” about the matriarchate by studying British scholars.[iv] She was likely also influenced by her colleague, Matilda Joslyn Gage, who was developing similar theories about religion on matriarchy later published in her magnum opus, Woman, Church, and State.[v] Stanton, like Gage, appropriated the anthropological matriarchal theories of the nineteenth century for her own feminist purposes. For these theories had been developed to justify the converse, the superiority of patriarchy. They held that society had evolved from the unsophisticated, chaotic matriarchal systems into ordered and aggressive systems grounded in patriarchy. Stanton, interpreting the theory through her feminist lens, concluded that the matriarchate provided historical evidence of women’s ability and superior powers and the negative influence of the destructive forces of male aggression and patriarchy. “Thus, instead of being a ‘disability,’ as unthinking writers are please to call it, maternity has been the all-inspiring motive or force that impelled the first steps” toward “the birth of civilization.” Matriarchal theory was attractive because it freed women’s rights advocates from the “charge of their critics that male dominance was biological and eternal, and therefore inevitable and unchangeable.” Stanton used this evidence not to advocate a return to female supremacy, but rather as evidence of women’s capabilities sufficient to support an “Amphiarchate,” a shared power between women and men in the “as yet untried experiment of complete equality.[vi] Second-wave feminists of the late twentieth century resurrected these ideas of the matriarchate bolstered by archeological finds of prehistoric fertility goddesses and a strong current of feminism seeking support for alternative gender structures of power.[vii]

Notes 

[i] “Matriarchate,” 227; “Her Political Status,” Evening Star, Feb. 25, 1891; “The Matriarchate Mother-Age,” Woman’s Tribune, Feb. 28, 1891; “The Matriarchate or Mother-Age,” National Bulletin, Feb. 1892; ECS, “Wyoming,” Woman’s Tribune, July 5, 1890; ECS, “Wyoming Admitted as a State into Union,” 134 Westminster Review 280 (Sept. 1890); “Antagonism”; Mrs. Stanton on Our Foremothers, Woman’s Journal, Dec. 29, 1894; ECS and SBA, “Women’s Rights,” in Johnson’s Universal Cyclopedia v. VIII (Charles Kendall Adams, ed. 1895).

[ii] Bachofen, Mother Right: A Study of the Religious and Juridical Nature of Gynecocracy in the Ancient World (1861); Friedrich Engels, Origin of the Family, Private Property, and the State (1884).

[iii] ECS, “Karl Pearson on the Matriarchate,” Women’s Penny Paper, Nov. 8, 1890; ECS, “The Matriarchate, or Mother-Age,” National Council of Women, Feb. 22-25, 1891; ECS, “The Antagonism of Sex,” National Bulletin, June 1893; ECS, “Then Woman Said: ‘I Will,’” Dec. 23, 1894; ECS, “Moral Power, or Brute Force?” Boston Investigator, Feb. 25, 1899; ECS, “The Antagonism of Sex,” Boston Investigator, Mar. 16, 1901; Woman’s Bible, 25; Cynthia Eller, Gentlemen and Amazons: The Myth of Prehistory, 1861-1900 6-7 (2011); Cynthia Eller, The Myth of Matriarchal Prehistory 3-15 (2000).

[iv] ECS to Clara Colby, Feb. 21, 1891; ECS, “Reminiscences,” Woman’s Tribune, Mar. 19, 1892.

[v] Fitzgerald, xxi; Kern, 67; HWS, v.I, 753; Matilda Joslyn Gage, “The Matriarchate,” 2 The Open Court 1480-81, Jan. 5, 1889. Gage’s son-in-law, Frank Baum, actualized Gage’s theory of matriarchal power in his “The Wizard of Oz” book series.

[vi] “Matriarchate,” 227; “Antagonism”; Woman’s Bible, 25; Eller, Amazons, 123, 130-32.

[vii] Gloria Steinem, Wonder Woman, in Eller, Myth, 1-2; Merlin Stone, When God Was a Woman (1976); Riane Eisler, The Chalice and the Blade (1987).

June 2, 2017 in Books, Gender, Legal History | Permalink | Comments (0)

Friday, May 12, 2017

The Story of Ida Platt: The First Black Woman Lawyer in Illinois

Gwen Jordan, "A Woman of Strange, Unfathomable Presence": Ida Platt's Lived Experience of Race, Gender & Law, 1863-1939"

In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.

Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.

 

May 12, 2017 in Legal History, Race, Women lawyers | Permalink | Comments (0)

Wednesday, May 3, 2017

Essays on Women, Gender, and Law in Medieval Studies

Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)

In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.

 

Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray 

Ecaterina Lung, Depictions of Women in the Works of Early Byzantine Historians and Chroniclers: Stereotype and Reality 

Niki Megalommati, Women and Family Law in Byzantium: Some Notes

Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage

Amy Livingstone, Pious Women in a "Den of Scorpions": The Piety and Patronage of the Eleventh-Century Countesses of Brittany

Teresa Phipps, Misbehaving Women: Trespass and Honor in Late Medieval English Towns

Miriam Shadis, The Personal and the Political in Testaments of the Portuguese Royal Family (12th & 13 c)

Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona

Stanley Chojnacki, Wives and Goods in the Venetian Palazzo

May 3, 2017 in Family, International, Legal History | Permalink | Comments (0)

Friday, April 28, 2017

Gender, Class, and Science in the 19th Century Patent Office

Kara Swanson, Rubbing Elbows and Blowing Smoke: Gender, Class, and Science in the 19th Century Patent Office, 108 J. History of Science 1 (2017)

The United States Patent Office of the 1850s offers a rare opportunity to analyze the early gendering of science. In its crowded rooms, would-be scientists shared a workplace with women earning equal pay for equal work. Scientific men worked as patent examiners, claiming this new occupation as scientific in opposition to those seeking to separate science and technology. At the same time, in an unprecedented and ultimately unsuccessful experiment, female clerks were hired to work alongside male clerks. This article examines the controversies surrounding these workers through the lens of manners and deportment. In the unique context of a workplace combining scientific men and working ladies, office behavior revealed the deep assumption that the emerging American scientist was male and middle class.

April 28, 2017 in Education, Legal History | Permalink | Comments (0)

Tuesday, April 25, 2017

Challenging the Idea that Feminism Occurred in Waves

The Future is Feminist: The new book Finding Feminism embraces queer women and argues that feminism does not occur in waves.

In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.

 

Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”

 

Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***

 

 

Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.

April 25, 2017 in Gender, Legal History, LGBT, Theory | Permalink | Comments (0)

Thursday, April 6, 2017

In 1783 Woman Petitions Former Slave Master's Estate for Pension

I'm always interested in new examples of women's historical agency and use of the law.  

Women Petitioners: Belinda Sutton, an Ex-Slave in Massachusetts

In February 1783, Belinda Sutton petitioned the Massachusetts General Court for a pension from the estate of Isaac Royall Jr, her late master. (In this petition she names herself simply ‘Belinda, an Affrican’, but in later documents she gave the surname Sutton, her married name.) She had been born in Ghana 70 years earlier and kidnapped by slavers when she was just 12 years old.  The petition is one of the earliest narratives by an African-American woman, and an early demand for reparations for the injustice and exploitation of slavery. The court ordered that she should have her pension, but she had to petition again a number of times in later years to continue receiving it.

 

The Petition of Belinda an Affrican, humbly shews.

That seventy years have rolled away, since she on the banks of the Rio da Valta received her existence. The mountains covered with spicy forests, the valleys loaded with the richest fruits, spontaneously produced, joined to that happy temperature of air to exclude excess, would have yielded her the most compleat felicity, had not her mind received early impressions of the cruelty of men, whose faces were like the moon, and whose bows and arrows were like the thunder and the lightning of the clouds. The idea of these, the most dreadful of all enemies, filled her infant slumbers with horror, and her noontide moments with cruel apprehensions! But her affrighted imagination, in its most alarming extension, never represented distresses equal to what she hath since really experienced. For before she had twelve years injoyed the fragrance of her native groves, and e’er she realized, that Europeans placed their happiness in the yellow dust which she carelessly marked with her infant footsteps, even when she, in a sacred grove, with each hand in that of a tender parent, was paying her devotions to the great Orisa who made all things, an armed band of white men, driving many of her countrymen in chains, rushed into the hallowed shades! Could the tears, the sighs and supplications, bursting from tortured parental affection, have blunted the keen edge of avarice, she might have been rescued from agony, which many of her countrys children have felt, but which none hath ever yet described. In vain she lifted her supplicating voice to an insulted father, and her guiltless hands to a dishonoured deity! She was ravished from the bosom of her country, from the arms of her friends, while the advanced age of her parents, rendering them unfit for servitude, cruelly separated her from them forever!

 

Scenes which her imagination had never conceived of – a floating world – the sporting monsters of the deep and the familiar meetings of billows and clouds strove but in vain to divert her melancholly attention, from three hundred Affricans in chains, suffering the most excruciating torments; and some of them rejoicing that the pangs of death came like a balm to their wounds.

 

Once more her eyes were blest with a continent – but alas! how unlike the land where she received her being! Here all things appeared unpropitious – she learned to catch the Ideas, marked by the sounds of language, only to know that her doom was slavery, from which death alone was to emancipate her. What did it avail her, that the walls of her lord were hung with splendor, and that the dust troden underfoot in her native country, crowded his gates with sordid worshipers? The laws had rendered her incapable of receiving property, and though she was a free moral agent, accountable for her actions, yet she never had a moment at her own disposal!

 

Fifty years her faithful hands have been compelled to ignoble servitude for the benefit of an Isaac Royall, untill, as if nations must be agitated, and the world convulsed for the preservation of that freedom which the Almighty Father intended for all the human race, the present war was commenced. The terror of men armed in the cause of freedom, compelled her master to fly and to breathe away his life in a land where lawless domination sits enthroned, pouring bloody outrage and cruelty on all who dare to be free.

 

The face of your petitioner is now marked with the furrows of time, and her frame feebly bending under the oppression of years, while she, by the laws of the land, is denied the injoyment of one morsel of that immense wealth, a part whereof hath been accumilated by her own industry, and the whole augmented by her servitude.

 

Wherefore casting herself at the feet of your honours, as to a body of men, formed for the extirpation of vassalage, for the reward of virtue, and the just returns of honest industry, she prays, that such allowance may be made her out of the estate of Colonel Royall, as will prevent her and her more infirm daughter from misery in the greatest extreme, and scatter comfort over the short and downward path of their lives

And she will ever pray.

Petition of an African slave, to the legislature of Massachusetts (full text of the printed version of Belinda’s petition, reprinted in William & Mary Quarterly)

April 6, 2017 in Legal History | Permalink | Comments (0)